11. Halla Nursery: Settlement Agreement.i
MEMORANDUM
CITY OF 11. 1___�
CHANHASSEN
690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
(612) 937 -1900 • FAX (612) 937 -5739
TO: Don Ashworth, City Manager
FROM: Kate Aanenson, AICP Planning Director
Steve Kirchman, Building Official
SUBJ: Proposed Halla Settlement Agreement
DATE: September 4, 1996
Attached is the proposed settlement agreement as proposed by Councilman Senn and as
drafted by the City Attorney. Staff recommends that this discussion take place in an
executive session. This issue is a result of litigation regarding building without a permit.
The issue has gone beyond that now and Councilman Senn's proposed settlement
agreement grants legal non - conforming rights to the property. Again, staff would like to
discuss this issue with the Council.
Steve Kirchman will not be available at the City Council meeting on September 9, 1996,
but would be available to meet on September 23, 1996. If the Council desires the
executive session, it could be held at 7:00 p.m. before the regular Council meeting.
\ \cfsI \vo12 \plan\ka \halla.cc.doc
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A
STATE OF MINNESOTA
COUNTY OF CARVER
City of Chanhassen,
Plaintiff,
VS.
Halla Nursery, Inc., a
Minnesota corporation,
Defendant.
STIPULATION, made this day of
1996, by, between,
and among the CITY OF CHANHASSEN, a Minnesota municipal corporation ( "City " ), and
HALLA NURSERY, INC., a Minnesota corporation, ("Owner").
WHEREAS, Owner owns the following described property ( "Subject Property ")
located at 10,000 Great Plains Boulevard in the City of Ch anhassen, Carver County, State of
Minnesota consisting of approximately 11.5 acres now dev
center use and legally described as follows, to -wit:
Lot 10, Block 1, Great Plains Golf Estates, according to the
recorded plat thereof, Carver County, Minnesota.
The Subject Property is zoned A -2, Agricultural Estate District.
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Jul 22,96 10:21 No.003 P.02/14 I
DISTRICT COURT
'
FIRST JUDICIAL DISTRICT
CASE TYPE: 10 /Other Civil
'
Court Fite No. C8- 94 -$51
1
t
STIPULATION FOR ENTRY
OF JUDGMENT
'
'
,
'
'
oted to retail nursery and garden
'
'
I CHI °1PBELL, KNUTSON, SCOTT & FUCHS, P.H Jul 22,96 10:22 No.003 P.03/14
' WHEREAS, in early 1994, Owner constructed a new retail sales building ( "Garden
Center ") of approximately 5,000 square feet on the Subject Property, and no building permit
or zoning approval was obtained. Owner has since used the Garden Center for retail sale of
goods to the general public.
WHEREAS, in May 1994, the City inspected the Garden Center. The City Building
Official found that the Garden Center did not comply with the Uniform Building Code
I ( "UBC ") requirements for a B -2 occupancy.
WHEREAS, on June 1, 1994, the City initiated a civil lawsuit against Owner seeking
to permanently enjoin Owner's operation of a retail commercial business from the Garden
Center unless zoning approval was obtained, a Building Permit was obtained, the necessary
requirements for a B -2 occupancy were satisfied and a certificate of occupancy issued.
WHEREAS, on July 15, 1994, Owner filed an Answer and Counterclaim to the
City's Complaint.
WHEREAS, the Owner wants to provide for the long term land use of the Subject
Property.
WHEREAS, the City is desirous of exercising its zoning and police powers for the
F
public good.
WHEREAS, the parties desire to amicably resolve and settle their differences and to
avoid the cost of further litigation.
NOW, THEREFORE, the parties stipulate as follows:
1. NONCONFORMING USE PERMIT APPROVAL ( "NUP "). The City
hereby grants NUP approval in accordance with the terms of this Stipulation. Except as
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-2-
CAHF'BELL, KN UTSON, SCOTT & FUCHS, P.R Jul 22,96 10 :22 No.003 P.04i14 '
otherwise provided herein, the Subject Property shall be subject to the zoning regulations of '
the A -2 zoning district, as may be amended from time to time. No permitted, conditional, or
interim uses are allowed, however, except for the following existing uses at the locations
identified on Exhibit "A ".
A.
Office, Garage, Sales Building
K.
Storage Bins
B.
Garden Center
L.
Peacock Barn
C.
Grccn Houses
M.
Game Barn
D.
Shade IIouse
N.
Bridge
E.
Future Green IIouse
O.
Future Storage Bins
F.
Storage Building
P.
Parking
G.
Play Area /Gazebo
Q.
Outdoor Display of Materials
H.
Truck /Storage Building
R.
Storage, Growing and Outdoor
I.
Potting /Storage Building
Display of Nursery Stock
J.
Pump IIouse
S.
Permitted Signage.
The requirements of the City's Zoning Ordinance, as may be amended from time to time,
shall apply to the use of the Subject Property. These designated existing building and uses
may continue in compliance with this Stipulation unless such buildings or uses have become a
public nuisance as determined by a court of competent jurisdiction.
2. PLAN APPROVAL. The City hereby approves the Site Plan dated
1996, prepared by Owner and attached hereto as Exhibit "A ". The use
of the Subject Property shall be in accordance with the Site Plan, If the Site Plan varies
from the written terms of this Stipulation, the written ternls shall control.
r
r
3. GARDEN CENTER. The Garden Center identified as Building B on Exhibit '
"A" may not be enlarged beyond its current footprint, nor may a basement or second story
be added.
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C
' C Ht•1F'BELL , KNUTSON , SCOTT & FUCHS , P . R Jul 22 , 96 10:23 No . 003 P.05,/14
' A. Retail Sales - Defined. Retail sales means sales to the general public of
products used in the care and maintenance, beautification and installation of lawns and
' gardens, as listed on the attached Exhibit "B ". (Permitted Products).
1 B. Retail Sales Prohibited. All retail sales are strictly prohibited, except as
expressly allowed pursuant to this Stipulation.
' C. AIlowed Retail Sales. The Y may eneral public enter and use the Garden
g F
Center, Greenhouses, Office and the outdoor areas shown as K, O, p and R for the purpose
' of viewing, selecting and purchasing Permitted Products. All cash register checkout activity
must take place inside the Garden Center.
' D. Expansion of Retail Sales. The buildings and outdoor areas where retail sales
are permitted may not be expanded or relocated without the prior written approval of the
City.
E. Expansion of List of Permitted Products. The list of Permitted Products
' may not be expanded without the prior written consent of the City. The list of Permitted
Products may not be expanded to include power tools which are not hand held, farm
' implements, motor vehicles, snow plows
or snow lows low blades, or recreational vehicles or
P
non - handheld equipment of any kind.
F. Inspection. The City may inspect those portions of the Subject Property and
'
buildings which are open to the general public, without advance notice to the Owner, during
g p g F g
' the business hours when those portions of the Subject Property and the buildings are open to
' the general public. The City agrees to conduct the inspections in a reasonable manner, and
without any undue disruption to Owner's use of the Subject Property.
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CAI IPBELL, KNUTSON, SCOTT & FUCHS, P.R
Jul 22,96 10:23 No.003 P.06/14 '
4. NURSERY. I
A. Nursery Stock - Defined. Nursery stock means flowers, shrubs, plants and
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07/22/96 -5-
'
trees.
B. Indoors. The buildings on the Site Plan identified as C, D, E, I, L and M
may be used for growing, storage and display of nursery stock.
'
C. Outdoors. The outdoor area identified as R may be used only for growing,
storage and display of nursery stock.
D. Expansion of Nursery. The buildings and outdoor areas where nursery
,
activities are permitted may not be expanded or relocated without the prior written approval
City.
'
of the
S. CONTRACTOR'S YARD.
'
A. Approval. The outdoor areas identified on the Site Plan as CY
'
Contractor's Yard may be used for the outdoor storage of vehicles, materials and equipment.
B. Screening. The outdoor areas identified as CY on the Site Plan must be
'
screened, fenced or landscaped to provide complete screening of all vehicles, materials and
,
equipment from public streets and any property not owned by Owner.
C. Buildings. The buildings identified as A, F, H and J may be used for storage
'
of Owner's vehicles, equipment and materials used in conjunction with the Contractor's
t
Yard.
D. Expansion of Contractor's Yard. The buildings and outdoor areas where
'
Contractor's Yard activities are permitted may not be expanded or relocated without the prior
'
written approval of the City.
311SS.03
07/22/96 -5-
' CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A Jul 22,06 10:24 No.00:1 P.07/1:1
' 6. SIGNAGE.
A. Permitted Signage. The following signs are permitted:
' 1. Existing sign on the roof of the Garden Center.
' 2. Existing sign at the entrance to the Subject Property from Highway
101, or an updated pylon sign of the same height and square footage.
' 3. The previous V shaped sign located at the corner of Highway 101 and
Pioneer Trail may be reinstalled. This sign must be removed within 30
' days after the sale and closing of the sale of the first lot in the plat of
Great Plains Golf Estates.
' B. Directional /Safety Signage. On -site directional and safety signage is allowed
provided that it is approved in writing in advance by City Staff.
C. Probibited Signage. All signs are strictly prohibited, except as expressly
' allowed pursuant to this Stipulation, or pursuant to a sign permit approved by the City.
7. PARKING.
A. Minimum Number of Stalls. The areas identified as P on the Site Plan are
' the minimum required parking stalls, which shall not be devoted to any other use.
B. Handicapped Parking and Fire Lanes. The handicapped parking stalls and
' fire lanes as shown on the Site Plan must be designated and marked as required by State law
' and City ordinances.
' 8. FENCE.
A. Future Fence. Owner will obtain a fence permit from the City prior to
' installing the future fence as shown on the Site Plan.
' B. Installation Date. The future fence must be installed within thirty (30) days
after a certificate of occupancy is issued to any residential lot which abuts the Subject
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07/22/96 -6-
C:WIPBELL , i NUTSON , SCOTT & FUCHS , P . A Jul 22996 10:24 No . 00 P.08/14
Property. Owner shall be granted a reasonable extension of this time limit if necessary due ,
to weather or ground conditions.
9. PUBLIC ADDRESS SYSTEM. Owner shall discontinue all outdoor use of
the existing public address system, effective January 1, 1997.
14. ENTRY OF ORDER FOR JUDGMENT AND JUDGMENT. Upon
execution of this Stipulation, the parties agree to submit the Order, attached hereto as Exhibit
"C ", to the Court. The parties hereby stipulate to entry of said Order by ex -parte motion of
either party.
11. SEVERABILITY. If any portion, section, subsection, sentence, clause,
paragraph, or phrase of this Stipulation is for any reason held invalid, such decision shall not
affect the validity of the remaining portion of this Stipulation.
12. WAIVERS /AMENDMENTS. The action or inaction of the City shall not
constitute a waiver or amendment to the provisions of this Stipulation. To be binding,
amendments or waivers shall be in writing, signed by the parties and approved by written
resolution of the City Council. The City's failure to promptly take legal action to enforce
this Stipulation shall not be a waiver or release,
13. RECORDING, This Stipulation shall run with the land and may be recorded
against the title to the Subject Property.
14. REMEDIES. Each right, power or remedy herein conferred upon the City is
cumulative and in addition to every other right, power or remedy, express or implied, now
or hereafter arising, available to City, at or in equity, or under any other agreement, and
each and every right, power and remedy herein set forth or otherwise so existing may be
31155.03
07/22/96 -7-
I C Hh-1PBELL , KNUTS01d , SCOTT & FUCHS , P . R Jul 22 , 96 10:25 No . 003 P.09/14
exercised from time to time as often and in such order as may be deemed expedient by the
City and shall not be a waiver of the right to exercise at any time thereafter any other right,
power or remedy.
15. NOTICES. Required notices to the Owner shall be in writing, and shall be
either hand delivered to the Owner, its manager, or mailed to the Owner by registered mail
at the followin g address: 10,000 Great Plains Boulevard, Chaska, MN 55318. Notices to
the City shall be in writing and shall be either hand delivered to the City Manager, or mailed
to the City by registered mail in care of the City Manager at the following address:
1
Chanhassen City Hall, 690 Coulter Drive, Box 147, Chanhassen, MN 55317,
16. SUCCESSORS AND ASSIGNS. This Stipulation shall be binding upon the
I parties, their successors and assigns, and subsequent purchasers of the Subject Property.
17. JURISDICTION. The District Court shall reserve and retain jurisdiction to
enforce this Stipulation and issue additional orders as it deems just and proper.
18. EQUAL PROTECTION. The City will not enforce any provision of law
against Owner unless it is enforced on all A -2 users in accordance with the equal protection
doctrine.
19. PUBLIC INTEREST. This Stipulation shall be liberally construed to protect
the public's interest.
1
CITY OF CHANHASSEN
i
BY:
Donald J. Chmicl, Mayor
AND
Don Ashworth, City Manager /Clerk
1
31155.03
O7/22/9b "g"
1
CA11PBELL , 1:tdUTSON , SCOTT & FUCHS , P . A
Jul 22,96 10:26 No.003 P.10/14
STATE OF MINNESOTA }
( ss '
COUNTY OF CARVER )
The foregoing instrument was acknowledged before me this day of '
, 1996, by Donald J. Chmiel and by Don Ashworth, the Mayor and City
Manager /Clerk of the City of Chanhassen, a Minnesota municipal corporation, on behalf of
the corporation and pursuant to the authority granted by its City Council. '
31155.03
07/22/96
HALLA NURSERY, INC.
Notary Public '
CAMPBELL, KNUTSON, SCOTT ,
& FUCKS, P.A.
By: ,
Elliott B. Knetsch, #/168130
Attorneys for Plaintiff
317 Eagandale Office Center
1380 Corporate Center Curve
Eagan, MN 55121 '
(612) 452 -5000
OWNER '
BY: '
Its
AND '
Its
la
' CAMPBELL, KNUTSON, SCOTT & FUCHS, P.R Jul 22,96 10 :26 No.00.E P.11114
' STATE OF MINNESOTA )
ss.
' COUNTY OF )
The foregoing instrument was acknowledged before me this day of
1996, by and
the and
of Halla Nursery, Inc., a Minnesota corporation, on belialf of
' said corporation,
'
Notary Public
BY;
Mr. Robert J. Druno, #12415
'
Attorney for Defendant
107 Burnsville Professional Plaza
'
1601 East Highway 13
Burnsville, MN 55337
(612) 890 -9171
' 31155.03
07/22/96 -10-
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A Jul 22,96 10:27 No.003 P.12/14 ,
EXHIBIT "B" M PEED PRODUCTS '
PRODUCTS FOR THE IN SALES, CARE, MAINT ANTD
'
ORNAMENTATION OF PLANT'S, LAWNS, ANIMALS AND OTHER LANDSCAPE
FEAT'tJRES.'°' °'•
'
FERTILIZERS'
PATIO D '.2
0 PR UCTS
mEItBICIDES'
ORNAMENTAL ITB MS'-'
FUNGICIDES'
WATER PRODUCTS''
,
BIRD SUPPLIES'
BULK SOILS
BIRD FEEDERS"
BULK MULCHES
BIRD HOUSES"
BAGGED WZC1
,
BIRD BATHS '.x`
BAGGED SOIL'
WEED BARRIER FABRIC AND PINS"
SITE FURNITURE .'•'
POWER AND HAND TOOLS'
CONSULTATIONS 1,2,'
'
SEEDS'
GAUGES'
SPREADERS'
Tv
WATERING EQUIPMENT'
POLY'
INFORMATIONAL TEXT'
CLOTH AND NETTING'
PONDS 1.2.1,1
PLANT SUPPORTS "'.'
STAT&RY' z `
FOUNTAINS 1.2.4
,
FENCING "'
FISH AND WATER PLANTS
TRELLISES " - '
STRAW&fARSH HAY'
,
GAZEBOS
LABELS'
LIGHTING 1,3
BIRDS''
C [7. Y I\l b �7� + T1r1AS TREES AND ACCESSOR ES
LANDSCAPE DESIGNS 2,'
'
BULBS'
LA13OR "'
CLOTHING'
MAMMNAIvCE'''
PESTICIDES'
SNOW PLOWING 2"
CFj]NXS1.214
INSTALLATIONS "
POTTERY'-2-4
CONSTRUCTION�,3
ANDA'L REPELLENTS'
RECONSTRUCTION"'
'
SOD,
REMOVAL4,
WOOD TIES'
DELIVERY U.
TOOL ANA EQUPIMENT RENTAL''21'
BOULDERS'
BOULDERS
SOIL AMEN N,sENTS',v
TRH sxxv$, AND PLANT MATERZaI''�•� ��
EDOnvG1
'
INSiAANid.1DAMACxE EVALUATIONS
STRUCTURES 2
OUT aANSP.lPAItM C AS AND SUPPLIES" "
OUTDOOR I.IVINC3 ACCESSORIES :,z,s,4
PLAYGROUND EQUIPMENT
'
RBTATNING WALL PRODUCTS
DRAIN T ILE AND ACCESSORMS
NgSCELLANEOUS ITEMS, PLANTS OR NfATERIALS FOP, THE AESTHETIC,
PRACTICAL,
IMPROVEMENT, OR USE OR INDOOR AND OUTDOOR LIVING
SPACES t•z
'Indoor sales f'om the Garden Center ,
'Outdoor sales
indoor tales from the Offico '
4 Sa1ea 60M the Greenl,�„R��
CRI , KI IUTSON , SCOTT & FUCHS , P . A
EXHIBIT "C"
STATE OF MINNESOTA
COUNTY OF CARVER
City of Chanhassen,
Plaintiff,
vs.
Halla Nursery, Inc., a
Minnesota corporation,
Defendant.
Jul 22,96 10:27 No.003 P.13f14
DISTRICT COURT
FIRST JUDICIAL DISTRICT
CASE TYPE: 10 /Other Civil
Court File No. C8 -94 -851
ORDER FOR JUDGMENT
AND JUDGMENT
ORDER FOR JUDGMENT
Based upon the Stipulation for Entry of Judgment, and upon all the files, records and
proceedings herein, IT IS HEREBY ORDERED:
I. The City of Chanhassen, Halla Nursery, Inc. and the Subject Property are
each subject to and bound by the terms of the Stipulation for Entry of Judgment, which is
incorporated herein by reference.
2. Defendant Halla Nursery, Inc. is hereby permanently enjoined from using the
Subject Property in violation of the Stipulation for Entry of Judgment. Defendant's violation
of any obligation under the Stipulation will constitute inunediate and irreparable damage to
the Plaintiff not compensable in money damages and entitles the Plaintiff to preliminary and
30982.02
07/22/96
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A
Jul 22,96 10:28 No.003 P.14/14 '
1
permanent injunctive and equitable relief to cure the violation upon application to the District ,
Court.
3. Plaintiffs violation of any obligation under the Stipulation will constitute
immediate and irreparable damage to the Defendant not compensable in money damages and
entities the Defendant to preliminary and permanent injunctive and equitable relief to cure the '
violation upon application to the District Court.
4. Defendant Halla Nursery, Inc.'s Counterclaim is hereby dismissed in its '
entirety with prejudice.
5. The Court shall reserve and retain jurisdiction to enforce the Stipulation for
Entry of Judgment, and issue additional orders as it deems just and proper.
THERE BEING NO JUST CAUSE FOR DELAY, LET JUDGMENT BE ENTERED
ACCORDINGLY, FORTHWITH.
Dated: , 1996. '
BY TIDE COURT: ,
Judge of District. Court
JUDGMENT '
The above Order hereby constitutes the Judgment of this Court.
Dated: , 1996.
{Court Sear
By:
1
30982.02 ,
07/22/96 -2-