A grassroots rebellion appears to be brewing against a decision by St. Louis County Planning Director Barb Hayden that added a new, previously not-permissible, use in one of the county’s most common zoning districts— and did so without a public process.

In her ruling, which was made behind closed doors on March 15, 2010, Hayden acknowledges that the county’s zoning ordinance does not allow for “public/semi-public uses” in the Forest and Agricultural Management district, otherwise known as FAM. But she calls that an oversight by the county board, and concludes as a result that proposed new schools in Field and New Independence Townships can go ahead at their present sites, even though both are located in FAM districts and both qualify as public/semi-public uses.

Hayden had to make such a determination in order to fit the square peg (the schools) into the round hole of a zoning ordinance that doesn’t allow for such a use in FAM areas, a district that is reserved for low-density development geared towards forest management and agriculture.

The issue arose because the school district’s consultants apparently never considered zoning in their school site selection process. After convincing the school board to purchase both sites, they ran into the issue when county planning staff realized the ordinance didn’t allow for public/semi-public use in FAM districts.

For county planning staff, Hayden’s determination may have seemed an easy way to solve a problem quickly and quietly, without the uncertainty of taking such an issue through the usual, public process for amending the ordinance. County officials were worried that seeking a change in the FAM district would generate significant opposition, both from the public as well as township officials, many of whom don’t take changes to the ordinance lying down.

Instead of the no-fuss result county planners may have anticipated, they are finding that a decision that they intended to handle in-house, with no public notice of any kind, has become the focal point of attention, both from opponents of the school district’s restructuring plan, as well as from township representatives who don’t like to see their rights taken away by administrative fiat.

The Coalition for Community Schools was the first group to challenge Hayden’s decision, only to have Hayden toss it out on technicalities. That appeal has since been resubmitted and awaits word from the county attorney. But the city of Tower, which owns hundreds of acres of land in FAM districts, filed their own appeal late last week, and some township officials are now planning to file protests of their own.

It has the makings of a true grassroots uprising, this time over who really controls the county’s zoning ordinance—the bureaucrats in Duluth, or the people of the county?

In her defense, Director Hayden claims she has made similar determinations in the past. If so, that’s something the county board might want to explore a bit more.

It’s one thing for an administrator to interpret the ordinance, but Hayden’s determination goes well beyond that. By permitting a new use that she admits the ordinance currently doesn’t allow, Hayden must either be granting a use variance (if this is a one-time, case-specific determination), or changing the wording of the ordinance on a permanent basis. Either way, such a decision requires public notice and opportunity for public involvement, and the decision should rest with either the county board or the board of adjustment, not the planning director.

To date, the planning staff has been able to maintain their convenient little tradition of massaging the ordinance in secret to suit their needs. But that tradition is in jeopardy now that it’s come to the public’s attention in the midst of a major controversy.

And the public has a right to be concerned. The whole idea of zoning is that there is one set of rules that applies to everyone, and that the whole system operates in the open so we can all have confidence in the process.

In this case, however, we have an administrator who made a key decision, based on suppositions and who knows what else, and did it entirely behind closed doors. While a copy of her decision leaked out after a couple of individuals, myself included, started raising questions, it’s clear that when she made her ruling, Director Hayden had no intention that it would ever see the light of day.

It amounts to a substantive change in the reading of the county ordinance, but the text of her unilateral decision was never posted on the county’s website, was never published in their official newspaper, and never appeared in the minutes of any county meeting.

But when the Coalition for Community Schools tried to appeal Hayden’s decision, she claimed they were already too late. She said the public notice of her decision was issued when another county planner, Mary Anderson, gave her own brief interpretation of Hayden’s ruling in response to a question at the March 25 planning commission meeting.

That might meet the standards set in the county planning office, but I doubt that explanation will convince many township officials in the county when they realize the ordinance was changed without their knowledge, or their input. That’s not how the system is supposed to work.