Man questions lack of zoning

Jason Ferguson

Can a Homeowners’ Association (HOA) perform the functions of a road district in Custer County? How involved does the county get in the affairs of an HOA? Can an HOA and road district be tied together?
These were among the questions posed by county resident Bill Nielsen to the Custer County Commission at the commission’s Nov. 10 meeting. Nielsen posed the questions during the public comment portion of the meeting.
“I think we have a little bit of a problem for consumers who are citizens when we read local ordinances because there may be a source listed but you have to chase everything uphill to the state statutes,” Nielsen said, while suggesting the county consider elaborating more when writing ordinances. Nielsen pointed to the county’s Ordinance No. 2, which regulates subdivision of land and land use.
“We have Ordinance 2, which affects most people moving to Custer County, because it’s how you can build,” Nielsen said. “I don’t know though if there is enough information in the ordinance to explain some things.”
Nielsen didn’t say specifically what was going on in his HOA at Copper Leaf Subdivision on the eastern part of the county that had him concerned, but he did wonder if there was a chance Ordinance 2 could be changed to include some sort of zoning, such as residential, commercial and industrial. Nielsen said residential zoning could be broken into three subsets, with section A being “anything goes,” B being home businesses but “not your home as a business” and C would be no commercial activity at all.
“Then people coming into the county, buying or building would know exactly what they are getting into,” he said. “Everybody has a right to know what they are getting into. Some people want things the way they were. Some people want to create a commercial activity. I don’t think these two things are compatible.”
Custer County does not have zoning, and the current and past commission have shown no inclination to implementing zoning in the county. Commission chairman Jim Lintz told Nielsen as much after Nielsen spoke.
“We have discussed this a lot. The county shies away from zoning altogether,” he said. “In this county there is still freedom of choice and we haven’t put any restrictions on it. The restrictions put on are put on by subdivisions.”
Any violation of HOAs within a subdivision must be remedied through the civil process, Lintz said. The county does not enforce covenants.
After the meeting Nielsen further explained his concern with the issues.
“Millennia of years ago the sun was a god, the earth was flat and there was no life other than on Earth.  We know today that is not true.  Time passes, we learn and things change,” he said. “We must be willing to change too; we cannot simply put our heads in the sand. It’s time to bring Custer County Ordinance 2 up to date, and resolve the conflict between road district trustees, road district officers and HOA officers.”
Nielsen said he felt permitted residential property use must be as clear as possible to enable easy understanding of how property owners, or individuals contemplating purchasing property, may use property, and that what he sees as a road district/HOA trustee/officer handling of funds mess must be resolved—probably by the state legislature.
Neilsen said if the commission will not amend Ordinance Number 2 to include additional breakdown of residential use,  he felt at a minimum, states attorney Tracy Kelley could write meaningful “land use” clauses that would be guaranteed acceptable to our courts that a subdivider could insert in covenants, conditions and restrictions  filed with Custer County Register of Deeds.  
In other news from the Nov. 10 meeting, the commission:
• Learned the Town of Hermosa had agreed to pay the county $8,000 to help with ever-increasing dispatch services. Custer County Sheriff Marty Mechaley said he approached the Hermosa Town Board about helping with the cost and was pleased they agreed to do so.
• Heard from commissioner Travis Bies, who said he learned of available funding from the state to help with collector roads that lead into Custer State Park. Bies said Custer State Park must request the funding, and Bies said he met with park superintendent Matt Snyder about the funding. Although it probably won’t happen in fiscal year 2022, fiscal year 2023 is a strong possibility.
• Had Bies volunteer to be the county’s liaison to the Custer YMCA. YMCA board member Janet Boyer and YMCA director Rex Jorgensen were present at the meeting, with Jorgensen pitching the idea of having a county representative on its board the same way the City of Custer does. He said doing so would allow for the free flow of information from the YMCA to the county.


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