Tower’s zoning ordinance

A sleepy small town can get by with a messy zoning ordinance. But “sleepy” isn’t the term for the city of Tower these days. From new commercial activity to new housing, development and potential development has finally come to Tower, and it seems each project exposes the flaws, contradictions, and questions that arise from the city’s hodgepodge of a zoning ordinance.
The most recent zoning controversy is over a land use permit issued to Superior Fuel, which wants to convert a fuel oil storage depot that used to belong to Wilderness Fuel to a propane storage depot featuring a 30,000-gallon propane tank. The site currently holds several old above-ground fuel oil tanks that were installed decades ago, well before the enactment of the city’s zoning ordinance. Since then, the area has been zoned residential, which does not allow fuel storage facilities. Yet, because the facility pre-dates the enactment of the ordinance, the city “grandfathered” it in.
Typically, grandfathering is designed to give a landowner a certain amount of time to come into compliance with an ordinance. In this case, Wilderness Fuel was granted decades, much to the chagrin of some of its neighbors, who complained the site was an eyesore.
The city’s primary zoning ordinance seemed to suggest that the nonconforming storage tanks could continue to exist indefinitely. But once removed, as Superior Fuel had proposed, any new structures were supposed to come into compliance. That would have been nearly impossible for Superior Fuel, since the zone district does not allow for fuel storage depots.
While that ordinance seemed to offer some clarity, an amendment to the ordinance was enacted by the city a few months after the original version was approved in 1997 that appears to eliminate the original language and replace it with language that doesn’t appear to address non-conforming structures at all.
Whether that amendment has been superseded by subsequent changes to the original ordinance enacted more recently is hard to know. The attorney for Superior Fuel wrote a letter to the city’s zoning administrator last month citing the original language.
The council voted last week to seek clarification from the city’s attorney, but it’s likely to be a challenge for any attorney to make sense of it.
The city needs to do better, but getting from the ordinance that exists today to one that’s going to be understandable and practical to enforce is a major undertaking. Planning and zoning officials tried to develop some sensible upgrades a few years ago but gave up when the scale of the undertaking became clearer.
Adding to the complexity and confusion is the city’s separate shoreland ordinance that was clearly cut and pasted from some other jurisdiction and contains rules, requirements, and standards that the city has struggled to even understand, much less enforce.
Because the city has, in the past, failed to adequately document the thinking behind some of this language, it is that much more difficult to discern what city officials had in mind. Had a resolution or findings of fact accompanied the ordinance and the many changes over time, it would have helped city officials today to understand the intent of the current ordinances and help to navigate through the confusion.
A confusing ordinance presents problems for the city, for businesses thinking of locating in the community, and for citizens of Tower who want some assurance that future development will be orderly, which is the primary purpose of a land use ordinance. The current lack of clarity poses risks for the city because it increases the prospects of litigation and can leave both business owners and neighbors of those businesses disgruntled.
The city has, in recent years, not always acted consistently in its response to business proposals. That’s true largely because of the lack of clarity and inconsistencies between the primary ordinance and the shoreland ordinance.
While the city is generally loathe to spend money for professional services, this is one instance in which the city might benefit from obtaining help from a qualified individual or firm to rewrite its land use ordinances. It’s too big a job for volunteers, no matter how well-meaning.
This is not to suggest the city simply outsource an ordinance rewrite. City officials would need to be closely involved in the process to ensure that it meets the community’s desires, and most critically, to be sure it is simple and efficient to enforce. Tower may be moving and shaking these days, but it still lacks the staffing capacity to effectively implement a complex ordinance, much less a contradictory and confusing one.
A better ordinance would be good for business, for residents, and help to facilitate the kind of growth that residents want to see. It’s worth the investment.