9. Revocation of CUP #88-11 for a Contractors Yard at 1700 Flying Cloud Dr. C ITYOF
CHANHASSEN
_ 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
1
(612) 937 -1900 • FAX (612) 937 -5739
Action by City Administrator
1 Endorsed_ D
Diodified_----
MEMORANDUM Rejecter
1 Date ,S -3 -R 3
TO: Don Ashworth, City Manager Date Submitted to Commission
1 FROM: Sharmin Al -Jaff, Planner I
Dote Submitted to Council
' DATE: April 22, 1993
SUBJ: Revocation of Conditional Use Permit, CUP #88 -11 for a Contractor's Yard on
' Property Located at 1700 Flying Cloud Drive - Jeff Carson for Harry Lindbery.
On September 12, 1988, the City Council approved a Conditional Use Permit (88 -11) for
1 contractor's yard activities on property located at 1700 Flying Cloud Drive (Attachment #2). Staff
took the position that the Conditional Use Permit had expired because substantial construction
had not taken place within one year of the date on which the Conditional Use Permit was granted
(Section 20 -236. Expiration - Attachment #4).
On June 8, 1992, staff noticed outdoor storage of seven trailer /containers and ten round concrete
1 pipes at the subject property. On June 11, June 24, and July 11, staff notified Mr. Harry
Lindbery, owner of the property, that the outdoor storage taking place on his property is not
permitted and requested that it be terminated. Mr. Lindbery did not comply. Staff referred the
1 matter to the City Attorney's Office. The City Attorney's Office filed a complaint against Mr.
Lindbery. The complaint outlined the fact that there was illegal storage taking place on the
property as well as the expiration of the Conditional Use Permit (Attachment #3). On January
13, 1993, the City Attorney sent a formal notification to Mr. Lindbery's attorney, outlining the
reasons behind the termination of the Conditional Use Permit (Attachment #6). Mr. Lindbery
contested the City Attorney's and staff's interpretation of the ordinance regarding the expiration
1 of the Conditional Use Permit and stated that a public hearing is required in order to revoke the
permit.
Section 20- 28(b)(1) of the Zoning Ordinance states that one of the duties of the Board of
Adjustments and Appeals is to hear and decide appeals where it is alleged that there is an error
1 in any order, requirement, decision or determination made by a city employee in the
administration of this chapter. The applicant appeared before the Board of Adjustments and
Appeals and City Council to appeal the determination of city staff. The Board of Adjustments
and Appeals had a vote of two to one. On that same evening, the City Council reviewed the
1 t4, PRINTED ON RECYCLED PAPER
1
Mr. Don Ashworth
April 22, 1993
1 Page 2
proposal. It was determined that the Conditional Use Permit for a contractors yard was still
valid, and staff was directed to bring back the application before the Planning Commission and
City Council to consider revoking it based upon the fact that the applicant did not fulfill the
conditions of approval that were approved with the application. These conditions were as
follows:
1. All outdoor storage areas must be completely screened by 100% opaque fencing, berming
P or landscaping. A proposed screening plan shall be submitted prior to issuance of a
building permit.
' 2. Hours of operation shall be from 7:00 a.m. to 6:00 p.m. Monday through Saturday. Work
on Sunday and holidays is not permitted.
3. Light sources shall be shielded.
4. No outside speaker systems are allowed.
5. Compliance with the conditions of MnDOT, including installation of a right turn lane and
a left turn lane if required by MnDOT.
' 6. Installation of bituminous driveways, parking areas and loading areas.
1 7. Compliance with the conditions of Resource Engineering as written in their memo dated
August 9, 1998.
8. Protection of the two septic system sites during construction.
9. Installation of a holding tank.
10. The building must be sprinldered.
' 11. Provision of one handicap parking space.
' 12. Contractor's yard activities only as defined in the zoning ordinance, are permitted. There
shall be no shipping or other non - contractor's yard activities.
' 13. The applicant shall obtain and comply with all conditions of the permits from the
Department of Natural Resources and the Watershed District permits.
14. All the existing buildings shall be moved off -site and disposed of properly.
Mr. Don Ashworth I
April 22, 1993
Page 3
1
15. The erosion control plan shall be revised to include check dams at 100 foot intervals in
all proposed drainage swales. 1
16. The plans shall be revised to include erosion control measures for the proposed
construction within the immediate area of Bluff Creek.
I
17. The pond out -fall shall be revised to include a submerged outlet detail in place of the
wooden skimmer.
1
18. Submission of a vehicle inventory list.
19. No heavy equipment or machinery shall be operating between 6:00 p.m. through 7:00 a.m. I
20. No shipping activities shall originate on site. 1
The applicant has not complied with any of these conditions with the exception of obtaining an
access permit from MNDOT. The applicant pointed out several facts in his letter (Attachment
I
#5). These facts are as follows:
1. The definition of contractor's yard activities does not require a building; that is Mr. I
Lindbery does not need to construct a building on this property to use the property
for a contractor's yard.
I
Finding: This statement is not entirely accurate. The contractor's yard was approved by the
city as a Conditional Use Permit. Part of the proposal was a building to store I
some of the equipment. This was never constructed.
2. Mr. Lindbery has used his property since receipt of the Conditional Use Permit as
I
a contractor's yard.
Finding: If the applicant used the property as a contractor's yard, then he did so without
complying with the conditions of approval of the conditional use permit which
was approved by the City Council on September 12, 1988.
3. Although your zoning code has now been amended to prohibit contractor's yards in I
A -2 , Mr. Lindbery's use would qualify as a legal non - conforming use of his land.
Findings: The contractors yard never received a Certificate of Occupancy nor was scheduled I
for inspection by staff to determine if the applicant had met all conditions of
approval of the Conditional Use Permit approved by the City Council on
I
September 12, 1988. In fact, it cannot be grandfathered -in because a contractor's
yard was not completed at that location. Also, staff visited the site on different
1
Mr. Don Ashworth
April 22, 1993
' Page 4
occasions as part of our conditional use permit review procedure and never
observed any type of activity taking place at the site.
4. Although all terms and conditions of the CUP have not literally been met,
' negotiations between Chanhassen staff and Mr. Lindbery over the years have, in
fact, amended the CUP alleviating the necessity for strict compliance with the
permit. (Example: the requirement that he remove all buildings from the property;
' conversations with staff concluded that moving caretakers into the house on the
property would be sensible for policing and safety protection both to Mr. Lindbery
and to the City.)
1 Finding: This is addressed in condition #14 of the Conditional Use Permit. What this
condition refers to is the fact that there were existing buildings that were to be
' removed but that did not mean eliminate the storage building for the contractors
yard. The applicant also states that staff had concluded that moving caretakers
into the house on the property would be sensible for policing and safety protection
' both to Mr. Lindbery and to the City. Staff is not aware of when or if this
conversation ever took place.
1 5. City staff is not suggesting violation of the CUP terms but rather has taken a
position that the CUP has expired, or in the alternative, the use of the CUP has been
discontinued.
' Finding: The applicant has not complied with the conditions of the Condition Use Permit.
6. A criminal complaint filed in the summer of 1992, regarding improper storage
charged Mr. Lindbery with four misdemeanor complaints, are pending in Carver
County District Court; Mr. Lindbery has since resolved the alleged problems. The
offending units themselves were a part of Mr. Lindbery's use of the property as a
contractor's yard.
1 Finding: Outdoor storage in a front yard is a prohibited use in the Agricultural Estate
District.
1 7. Mr. Lindbery has paid $1,164.33 for a building permit to the City of Chanhassen
(10/26/89); $34,752.00 for his building shell (3/15/89); $500.00 to MnDOT for their
' review, all obviously with the anticipation that the building would go up as planned.
(Note: The building permit was issued over one year after the effective date of the
Conditional Use Permit and yet staff now alleges a one year expiration violation.)
' Finding: The Building Permit was received on September 11, 1989, which is one day prior
to the deadline for submitting a building permit application. The permit was then
Mr. Don Ashworth ,
April 22, 1993
Page 5
1
reviewed and released on October 26, 1989. This permit was for the shell of the
storage building only. It was never completed. 1
8. City staff continued to deal with Mr. Lindbery and the Conditional Use Permit as
recent as October 22, 1990, over two year after issuance of the Conditional Use
Permit. (These events all took place over two years after issuance of the Conditional
Use Permit indicating both that Mr. Lindbery continued to use the property in
accordance with the terms of the Conditional Use Permit and that the one year
expiration has nothing to do with the construction of a building itself.)
Finding: A building inspection was requested by the applicant for October 22, 1990. Staff
met with the applicant on the site and requested he meet with Building and
Planning Departments to clarify the status of his permit.
9. Hearings to consider amendment of the code to eliminate contractor's yard from A -2
via Conditional Use Permit suggest (a) that existing contractor's yards would be
handled as legal, non - conforming uses and (b) that no landowner with a contractor's
yard was notified or present at the hearing.
Finding: Existing uses only can be grandfathered -in and this is not the case here. Staff did
publish the ordinance in the Villager on January 24, 1991, as required by
ordinance.
10. Mr. Lindbery has a legitimate complaint regarding the deficiency in the City's
procedural process to date: (a) the Conditional Use Permit itself says a hearing will
be held if violation is alleged; (b) Code Section 20.237 requires a public hearing to
consider revocation of a Conditional Use Permit.
Finding: The City Council directed staff to reschedule this Conditional Use Permit to
consider revoking it. The public hearing at the Planning Commission satisfies Mr.
Lindbery's due process concerns. '
11. Mr. Lindbery has met with other agencies as required by the City and has met all
requirements of said agencies. 1
Finding: Staff has no knowledge whether this statement is true or not.
PLANNING COMMISSION UPDATE
On April 21, 1993, the Planning Commission held a public hearing to consider revoking
1
Conditional Use Permit 88 -11. The applicant was questioned as to why the conditions of
approval of the Conditional Use Permit had not been met to date. The applicant stated that he
1 Mr. Don Ashworth
April 22, 1993
1 Page 6
had submitted plans to the Building Department for review but the city refused to issue the
I permit. Steve Kirchman, Building Official, was handling this permit application and conducted
inspections for the site. Enclosed is a memo from Steve Kirchman relating the events that took
place since Mr. Lindbery applied for his building permit (Attachment #1).
1 Chairman Brian Batzli requested tabling this item to allow the applicant some time to produce
a copy of what he had submitted to the city, however, the majority of the commission felt that
I the applicant had ample time to proceed with the permit and comply with the conditions of
approval, but he failed to do so. The Planning Commission recommended approval of revocation
of the Conditional Use Permit. The motion passed with a vote of two to one.
1 PLANNING COMMISSION RECOMMENDATION
1 The Planning Commission recommends the City Council revoke Conditional Use Permit 88 -11.
ATTACHMENTS
I 1. Memo from Steve Kirchman dated April 27, 1993.
2. Planning Commission minutes dated April 21, 1993.
I 3. Staff report dated February 18, 1993.
4. Conditional Use Permit (88 -11).
5. Letter from City Attorney dated October 29, 1992.
I 6. Zoning Ordinance, Section 20 -236.
7. Letter from applicant's attorney dated February 15, 1993.
I 8. Letter from City Attorney dated January 13, 1993.
9. Board of Adjustments and Appeals minutes dated February 22, 1993.
10. City Council minutes dated February 22, 1993.
1 11. Site plan approved September 12, 1988.
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CITYOF
�
}
6 90 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
(612) 937 -1900 • FAX (612) 937 -5739 1
MEMORANDUM
1
TO: Sharmin Al -Jaff, Planner I 1
FROM: Steve A. Kirchman, Building Official 4C1
DATE: 04/27/93 1
SUBJECT: CUP #88 -11 Revocation (Harry Lindbery)
The purpose of this memo is to document the Inspection
Division involvement with CUP #88 -11 and Harry Lindbery.
Facts set forth were gathered from the building file for
1700 Flying Cloud Drive, the address for an existing home, a
number of outbuildings and the proposed contractors yard
building. 1
I wrote a memo on 08/03/88 to Jo Ann Olsen stating the
proposed building must be sprinklered. These code
requirements were included in the staff reports and as
conditions of approval for the CUP.
Building permit application was made on 09/11/89
(attachment 1A), and a shell permit was issued on
10/26/89 (attachment 1B). The permit application, the
permit and the approved plans all noted that the permit
was for a shell only and that additional permits were
required. The approved plans (attachment 1C, cover
sheet only), one copy of which is returned to the
applicant, further stated that sprinkler, plumbing and
heating permits and plans were required.
There is a record of four inspections at the site,
1/07/89, 12/27/89, 01/03/90 and 10/22/90 (attachments
1D & 1E) .
Fire sprinkler plans were submitted to the fire 1
marshal, but no fire sprinkler application was ever
submitted. A memo from the fire marshal is included
(attachment 1F). Plumbing plans were submitted to the
Inspections Division, but were inadequate and never
approved. HVAC plans and application were never
received. A memo from the mechanical inspector is 1
t PRINTED ON RECYCLED PAPER 1
Sharmin Al -Jaff
04/27/93
Page 2
1
' included (attachment 1G). The septic system designer
requested his design be rescinded on 10/23/90. This
was done, and the approved plans were returned to him.
A search of phone logs and daily activity logs reveal
no further activity or communication with Mr. Lindbery,
his agents or subcontractors. Not all staff kept phone
1 logs.
I made several visits to the site to confirm that
building activity had not resumed (attachments 1H &
' 1J). Storage containers and concrete pipes were first
observed and reported at the site on 05/19/92, and
again on 07/08/92 (attachment K). Another visit was
' made to the site on 02/19/93 to take pictures
(attachment L)
These are the facts as can be determined from the building
file. References to alleged conversations with inspections
staff were made by Mr. Lindbery at the Board of Adjustments
and Appeals meeting and City Council meeting of 02/22/93 and
1 at the Planning Commission meeting of 04/21/93. I'm sure
conversations took place that weren't recorded, but all
inspections staff are certified, experienced professionals
and would not knowingly prohibit anyone from installing
systems or structures permitted by the code and the City
providing all requirements of both are met.
1
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• COMMERCIAL & INDUSTRI
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leie* ********* **** ******* ******************-******************14*************************************: • . -._
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THIS IS AN APPLICATION FOR A BUILDING PERMIT AND NOT TO BE MISUNDERSTOOD AS THE ACTUAL BUILDING PERMIT. - 1
THE UNDERSIGNED HEREBY AGREES TO DO ALL WORK IN ACCORDANCE .WITH THE ORDINANCES OF THE CITY OF .CHANHASSEN -
- - AND THE RULINGS OF THE BUILDING DEPARTMENT. _
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Dununiy anu £.0 y ',swoon-no
690 Coulter Drive — P. 0. Box 147
46ye
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Chanhassen, Minnesota 55317 Ste, PERM MU 612 — 937.1900
APPLICATION FOR BUILDING PERMIT CITY OF DATF 10 �►pQ
DRESS MX 1700 Flying Cloud rive CHANHASSEN EST. BUILDING VALUE $98,0 00.
Name Barry u ZONING DISTRICT
w 6901 Maloney Ave. RES. COM 8 IND. PUBLIC
r City Hopkins, Tel. N938-9570 NEW X EXISTING P.I.N
Name Banc: 1RtUed
O SUBDIVISION
1 Address
LOT BLOCK
t1 City Tel. No. 34 a
SECTION NORTH HALF SOUTH HALF
hereby acknowledge that 1 have read this application and state that the
(formation is correct and agree to comply with the .nhassen, Minnesota $ 630.50
finances and = State of Minnesota la�;- ulati /V • ing construction. Building .
40983
�fature of / , � Plan Check $
ermittee j X49.00
. CALL FO •/ INSPECTIONS LIST Surcharge SHELL PERM MIX S
I 0 BUILDING CARD S >�a
PHONE 937.1900 S.A.C. FINISH SPACE 75.00
Sewer Surcharge SEP $
I DO NOT WRITE IN THIS SPACE Park Dedication $
PERMIT ISSUED
Trail Dedication $
On lIB�y 7io Water Unit T
On the express condition that all work shall be done in accordance W + � �
with the ordinances and building codes of the City of Chanhassen Sewer Unit TNE
and the State of Minnesota. This Permit is void if work is not com- BEFORE Arcanctia
menced within 120 days or abandoned for 120 days. FERMIS ARE
Bui �n In Water Meter $
/ %8' g speption Division
f Public Safety Dedicat' n ; I q7 .--,5 $
BY ! -t ,... ' .. iln; t 1 ,
—7 ...-- Other Fee !/ J /0 i 1 $
- TOTAL FEE PAID ( u .33 )
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I' CITY OF CHANHASSEN, MINNESOTA CITY OF CHANHASSEN, MINNESOTA
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If no corrections are listed above, approval is hereby given/to proceed You will be in If no corrections are listed above, approval is hereby given to proceed You will be in
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937 -1900 937 -1900
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violation of the ordinance if you do not call for the proper inspections and make cor- violation of the ordinance if you do not call o the p'. rer ' spections and make cor-
rection as called for. p rection as called for. ( I
1 0/ 90 /) Ob k0 / Date 1I• Time A , I V • �I Spector
Date Time Inspector
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CI TYOF
CHANHASSEN
690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
1 (612) 937 -1900 • FAX (612) 937 -5739
MEMORANDUM
1 TO: Steve A. Kirchman, Building Official
FROM: Mark Littfin, Fire Marshal A,
DATE: April 28, 1993
1 SUBJ: Fire Sprinkler Plans /Storage Building - Harry Lindberry
In 1989, Mr. Lindberry submitted a rough preliminary set of fire sprinkler plans. The plans
showed only the piping. It did not show a water source, fire pump or water tank, which it
would need due to the unavailability of Chanhassen City water. During the early submittal
' stages, I explained the problems to Mr. Lindberry on at least three different phone
conversations. The plans also did not include hydraulic calculations, name of the
A firesprinkler designer, and was designed for an ordinary hazard, and it should have been
designed for an ordinary hazard group 3, which is for repair garages. Basically, it was a very
incomplete set of plans, and a permit was never applied for or issued.
1
1
1
1
1
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1 o t r PRINTED ON RECYCLED PAPER
1 Gi
C ITYOF
CHANHASSEN
690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 1
(612) 937-1900 • FAX (612) 937 -5739
1
MEMORANDUM
TO: Steve A. Kirchman, Building Official
6 n- 1
��
FROM: Carl Barke, Mechanical Inspector Cell
-
1
DATE: April 30, 1993
SUBJ: Harry Lindbery
ry
1700 Flying Cloud Drive
This memo will be addressing the comments of Harry Lindbery made at the Planning
Commission meeting held April 21, 1993, and some of the issues involved in the public
hearing.
Mr. Lindbery indicated that he had submitted HVAC (heating, ventilation, air conditioning) 1
and plumbing plans to the Inspection Division for review. I do not recall receiving any
HVAC plans and they do not exist in the property file. However, I had a conversation with
Mr. Lindbery regarding his desire to install a radiant heat system in the floor. It was
brought up at this conversation that a radiant heat system in itself would not meet the code
requirements for ventilation of this type occupancy. It was also brought to Mr. Lindbery's
attention that HVAC plans signed by a registered mechanical engineer would need to be
submitted to the City for review and approval before an HVAC permit would be issued.
No permits were denied on the basis of his intent to install radiant heat in the floor. 1
Mr. Lindbery started the installation of the plumbing system without approved plans or
permits. I believe this was discovered by the building inspectors during one of their
inspections. No stop work orders were posted, but the plumbers were informed that they
could not continue until plans were submitted and approved, and permits were issued.
Prairie Plumbing Company submitted a drawing to the City and applied for a plumbing 1
permit, but the permit was denied because the plans had not been submitted to the State
Department of Health for their approval, nor did the drawings bear the required signature
of a registered engineer or master plumber. To date, no approved plans have ben received
and there has been no further communications since the permit application date of
10/26/89.
1
• «► r PRINTED ON RECYCLED PAPER
1
1G
1 Steve A. Kirchman
April 30, 1993
i Page 2
Mr. Lindbery also discussed at the Planning Commission meeting the alleged problems with
' the flammable waste separator size and location. The minimum size permitted by code is
35 cubic feet which corresponds to approximately 265 gallons. The capacity requirement
is to allow petroleum products to accumulate and vapors to evaporate into the air through
I the vent system thus alleviating the potential for an explosion in the sewer system. As for
the location of the separator, I believe Mr. Lindbery was confused about it and the
requirement that it needed to empty into a holding tank. The flammable waste separator
I must be located inside the building, and the holding tank must be located on the exterior
of building.
I Flammable waste separators are not allowed to empty into a septic system because
petroleum products would cause failure of the system by killing the bacteria that treat the
effluent, thus the requirement for the holding tank. Mr. Lindbery indicated that an
I inspector required that he move the flammable waste separator from the interior of the
building to the exterior. There are no inspection reports in the file which would support his
statement. I believe his statement to be incorrect for two reasons:
I 1) If an inspection was performed, it would have been to halt any work in �' ro ess until
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the proper permits were obtained.
I 2) All knowledgeable inspectors & plumbers know a flammable waste separator is
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required to be installed on the interior of a building.
I To date, no lumbin permits or HVAC permits have been issued p g p p ee �s ued and work has not been
I allowed to proceed.
1
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Planning Commission Meeting
April 21, 1993 - Page 1
PUBLIC HEARING; I
CONSIDER REVOCATION OF A CONDITIONAL USE PERMIT FOR A CONTRACTOR'S YARD
FOR MR. HARRY LINDBERY LOCATED AT 1700 FLYING CLOUD DRIVE.
Public Present:
1
Name Address
Harry Lindbery 1700 Flying Cloud Drive
Jeff Carson Attorney for Mr. Lindbery
Sharmin Al -Jaff presented the staff report on this item. Chairman Batzli,
called the public hearing to order.
Jeff Carson: Members of the Planning Commission, my name is Jeff Carson.'
I represent Harry Lindbery, the landowner. At the previous hearing just
referenced, where there was an attempt to void or reach a determination
that the conditional use permit was voided, apparently enough issue was
raised about the use of the property by us over the years to redirect the
thinking and bring it back to this body. It's pretty clear, if you all
have a copy of the staff report which includes the Minutes from that
meeting and the discussion that took place, I think I used at that meetin'
the phrase pretext hearing. Meaning this hearing. It's pretty clear that
it wasn't designed to be a hearing to determine whether or not there was
something that could be worked out based on the staff's position but
merely a hearing to make a determination that the permit should be
revoked. That's their position. We explained at the last hearing that
the applicant had run into a roadblock in the process of constructing his
building. Questions were asked and answered about the timing of it all.
There appears to have been a long period of time transpired between the
issuance of the original permit and today and I guess I can agree that a
long period of time has elapsed. I think that a lot of it is accounted
for however and I would ask this body to remember or consider that the
city was dealing with this property for a period of time long after, for •
over a year after the original year that the conditional use permit
preports to require complete action. And I also explained that Mr.
Lindbery was physically unable to do anything for a year's period. So
there's big blocks of time that have elapsed and we don't deny that. The '
you also have to consider that there's only a relatively short period of
time after 3/4 of each year that you can actually construct. All that by
way of explanation, Mr. Lindbery wants very much to proceed with this
project. We raise issues about the rezoning and the grandfathering natur'
of it and the fact that he has actually operated a contractor's yard in
one form or another since the inception of this permit. He has not
however built his building and if you look at the long list of items
required of that permit, we claim that some of them were waived de facto
by the city staff during this process. And the reality is that most of
the requirements will come due after the building is placed on the
property. He's willing to conform to whatever requirements you make but I
he can't do those things prior to putting the building on. Mr. Lindbery,
total up the purchase of the property and the items that he's purchased i
anticipation of operating his yard there, including a $34,000.00 building
that is presently stored elsewhere. $8,000.00 worth of heating coils,
which was a tremendously big issue unfortunately with the Building
•
Planning Commission Meeting
April 21, 1993 - Page 2
Department here. He has in excess of $250,000.00 into this property. This
' project. If you accept the rezoning and the fact that the conditional use
permit is revoked or if you do that process, it's his estimate that the
value of the property is approximately 25% that figure. He simply can't
' afford to have that happen. Not many people could. And so he asks you to
consider all these things recognizing that his story isn't perfect and I
can't fill in every gap to satisfy every concern that's been raised by
' staff. But he is willing to work with the city in any way that he can. If
you want to put a timeframe on the process, he's willing to do that. He's
willing to put conditions on. He understands now that when somebody says
time is of the essence, that's what they mean. We can't change the
history of this but we would ask you to consider going forward with a
working relationship. Contrary to the indication I guess of the
recommendation of staff. That's really about all I intend to say or all I
have planned to say. It's a pretty serious problem economically to him if
this permit gets revoked and he's left with an agricultural piece of
property in that location. It essentially becomes useless. I'd attempt
to answer any questions if I can, or if I can't I'm sure Mr. Lindbery
himself can. That you might have.
Batzli: What I think we will probably do is close the public hearing,
' assuming there's no other public comment and we will probably have
questions for you once we start trying to look through this, if that's
acceptable.
Jeff Carson: Do you want me to sit down?
Batzli: Yeah. This is a public hearing. Is there any other public
' comment? I'd like the record to show there's no one else in the crowd
except the applicant, his attorney, city staff, City Attorney, and the
Planning Commission. Is there a motion to close the public hearing?
Conrad moved, Harberts seconded to close the public hearing. All voted in
favor and the motion carried. The public hearing was closed.
Batzli: Diane.
Harberts: I'll pass right now.
Batzli: You'll pass?
Harberts: I will.
Batzli: Okay. Ladd. Any thoughts? Any comments?
' Conrad: You didn't ask staff for their position. Are you doing this
differently?
Batzli: Well, we got the staff report up front.
Conrad: I guess we did. I guess I'd ask the applicant one question. You
' know contractors yards are not one of our favorite things in Chanhassen.
It's our attempt to control a function on some property that probably has
some history in terms of doing a business on that yard, but a while back
1
Planning Commission Meeting
April 21, 1993 - Page 3
there was something being done on your parcel that was not permitted whicl
gives an indication to me of character and intent. How you would operate
it had you operated a real contractors yard. And I guess I'm real
curious. So that tells me I'm not sure you could operate a contractors I
yard per our permit. So maybe you can tell me why that was not, why you
did something that wasn't permitted and why you decided to continue doing
that.
I
Jeff Carson: One of us will try to answer either one of your questions.
Harry Lindbery: We have ship containers. They're 8 foot wide, 8 foot I
high and 20 feet long that we rent out to plumbers and electricians and
different contractors for storing their supplies and their tools on jobs.
Well we did store some right by some trees. It was in the fall of the
year and there was leaves on the trees and they weren't visible. Then th'
leaves come off and we got a letter from the city and I asked the city,
should I move them down behind the creek? There was no possible way. Th
only thing they told me is get them off the property. There's no if's or
and's or anything. And well, I disagreed with that and then I contacted
Mr. Carson and he talked with them and then later I sold I think 7 of them
or something for about half their value just to try to satisfy whichever I
man was complaining and there's just one there now that we have. It's
similar to like a yard shed you have in your backyard and they've got a
garden tractor and a lawnmower and it isn't really unsightly.
1
Conrad: But again, the contractors yard we kind of try to understand
what's going to take place there and we put it on a piece of paper so we I
know, so you know and we know what's going to occur and we don't want it
escalated. Period. Period. The end of sentence. End of it. We don't
want it escalated. Now did you not anticipate that use? Were those to be
stored behind an opaque fence? I don't understand why you're doing
something that you said you weren't going to do. Whether it was screened
or whether it was, why did you do that? I guess that's still an open
question with me.
1
Jeff Carson: I may be able to respond in part. I can't tell you what he
was thinking but I think the use of those units is, in his mind, part of
the contractors yard. I'd point to the first requirement in the permit I
itself. That something must be completely screened by berming or
landscaping and that's why he, we looked on his property and if you look
at the lay of the land, when he put these, and he did do this. Put these'
units down behind the trees, they were effectively screened.
Conrad: Until the leaves fell off.
Jeff Carson: No, no. No. This was after that and after it was called t
his attention. He took them down and around by the creek and literally
they were out of sight. I suggested that that part of the requirement in'
the permit or of the permit was indeed satisfied. By that time
unfortunately criminal charges had already been issued and they're still
pending as a matter of fact. But I believe that he actually met the term'
He was in a place up higher, closer to the road when they were drawn to
the city's attention. When he says to you that he asked them about moving
il them down and around and they said get them off, I think that was in erro
' Planning Commission Meeting
April 21, 1993 - Page 4
' actually on the city's part. That isn't required. It is part of a
contractors operation. He was willing to move them and so that's what
happened.
Conrad: I don't know that we've ever let another contractors yard do
that. Typically we have them screened with a fence. Typically we don't
tell somebody to take it down the gully so it's a little bit different.
Jeff Carson: Have'you seen the lay of this land? You'd have to drive it
to really, because it sounds kind of crazy but if you go down and around,
' it literally is, there's a woods there and kind of indentation and it is
out of sight. Be glad to have you see it there.
Conrad: So it was always his intent to bring these containers onto the
site?
Jeff Carson: I don't know. I don't know that that ultimately. I don't
' know in 1988 if that was even contemplated.
Harry Lindbery: There will be a need as long as we have needs because
' every contractor will tell you that he has a problem with supplies and
tools on a job that he needs to lock up.
Batzli: Paul do we have, we were not provided with the original Minutes
of the Planning Commission during the application process for the
conditional use. Is it of record as to what the applicant said was going
to take place on the site?
' Krauss: That was the approved plan.
Batzli: That's the plan but was there a discussion over what actual type
of activities would take place on the contractors yard?
Al -Jaff: The applicant was supposed to submit a survey showing how many
' trucks will be on the site. As well as a screening plan, landscaping
plan. Actually the contractors yard, conditional use permit is really not
valid unless all of those conditions have been met. I mean they never
' actually started operating the place. The City never issued a permit for
a contractors yard. We have issued a footings permit for the building but
that's about it. And I don't know if that answers your question.
' Batzli: Okay. Well I may be asking it fairly innocually here. Let me
try one more time. When Mr. Lindbery came in for the conditional use
permit originally to the Planning Commission and probably the Council,
' there was a discussion over what type of activity would take place on, in
the contractors yard. It's been stated in the staff report in several
places that putting these containers and the cement pipes was illegal. I'm
' wondering, I don't remember what this contractors yard was supposed to be
for.
Al -Jaff: There wasn't supposed to be any outdoor storage. They were
' supposed to have a building.
Batzli: So you don't remember or you didn't look at.
Planning Commission Meeting
April 21, 1993 - Page 5
Al -Jaff: I didn't see anything that allows storage outdoors. '
Batzli: The first condition says that all outdoor storage will be
screened which seems to me to say there's going to be some outdoor storag'
isn't it?
Elliott Knetsch: Mr. Chair?
Batzli: Yeah.
Elliott Knetsch: Maybe I can take a shot at that. I haven't seen those I
Minutes of the original approval either. What I'd like to say is that
this permit does permit any contractor yard activities as they were
defined in the Code at that time. And the Code allowed several things.
It specifically set those forth. So I believe the permit, I don't know i
Mr. Lindbery stated what exact activities he was going to use but the Cit
did approve all uses under the definition of contractors yard. The reason
that a land /sea containers and the pipe is deemed to be a violation is no,
that those don't constitute contractor yard activities. The reason
they're deemed to be a violation is that he was not supposed to start any
contractor activity until he went through this 20 item checklist and I
completed all those things. It was only with these conditions in place
that the City felt that it would be okay for him to initiate operation of
the contractor yard.
Batzli: So the illegal nature of the storage of the containers and the
pipe was the fact that he had not completed the 20 conditions and so he
had not yet really received his validated conditional use permit from the'
City?
Elliott Knetsch: That's correct. And also that they weren't screened
properly. You know assuming somehow it did have permission to start, the
would have violated condition number 1 for not being properly screened.
think the applicant's point on that issue is, it does permit landscaping
as screening so that area back on the property down by the creek where all
the trees are and not visible from public roads, that may, we may have
approved that along with all these other conditions as a landscape
screening plan but he never came in and submitted that as his plan. '
Harberts: And as I understand that the Zoning Code has now been changed?
Elliott Knetsch: Yes it has.
Harberts: And it doesn't allow for this?
Al -Jaff: No.
Harberts: What was the consideration given to when the zoning code was
changed as to that particular parcel? I mean did we change it without.
Farmakes: Was the zoning changed or is it just a conditional use permit
for that application?
1
Planning Commission Meeting
' April 21, 1993 - Page 6
' Al -Jaff: Our ordinance does not allow contractors yards in the city
anymore. In any of the zones.
Farmakes: No, I mean even currently. It's still agricultural with a
conditional use permit, is it not?
Al -Jaff: Correct. Well, if this permit is valud, it's a non - conforming
use.
Batzli: Is that your question? Whether this would be a non - conforming
use?
Jeff Carson: I think I can answer that.
' Batzli: I need to clarify this.
Farmakes: How is the property currently zoned?
' 1-Jaff: It's an agricultural estate district.
Farmakes: Alright. And what we're arguing about here is a conditional
use for that zone right?
Al -Jaff: Correct.
1 Farmakes: Okay. That's just how I want to qualify. I thought that was
the question you were asking.
Harberts: Yeah.
Farmakes: Okay.
' Batzli: I'm sorry, did you want to?
' Jeff Carson: Well I think there might be a misunderstanding. At the time
of the rezoning, now you cannot seek a contractors yard in this zone. So
I sensed that was what you were asking. We can no longer ask for a
' contractors yard in that zone following rezoning.
Farmakes: As I understand it, the zoning remains the same but the
conditional use no longer allows.
' Jeff Carson: That's it. That's the change. And at the time that they
did that, and we included in our papers some of the comments from
the Planning and Zoning, the concern was what about people who are already
in and the assurances were, they're grandfathered.
Harberts: Do you have some documentation?
Jeff Carson: Of that?
Harberts: Yeah.
1
1
Planning Commission Meeting
April 21, 1993 - Page 7 1
Jeff Carson: Well, the Planning Commission Minutes which are excerpts II
from that which are part of our original submission, should be part of
your. If all of that was included in your packet, they should be there.
Batzli: It's Exhibit 11 or something. About halfway through. 1
Jeff Carson: It was clear that the Planning Commissioners at the time
were concerned about that because nobody showed up at the rezoning hearinll
or the hearing to, yeah the rezoning hearing. And the idea of notice, till
concept that if we publish it, it's enough but no contractors were
specifically notified. I beleive the understanding was that because
they're non - conforming and therefore legal non - conforming uses, we're not
affecting them.
Batzli: I don't know whether revocation or us coming to the conclusion
that we should work with your client is going to hinge on whether they're
currently allowed or not so much as whether the applicant has gone forward
in a timely manner and worked towards complying with the conditional use II
permit that was granted 4 years ago, or 5 years ago. You know I don't
know. I guess personally, and I don't mean to speak for the other
commissioners. I guess my decision on whether to move to revoke or to
work with them will matter a hill of beans on whether it's changed in the,
meantime.
Jeff Carson: I see. ,
Batzli: I don't see that as my particular issue in this matter, and you
know the other commissioners can disagree with me but in any event. Did
you have other comments Ladd?
Conrad: No.
Batzli: Okay. Matt.
Ledvina: Well this thing has really taken on a life of it's own. There',
been a lot of different discussion as to why the permit isn't valid. If
the permit is valid, we should revoke the permit. There's a lot of
different twists to know. If I understand our City Attorney, he says the
permit didn't exist because the conditions weren't met. Is that right?
Elliott Knetsch: Well, I guess no. There is a permit.
Ledvina: Okay, we know that.
Elliott Knetsch: I mean staff's original position was there is no permit
You don't have to revoke it because it doesn't exist. The Board of
Adjustments and Appeals agreed with that but the Council didn't. The
Council said, well let's not talk about this lapse in 1 year, no
construction and all that. He's got the permit. Let's look at whether i�
should be revoked for non - compliance with it's terms. So there is a vali
permit.
Ledvina: Okay, so that's where we're at? ,
1
f'
1 Planning Commission Meeting
April 21, 1993 - Page 8
I Elliott Knetsch: Right. I think my statement that you were referring to
is simply that he didn't have permission to start operating until you
completed these things and he did in fact start operating by storing the
I containers out there.
Ledvina: Okay. Just to get staff's response to a couple of things that
were said. The applicants or the CP's holders representative indicated
I
that certain requirements were waived by staff. Is that true? Was there
any aspects?
1 Al -Jaff: We're not aware of any.
Ledvina: Okay. Nothing was documented? Do you have anything that was
I documented as far as waiving conditions of the conditional use permit?
Jeff Carson: You mean in writing?
1 Ledvina: Right.
Jeff Carson: No. Verbal conversations between Mr. Lindbery and staff.
1 Ledvina: And as to the value of the property being reduced to 25% of it's
current use. Is there any comment on that or are you able to make any
1 response? I don't know that it's necessarily germane but.
Krauss: We haven't tried to come up with a value.
I Ledvina: Okay. I read through the City Council Minutes and one of the
directions that they were I think trying to take this thing was to allow
Mr. Lindbery to gain compliance with the conditions of the Conditional Use
I Permit. And it doesn't appear that we've done that. First of all I'd
like to ask the applicant, has any progress been made in gaining
compliance with the conditions of the permit?
I Harry Lindbery: Your Building Inspector told me that he wouldn't give me
a permit to put the heating in the floor and pour the concrete to erect
the building.
1 Ledvina: Well, okay aside from the building. The other conditions that
are in here.
I Jeff Carson: Everything has, well there's been, we did in some ways
respond to those conditions in the original submission but since the
criminal charges were brought last summer, essentially everything has
I awaited that outcome. Nothing has gone forward. Shortly after that we
got into the issue of void permit versus active permit and so we've been
literally, almost for a year now, been under that inquiry. So no.
1 Ledvina: Okay, so nothing has happened at the site.
I Jeff Carson: No.
•
Ledvina: Since the City Council date or anything like that?
II
Planning Commission Meeting
I April 21, 1993 - Page 9
Jeff Carson: No. No. 1
Ledvina: Okay. Has the staff inspected the site recently?
Al -Jaff: As of a week ago a Building Official was out there and there wal
one container on the site.
Ledvina: Okay. So essentially from that inspection you would conclude 1
that the conditions of the permit are not being met? Okay. This is
really a sticky wicket. It's taken a number of different directions here.
No further questions.
111
Batzli: Okay, thank you. Joe.
Scott: After going through this, it started getting involved in, it look'
like dialogues between two attorneys so if you wouldn't mind simplifying
because it seems like we have a chicken and egg. It seems like a permit,
and stop me at any time.
1
Elliott Knetsch: Sure.
Scott: I mean have two words out of my mouth and may get stopped here. 1
Basically, it initially was determined that there was no permit because
substantial activities were not begun within a certain window of time.
I
The yard was operated as such without "a permit" but the City Council
determined that there was a permit?
Elliott Knetsch: Yes. That's the short answer. I mean there's, he says
he was operating the yard by having those containers on there. That was
really the only, you know and I'm sure Mr. Carson will correct me if I'm
wrong. I think that's the only activity out there that would even
I
remotely constitute use as a contractors yard.
Scott: Well is the, and this might be a basic civics question but does
the City Council have the legal ability to make that determination? To I
say that in fact is a permit?
Elliott Knetsch: Yes.
I
Scott: Okay. So it doesn't matter what has happened up to that point in
time, there is a permit legally?
I
Elliott Knetsch: Yes.
Scott: Okay. And now the question is, is based upon the operation.
Okay. And that seems to be pretty clear. I don't think that there's a
dispute as to what's been going on on the property.
Elliott Knetsch: I agree with that. 1
Scott: Alright. No further comments.
Harberts: Sounded like questions to me. I
f'
Planning Commission Meeting
April 21, 1993 - Page 10
' Farmakes: On the history of the property, a couple questions for staff.
Prior to this in 1988, this was ag property and the zone was ag?
Al -Jaff: Yes.
Farmakes: That hadn't changed. Was the access road existing or was that
an improvement?
1 1-3a'ff: Existing.
1 Farmakes: Do you agree with the assessment of the applicant to the
valuation of the improvements on the property?
Krauss: We really don't have a position on that Commissioner Farmakes.
' The building's not up. We hear that it's stored elsewhere. We don't know
if the building was purchased and what the value of that was? And we
haven't tried to do any kind of an appraisal as to what the value was or
1 is or will be.
Farmakes: Okay. I'm looking at the layout of, this is from 1988. Layout
of the schematic here with the building pad and so on. What, if any of
these improvements have taken place? Any?
Al -Jaff: No, none.
' Farmakes: None. So this was purchased as ag land at that time? There
wasn't an existing contractors yard here?
' Krauss: Well, there is a footing was put in. If you go out there you can
see the concrete and it's been covered up. Our Building Official...has
told me that that thing is now valueless because it's basically sat in the
' ground and heaved over the last 4 or 5 years.
Farmakes: Okay. If we're talking about the loss of this permit,
' conditional use permit and how that would effect the applicant's
investment in that property, I guess I would like to know on the issue of
hardship whether or not those numbers are correct. From what I'm hearing
t on one side, there really hasn't been much of an investment versus what
the property was originally purchased for. As ag property. If the
applicant had to sell it again, it would seem to me he'd be selling it at
the same use that he bought prior to any improvements. This building
1 apparently is stored elsewhere. It's somewhere else?
Jeff Carson: Correct.
1 Farmakes: Is there anything about that building that makes it only
useable for this property?
1 Jeff Carson: No. No, not at all but you would not be selling the
property for the same price because the only reason it was purchased was
so that, for a contractors yard.
1 Farmakes: Okay, but that's his conditional use permit. But the zoning of
II
Planning Commission Meeting
April 21, 1993 - Page 11
I
the property if he sold it to someone else would still remain as ag,
correct?
II
Al -Jaff: Correct.
Farmakes: That would not be transferred. That use would not be II
transferred with that sale.
Jeff Carson: Well yes. A conditional use permit, if it's still on the I
property would transfer.
Farmakes: If it was found to be valid.
1
Jeff Carson: Sure.
Farmakes: So what he's hanging on here is that this particular piece of II
property is more valuable because he has a conditional use permit?
Jeff Carson: Absolutely. And it's significantly more valuable because. I
Farmakes: Well is this the only improvement that he has that, or would
you, the other things that you listed as his investment in the property,
do you agree that there's been minimal improvement in the property? Or d
you disagree with that?
Jeff Carson: I would say, you mean in improvements to the property? 1
Farmakes: Correct.
I
Jeff Carson: I guess I would agree they're minimal. The footings are in.
He has improved an access road down to the place of construction and has
crossed the creek and put culverts under the creek to get to the property'
So there's been some road improvement. The footings. He's purchased
other things that are not on site for the project. Including $8,000.00.
Farmakes: Are these properties that cannot be used elsewhere? 1
Jeff Carson: No.
Farmakes: Or are these just for that site? Okay, so then it was site I
specific to this particular piece of property?
Jeff Carson: Correct. I
Farmakes: You know it seems to be the month for old commitments going
back several years and I guess my position on that is, it seems to me tha'
what we're arguing here is the value of that conditional use permit if he
had to resale the property. Correct me if I'm wrong.
Satzli: Well, I don't even see that as an issue in my mind. I
Farmakes: I was talking about a hardship issue. If something is.
I
II
f'
Planning Commission Meeting
I April 21, 1993 - Page 12
I Batzli: If we would decide that he had not fulfilled any of the
conditions and so it was appropriate to revoke, I don't even know if it's
appropriate for us to consider his financial hardship as some sort of
variance to our decision.
il Farmakes: He didn't purchase the property with that conditional use in
mind. In other words, he didn't pay a premium for that property because.
1 Harry Lindbery: Yes I did.
Farmakes: You did?
I Jeff Carson: He would not have purchased it had he not thought he could
have, had he not had the right to apply for an receive a contractors yard
II by conditional use permit.
Farmakes: Okay, but the person that he purchased the property from, did
I that person charge you additional dollars than they would otherwise for
that property use? For that conditional use?
Jeff Carson: Well, it was worth more because you could obtain a
II contractors yard by conditional use permit on it.
Farmakes: At that time, couldn't you obtain a conditional use on any
I piece of ag property?
Jeff Carson: Sure. Well I don't know. I can't say sure. I think so.
I But it had a significantly higher value because of that. In other words,
we don't have an appraisal. The person with the best opinion about, I
think, about the value, if you are willing to consider the loss of the
economic situation, is the owner. And he believes that it's worth about
I 25% of the original purchase price without the ability to use it as a
contractors yard. Pure farmland in other words.
I Krauss: There's a lot of focus on the value...of this thing and frankly
it didn't occur to us to provide you any information on it because we saw
it didn't matter.
1 Farmakes: I can understand that argument.
Krauss: The only place any kind of a hardship is spoken to in the
I ordinance has to do with variances and not whether or not a CUP is still
valid. In that case it says financial hardship is not to be considered.
So it really wasn't something that we threw into the mix. It's just
whether or not it complied. What's there today. How's the property been
managed. And we made our recommendation based on that.
Farmakes: Okay. No more questions.
I Batzli: Okay. There's an inspection report, which is attached. Is one
of the items by Mr. Lindbery's attorney I believe. And the corrections
I indicated that a floorplan, plumbing plan, HVAC plans, sprinkler plan, had
to be complied with and to set up a meeting with Planning and Building
Departments back in 1990. Was it at this time that it's your recollection
II
11
Planning Commission Meeting
April 21, 1993 - Page 13 '
that the Building Inspector told you that you couldn't put up the buildin'
because of this infloor heating system?
Harry Lindbery: Well I told him that I wanted to put radiant heat in the
floor and then put drainlines for floor drains and he and that way where II
the pilasters where the beams carry, we would rerod it into the concrete
floor. That's the reason the engineer on the building recommended that
way and your staff, they just said put unit heaters in it. You don't nee'
floor heating, radiant heating. And then they said definitely they
wouldn't give me a permit for radiant heat. And then on the floor drains,
the state requires to have a flammable waste in the building in case
there's an accident and you spill something. It goes into this large tan'
before it goes out into a drainfield. Well, we put it in. Then I had
Prairie Plumbing going to connect the pipes. We asked them for that and
he says, oh no. You can't have that in the building. You have to put ill'
outside. So I took and sent a backhoe out there. We removed it from
inside the building. We put it on the outside. We got a concrete saw to
saw through the solid concrete wall and then after we installed it on the
outside we says well, can we connect the pipes now? He says, no. Now
you've got to go to,the State and get the okay from them. We went down to
the State. The State man he looked at it and he said., whoever that
Building Inspector, he isn't familiar with our winters. He says you have
to put that inside the building. So I put it inside the building, back
again where I had it to start with. And then they wouldn't let me hook
the pipes up, put my rerod in to pour the concrete. '
Jeff Carson: What period of time was this Harry?
Harry Lindbery: I think this was, I think it was in '91. '
Jeff Carson: I think that was the original...
Batzli: Yeah. So did you ever submit a written plan for your HVAC or I
plumbing or sprinkler or?
Harry Lindbery: Oh yes. Sure. You people have it. You have the '
sprinkling system. The whole thing.
Batzli: And we had, as far as this stuff that goes in the floor, the
radiant heat from the floor that was, as part of your plan and was that
ever officially denied or is there some?
Harry Lindbery: Well, your man was out there to look at our flammable I
waste. Are you familiar with the flammable waste?
Batzli: No.
1
Harry Lindbery: Well any garage or anything where you'd have either
gasoline or deisel fuel. We don't have any gasoline vehicles. It's just'
deisels. But say if one had bumped the other and he had ruptured a tank
and it spill on the floor, it would go into this flammable waste and
there's a vent out in the air. That way in this tank will hold 500
gallons and any vehicle wouldn't hold much over about 100 -150 so it's
11
1
Planning Commission Meeting
April 21. 1993 - Page 14
sufficiently large enough. And the State requires you to have it inside
the building.
Batzli: Okay. But other than that, I mean this is all, maybe I didn't
read that part. I didn't even see that in your attorney's stuff, or
maybe I glossed over it. The radiant heat issue, when you put it on the
plan, normally you get something back from the city that's stamped. It
says, you know it's approved or approved except you've got to do this,
this, this and this. And the City never gave something like that back to
you?
' Harry Lindbery: No. The man was just on the job and he says, radiant
heat is no good. Put unit heaters in the end of the buildings. And if
you were working a on cold concrete floor, if you had nice warm water
running through there, it's much more comfortable than if you've got a
unit heater.
Batzli: But again I guess, you don't have any of this in writing. It's
all your recollection that this is kind of how.
Harry Lindbery: We gave him a copy of the diagram. How it would go back
' and forth and everything and the spacing. And Roberts - Hamilton is the
distributor for a Weirsbo Company. That's the one that made the tubing
and their engineer laid it all out.
•
' Batzli: Between when you were working with the, going back and forth
between the city and our staff allegedly, I'il throw it in there for
whatever it's worth. Did anything happen to the building during that
' timeframe?
Harry Lindbery: I have it in Hopkins waiting so I can put the heat in the
' floor, pour the concrete and erect it.
Batzli: But what did you do for the next 2 years after apparently our, or
' supposedly our Building Inspector said either you want radiant heat or you
can't put it in.
Harry Lindbery: I rented a building in Hopkins.
1 Batzli: Okay, but you didn't do anything to this site?
Harry Lindbery: Well we put the access road in. We put the culvert so we
can. that's how we can cross the creek to get the cement trucks into put
the foundation in and we done a little bit of grading down there.
Batzli: But didn't you do that before the Inspector was out telling
you...
Harry Lindbery: Oh yeah, yeah. That was done before but that was it.
Batzli: So between October of 1990 when this inspection report is dated
and the criminal complaint was filed last summer, did anything go on on
this site? I mean that was nearly 2 years time. Did you do anything on
the site during that time period?
1
Planning Commission Meeting
April 21, 1993 - Page 15
Harry Lindbery: Well, we cleaned up behind. When we had a little spare
time we cleaned up behind because that farmer left it in a terrible mess II
and we hauled out several truckloads of trash.
Batzli: Did you work with the City at all during that time period? 1
Harry Lindbery: The man just said we couldn't put it up and well, I
wasn't too much of a fighter. I just kind of let time ride some. And he
tells me I should have come down and pounded on the desk and say, why and '
go to somebody else that didn't mind radiant heat. I know when we were
here before your Mayor said that he had it in his house and he liked it.
Jeff Carson: There was a year's period when he was actually physically '
unable to do anything. One of those years is accounted for in that way...
He crushed his leg.
Harry Lindbery: Yeah, I did have an accident and I was laid up for about
12 -13 months.
Batzli: So you personally couldn't do anything.
Harry Lindbery: No. But if they would have gave us the okay I would haul
had a crew out there putting it up.
Batzli: But you had a crew that could have been working while you were ,
laid up potentially I guess.
Harry Lindbery: Oh yeah. No, we've got boom trucks and so forth. 11 Batzli: Okay. Paul.
Krauss: This is all quite interesting but it doesn't jive with any of th'
things that we've been hearing from the Inspection Department. They did
have a meeting with them in 1990. The Inspections Department as a matter
of routine issues an inspection report anytime they go out on a site and
tells people what they have to change. I mean it's just routine for thes,
guys. They're all licensed inspectors. We only have one of those reports
around here and it's dated October 22, 1990 and it says you've got to
submit plans. '
Batzli: Well he's just told us that he submitted plans and we have them.
You're telling me we have nothing in his file? '
Al -Jaff: No. I went through the file.
Harry Lindbery: Prairie Plumbing is the one that.
Krauss: We're not going to argue the point. We haven't seen them and
we've asked the Building Inspectors about them and they don't have them.
And there is nothing currently, there is nothing current that's happened. •
This was in 1990.
Batzli: Okay. As far as revocation. If we were to go with revocation, II
what is our standard that we're looking at and what should we base it on?
1
f'
Planning Commission Meeting
' April 21, 1993 - Page 16
Elliott Knetsch: It would be based on whether or not he's in violation of
the terms of the permit. And you have those 20 items in the permit.
Ledvina: I look at the ordinance and it says, any condition of the
1 permit.
Batzli: Shall be, shall constitute sufficient cause for revocation of the
conditional use permit by the City Council following a public hearing.
And I assume we're acting as the public hearing?
Elliott Knetsch: The City Council will also hold a public hearing.
' Batzli: Okay. Well, I guess it's very difficult to envision how this has
dragged on and I appreciate the fact that he didn't want to fight it.
Obviously he's fighting it now. Without some evidence, you know and what
this could be is obviously if he can go to the heating and plumbing people
that prepared the plans for him and demonstrate that they sent them to the
' city, to show that the city's file is in error, then I guess I'd be, I'd
look at some of this stuff. But what I hear is a lot of remembrances and
we have absolutely no documentation to substantiate a lot of this and so
I feel uncomfortable doing anything personally other than saying he has
not complied with the conditions and 1 don't believe that the financial
hardship is appropriate to look at to determine compliance with the
conditional use permit because for heavens sake, everytime we looked at
' revoking one, it would always be a financial hardship and in many
instances it would be a much bigger hardship because they may have
invested buildings, pavements. They would have done all, complied with 19
of these things. And I don't see compliance with, if you squint, more
than a couple. So I would like to, if the applicant, if he has some
evidence, if he can go to the plumbing and heating people. If he can get
the person at the State to say yeah, he called me. I said, Kirchman
didn't know what he was talking about. You know, but we don't have any of
those things and I guess what I would do is I'd put the burden back on the
applicant and his attorney to come up with some evidence that shows that
' the City's files are in error.
Jeff Carson: Mr. Chairman?
Batzli: Yes.
Jeff Carson: I do appreciate what you're saying and I would appreciate an
' opportunity to do just that. As I stand here right now I don't have what
you're seeking and if you would hold this open perhaps, I don't mean today
or tomorrow, but to another hearing or continue it to another, continue
the public hearing to another date, I think it's only fair that if we can
produce that information, that you would receive it and frankly it's quite
reasonable of you to demand it. Mr. Lindbery tells me that he ought to be
able to recreate this and I think that's a reasonable request.
1 Batzli: That would at least be helpful to me to see that some of these
things occurred and that perhaps it was more than just his diligence, non-
diligence. That the city somehow was giving him some either misinformation
or that some of these things occurred. That would be helpful to my
decision. I don't know if it would be helpful to the other.
Planning Commission Meeting
April 21, 1993 - Page 17 '
Harry Lindbery: We did have two copies of that. The plumber had one and
we gave your staff one of how the lines would run and how the drains and
the heat went.
Batzli: Having gone through the permit process here at the city
Personally, I know what you get back.
Harry Lindbery: We gave them to the plumber. '
Batzli: I understand that but then you should be able to go to the
plumber and you should be able to have some of this documentation. Right
now I, you tell me this and I hear someone else telling me something
different and they go and they look in the file and there's nothing there
and so I weigh this. I'd like to entertain a motion now and if other
commissioners feel that this would be helpful in making a decision, I
think we should table it. Allow him to gather up some additional
evidence. If it wouldn't be helpful, then maybe you should move with the
staff recommendation. Allow him to gather the information before the Cit
Council meeting where apparently there will be a further public hearing.
Farmakes: I have just a question in regards to that. Would that negate,
let's say he came forward with heating plans for the floor. Would that
then negate the other non- compliances with the conditional use permit?
Batzli: I don't know. I don't know. I hope he comes with more than just
a letter from the plumbing people saying, you know a letter addressed to
the city saying here's a plan. But I'm saying that if there is additional
evidence that he wants to submit, he should do it. You know because righ
now we don't have a lot. It's just kind of yes he did, no he didn't and
there's nothing in our file which would show that he did and I'm
suggesting, if he really did it and you had these other people involved in
the process, for crying out loud you should have some letters or
correspondence or plans or copies or something and I don't see any of
that. So I guess I'm just saying, I'm trying to give them one more shot
because my feeling right now is that, if this isn't going to make a
difference, or if you just want to let him gather it up and present it to
the Council, then we should probably move it along. But if presenting
some of that evidence may have an impact on the way you vote tonight,
then I think we should table it, so.
Scott: I'm looking at a letter dated October 2, 1992 from Campbell -
Knutson with a carbon copy to Jeffrey A. Carson and it basically spells II
out that there is a problem with the permit and I mean that's a heck of all
lot of time and in order to answer the claims made by the City of
Chanhassen, I mean that's, in my mind I think that was ample time to come'
up with the plumbing plans and any other documentation that the City of
Chanhassen either had never received or got it and lost. I personally
have enough information on this particular item to go along with the
staff's report, recommendation of revocation and then have this item
presented to the City Council. Now inbetween those two dates if any
documentation can be brought forward on behalf of your client, I would
suggest that it be brought forward.
f'
Planning Commission Meeting
' April 21, 1993 - Page 18
Jeff Carson: I appreciate that Mr. Scott. My druthers would be, if we
can produce the documentation that is being referenced, to bring it back
here simply because of the function of the public hearing process followed
by a recommendation followed by action at the City Council level. All too
often I'm afraid if the recommendation is, from this body up to the City
Council for revocation, the argument could be made we lose the opportunity
to present new information. Or they won't be interested in it and
' sometimes, if they are interested in it, they'll shoot it back to Planning
and Zoning if they're not sure. So it would be my suggestion, and I
apologize for my voice. It's not normal whatever it is I've got.
' Batzli: You mean tonight or always?
Jeff Carson: Good point. I opened that door. My druthers would be to
' bring whatever information we can bring back to this body. If you would
permit it. And I suggest that there's a slight inconvenience but given
the length of time that we've dealt with, or have not dealt with the
' issue, a 30 day delay or approximately, whenever you'd have your next
public hearing, I think we're procedurally and logistically, on behalf of
the applicant we're better off coming back to this body. If it doesn't
persuade this body, we're in more trouble at the Council to be sure. But
I guess I'd like my first opportunity here.
Batzli: Paul, is there a disadvantage from the standpoint of, is there
' something being done on the site that needs immediate attention?
Basically they've said nothing has happened out there since last summer so
from our perspective, does 30 days hurt us?
Krauss: From that perspective, 30 days does not hurt us. There's nothing
emminent or pressing that we're aware of that needs to be stopped. On the
other hand. this is the third public hearing this thing has had. There
' are nuances among nuances among nuances here. It's going to be your
choice. I guess I fail to see what bearing something that may or may not
have happened 3 years ago has on what's been happening out there in the
' last few years. I don't know if there's an implication that these
documents were delivered to the Building Inspectors and they ditched them
intentionally? Or by accident. In any case, you can always pick up the
:hone and see where they are. If there was a true need to more forward, I
' assume the issue would have been pressed. There's no knowledge of it
being pressed. It would be a month delay in all likelihood. If you want
to hold it over, Sharmin will be out of town at the next Planning
' Commission meeting. Possibly Elliott and we could have Steve Kirchman
here and if that's satisfactory, maybe they can handle it. I leave it up
to you but it's not uncommon for the Planning Commission to recommend
' something to the City Council along with some assumptions that additional
materials be presented if they in fact exist.
Batzli: Okay. Ladd, did you have?
Conrad: Yeah, and I'm going to ask the applicant. I think if there's one
item, I'd be real tempted to play this one out but I play this scenario
' through things that weren't done yet the site being used. That bothers
me. It's not that sprinklers weren't put in to a building that wasn't
constructed. That doesn't bother me at all. But what bothers me is where
Planning Commission Meeting
April 21. 1993 - Page 19
we asked for screening and the site was used and there was no screening.
It bothers me that we asked for a bituminous driveway. We didn't get onell
but the site was used. It bothers me that we asked for erosion control
Plan and we didn't get one. It bothers me that we asked for a vehicle
list and we didn't get one. They're all things that we should have befor
the site is used. So I'm not sure that what we're saying, if you brought
it back and said here are the plans, I'm not sure that in itself is going
to outweigh all these other things that go hand in hand with use of the II
Property. It's pretty, in my mind it's pretty solid evidence that it
wasn't used according to how it was designed to be used. And therefore,
again we, the contractors yard, we put specific parameters on that becausll
it's an exemption. And in this case I don't think many things were
followed properly and my druthers would be to revoke it immediately and if
it was still permitted. You know I would really want to take a look at
what's used. What the plans were for this property. I would never, base
on the information that I have right now, I don't know what's going on
here. And that kind of bothers me. I would never allow a use to occur
without understanding more than we do right now. So I could never allow
this permit to go through, period. Because I don't know enough. Whether
it be documentation that we've been given. For whatever reason, I'd be
real uncomfortable. So again Mr. Chairman, right now I think we could '
follow a process and let the applicant go back and present some more
information to us. Yet the list that I just read, those things were not
done so what you'd be bringing back would only be a small part of what I
think is a bigger picture and it's a bigger picture of not following what'
was stated was going to happen. And that's what's really important in
contractors yards. It really is. You've got to do what we say in those
things because that's what we're trying to put those things under control'
And it's out of control.
Jeff Carson: I understand your concerns. I don't have a great
disagreement with much of what you said. I think that the applicant did
not understand it correctly. I think he was using the yard. Nobody told
him that he couldn't. Possibly nobody knew what he was doing and nobody
corrected him. There's a lot of misinformation on the part of the
applicant. Misunderstanding on the part of the applicant. I submit that
most of the items that are not checked off yet on the permit can and will
be done. He has said, we have said that the installation of the building'
comes first or before most of these things. And we discussed with the
Council at the last meeting timing and performance and all of those
things. It's very clear that Mr. Lindbery understands the concerns cf th
City at this moment. I submit that he didn't fully understand it and
there's no sense in trying to prove or disprove that. I think it's just
what happened. I also think that the City laxed a little bit until they
started looking directly at these storage containers. Otherwise we might'
not know. there might not be any activity yet one way or the other and so
there's a little bit of blame on both sides I suspect. If you're willing
to permit him to conduct the yard, strict and specific...there's no
question how that is to work now. But I don't disagree with much of what'
you're saying.
Ledvina: I'd like to make a motion. '
Batzli: Okay.
1
Planning Commission Meeting
April 21, 1993 - Page 20
Ledvina: I move that the Planning Commission recommend revocation of
' Conditional Use Permit #88 -11 based on non - compliance of the conditions,
and I don't know if I should go through these but I'll just briefly
mention a condition 1, 6, 7, 15, 16, and 18.
Jeff Carson: Would you list those again please.
' Ledvina: 1, 6, 7, 15, 16 and 18.
Jeff Carson: Thank you.
' Batzli: Is there a second?
Scott: Second.
Batzli: Is there any discussion?
' Jeff Carson: Can I have a question?
Scott: Can I ask a question?
Batzli: Yes you may.
Scott: When will Sharmin or when this will come up at the City Council?
' Al -Jaff: It would be 2 weeks, it would be the end of this month. End of
next month, I'm sorry.
Jeff Carson: March 10th.
Scott: May?
' Krauss: March 10th. Ah May.
' Scott: May 10th. Okay.
Batzli: Mr. Carson, did you have a question?
' Jeff Carson: Well I understand the motion. I'm wondering if there is
still an opportunity to present information?
' Batzli: There will be, I understand a public hearing for this at City
Council at which time you would be allowed to present additional
information.
Jeff Carson: Alright, thank you.
Conrad: They're very open about any information that they haven't
received.
Scott: And I think that's the reason why I support the revocation in that
' it's something finite and then the City Council will be making the final
aecision but that gives you a couple of weeks to come up with any
necessary documentation that perhaps you should have been working on in
II
Planning Commission Meeting
April 21, 1993 - Page 21
October of '92. But be that as it may, a couple more weeks. '
Jeff Carson: Understood. All I would ask is that whatever gets forwarded
to the City Council, that there be some acknowledgement of that fact.
Scott: All they're going to get from us is that we voted perhaps on
revocation and it's up to them to make a decision. It can be a completely
new thing but.
Batzli: I would like to, I don't know whether we would need to formalize
it but I think what our understanding is that at least we're forwarding I
this recommendation of revocation to the City Council with the
understanding that the applicant will be allowed to present any additional
evidence.
Ledvina: Right.
Scott: And that's true with any recommendation we make.
1
Jeff Carson: That's what I'm asking. I just want, I don't want the City
Council to look at me like I'm talking Greek when I say, we have some
aaditional information that was discussed at the Planning and Zoning.
Scott: The current Council has already, all the current Council members 1
have already seen this action once before so they're familiar with it.
Jeff Carson: Yeah, but it was in a difference context then though.
Batzli: Well I think the record clearly shows that all of our
understanding is that you would be allowed to present and they would get a
verbatim transcript.
Jeff Carson: I appreciate that.
Al -Jaff: Would we be able to review this before the meeting? ,
Krauss: Well we need to have these materials submitted to us by April
28th if we're going to review them and get them into that packet.
1
Batzli: April 28th?
Scott: That's a week.
1
Jeff Carson: That's why I suggested that we come back to this body. I
mean that's maybe possible, maybe it isn't. I don't know. '
Batzli: Can this be put on the Council meeting after the 10th?
Krauss: Sure. Second meeting in May. That would be possible. '
Batzli: That would at least give the applicant a little bit more time.
Al -Jaff: 24th of May.
1
Planning Commission Meeting
April 21, 1993 - Page 22
Jeff Carson: Is that a Wednesday?
' Al -Jaff : Monday.
Jeff Carson: Fourth Monday?
Al -Jaff: The fourth Monday of the month.
' Krauss: For that we need the material submitted to us by no later than
May 14th.
Jeff Carson: Alright.
Batzli: I guess I personally would like to see it come back here but it
sounds like other people want to see it moved along. So is there any
other discussion?
harberts: I'll just throw a comment in while you're thinking about it
Ladd.
Conrad: Please. Fill in the gap.
' Harberts: My earlier reasons for passing basically it's, I find it of
interest that there's no middle ground. In reading the Minutes from the
' Council it seems that's what their desire is. I don't know all of the
information. I don't feel I know all the information. I don't know if I
want to know all the information. I guess I just find it surprising that
there's not a middle ground here and there's probably reasons why you
can't find a middle ground. I don't know. So I guess if there's any
opportunity for working things out.
' Batzli: A middle ground might be something on the order of comply with
conditions 1, 5, 6, 14, 15, 18 by May 28th. And you know get a set of
plans In here that shows exactly where the heating, whatever so our people
' can look at it because they say they've never seen one. And do these
things by a given date and if you don't do that, then we'll revoke it.
And if you do it and you move forward on it and you do what you said you
were going to do 5 years ago within a very quick timeframe, I mean that's
the middle ground it seems to me.
Harberts: But are we creating some expectations on the part of the
' applicant though that may not be right?
Conrad: Boy, Mr. Chairman I would be real uncomfortable if the City
Council passed, approved of this permit without us finding out more what's
taking place and what's expected to take place. I still don't know what
the applicant has in mind on this parcel. So before when I was humming,
that's kind of the idea I would feel, whatever they do. If they revoke
it. then I guess it puts an end temporarily unless it goes to Court but if
they have a notion to find a middle ground, we're not there. We don't
have a contractors yard permit in front of me that I would feel real
comfortable with know other, we've got a design but I tell you, in recent
years, in recent years we find out what's taking place, why it's taking
place.
II
Planning Commission Meeting
April 21, 1993 - Page 23
Jeff Carson: And when. 1
Conrad: We don't have any idea what's, I don't have any idea.
Jeff Carson: That's why I would prefer it to come back to you. If you
were to say to this applicant, you bring all your bells and all your
whistles and all your plans and everything back to this body in 30 days,
and I mean everything, then you'd have something to look at.
Conrad: And I'm going to say, I'd rather have City Council tell me to do
that. If they say, let's take a look at it, we will. And I'll just be II
real frank. and I think I was in the very beginning. When somebody
doesn't live up to something, I have a real tough time going along with a
permitting process and in my mind right now, the applicant has maybe some
reason for not performing but in general when you use something and you d�
something outside of what was really originally intended, I take that as a
personal affront to the city of the Chanhassen residents and I have a
tough time being liberal and forgiving because the permit was the permit.'
Right now the applicant would really have to persuade me that he would be
a good neighbor and he hasn't at this point in time. And that's what we
were looking for from contractors yards. We're looking for, they're an
exception and we want that exception to fit in so that it doesn't bother II
the neighbors. Where it's an industrial use in a different area and we
want that to fit in and so far nothing has persuaded me that the applican
has tried to make it fit in. End of speech. But my point was, I would,
if the City Council has any thoughts of maintaining this permit, we reall
need a better understanding of what's going on in this parcel.
_edvina: Well they can send it back to us with what they want.
Conrad: That's why I made the point 3 times... '
rarmakes: Nobody's disagreed with you so far.
Batzli: Okay. Is there any other discussion? ,
Ledvina moved, Scott seconded that the Planning Commission recommend
revocation of Conditional Use Permit #88 -11 based on non - compliance of till
conditions, and specifically conditions 1, 6, 7, 15, 16, and 18. All
voted in favor except Batzli who opposed and the motion carried with a
vote of 5 to 1.
Batzli: My negative vote is not necessarily that I disagree with the
recommendation to revoke but rather that I would rather give the applican
an opportunity to bring it back here and present additional evidence
before taking it to City Council. The motion carries 5 to 1 there and it
will be on the City Council meeting for the 24th. Thank you very much for
coming in. '
Jeff Carson: Thank you.
CAMPBELL, KNUTSON SCOTT & FUCHS, P.A.
1 Attorneys at Law
Thoana, J Campbell (612) 452-5000
I Roger N Knutson Fax (612) 452-5550
Thomas M Scott
Gary G Fuchs
James R. Walston
Elliott B. Knetsch
Michael A. Brohack
Renae D. Steiner January 13, 1993
1
i II Attorney Jeff Carson
CARSON & CLELLAND COPV
Brookdale Corporate Center
Suite 305
II 6300 Shinglecreek Parkway
Minneapolis, MN 55430
I Re: Your Client: Harry Lindbery
Chanhassen Conditional Use Permit 88 -11
Dear Mr. Carson:
I We represent the City of Chanhassen. We have been
instructed to notify Mr. Lindbery that the City Planning Director
I Paul Krauss has made a determination regarding the above
referenced conditional use permit.
II The determination is as follows:
1. CUP 88 -11 is void. City Code Section 20 -236 provides as
follows:
I "If substantial construction has not taken place
within one (1) year of the date on which the
conditional use permit was granted, the permit is
void except that, on application, the Council,
. after receiving recommendation from the Planning
I Commission, may extend the permit for such
additional period as it deems appropriate."
. Mr. Lindbery installed concrete footings in 1989. Since
1 that date, no further construction has taken place. Mr. Lindberg
has not made an application for an extension. Therefore, it is
the City's determination that CUP 88 -11 is void.
I II 2 . In the alternative, the conditional use was discontinued
for six (6) months so the permit is void. City Code Section
{
I 20 -236 states as follows:
RECEIVED
"If the conditional use is discontinued for six (6)
months, the conditional use permit shall become voidjAN151993
II '4 V AI ii SEIV
Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121
• i
Attorney Jeff Carson ,
January 13, 1993
Page 2
• This section shall apply to conditional use permits
issued prior to February 19, 1987, but the six (6)
month period shall not be deemed to commence until
February 19, 1987."
Mr. Lindbery has not conducted any contractor's yard
activities on the subject property at any time, other than
1
illegal storage of containers and concrete pipes. Therefore, the
conditional use permit is void. City Code Section 20 -236 does
apply to any permit issued after the effective date of that
section, which was December 15, 1986. The reference to February IL
19, 1987 allows a grace period for permits issued prior to
February 19, 1987. It does not have the effect of limiting
section 20 -236 to permits issued prior to February 19, 1987.
3. The time to extend the permit has expired. City Code
Section 20 -236 allows a person to file an application to extend a
conditional use permit. Mr. Lindbery's permit was issued
September 12, 1988. Mr. Lindbery had until September 11, 1989 to
file for an extension. Mr. Lindbery did not file an extension
within the time specified by the ordinance. Therefore, the City
Council has no power to grant an extension at this time.
If your client is aggrieved by this determination, he may '
file an appeal with the Board of Adjustments and Appeals pursuant
to City Code Section 20- 28(b)(1) (copy enclosed).
Your client also has the option of meeting with City staff
prior to the hearing with the Board of Adjustments and Appeals.
You may contact Sharmin Al -Jaff or Paul Krauss directly at
(612) 937 -1900 to arrange the meeting. You previously indicated
to me that you wanted an opportunity to review the City's file on
this matter. I do not object to this request provided I am given
1 notice of when you will review the file.
Please call if you have any questions or comments.
CAMPBELL, KNUTSON, SCOTT
& FUCH '.A.
By: ....�� /i. j
Elliott B. Knj
EBK:mlw
Enclosure
cc: Don Ashworth
Paul Krauss
Sharmin Al -Jaff
II CITY OF CHANHASSEN '^
CARVE. —JD HENNEPIN COUNTIES, MIIN _..,OTA
II CONDITIONAL USE PERMIT
1. Permit. Subject to the terms and conditions set
II forth herein, the City of Chanhassen hereby grants a conditional
use permit for: Contractor's yard activities
II 2. Property. The permit is for the following described
I property in the City of Chanhassen, Carver County, Minnesota:
That part of the East Half of the Southeast Quarter of Section
34, Township 116 North, Range 23 West of the 5th Principal
I Meridian which lies northerly of the center line of U. S. Highway
No. 212 and southerly of the southerly line of Chicago North
Western Railway Company.
II Subject to an easement for Highway No. 212 over and across the
southerly 50.00 feet thereof.
I 3. Conditions. The permit is issued subject to the
following conditions: See attached Exhibit A.
II 4 . Termination of Permit. The City may revoke the
I permit following a public hearing under any of the following
circumstances: material change of condition of the neighborhood
II where the use is located; violation of the terms of the permit.
5. Criminal Penalty. Violation of the terms of this
I conditional use permit is a criminal misdemeanor.
I ,,l_ 7 Dated: September 12, 1988
t CITY % .ANHASSEN Z____
...
1 t"- Ma
1
By:
Its Clerk
STATE OF MINNESOTA)
ss
II COUNTY OF CARVER )
The f regoing instrument was acknowledged before me this
I I 'day of , 198i, by Thomas L. Hamilton,
Mayor, and D n shworth, City Manager of the City of Chanhassen,
a Minnesota municipal corporation, on behalf of the corporation.
II c
„• • "- 'J � C; ; ' ' -':TA T etary P l iC
"! _ 'n :_
II *I My crr. cae 13.91 /
EXHIBIT A 1
1. All outdoor storage areas must be completely screened by 100%
opaque fencing, berming or landscaping. A proposed screening
plan shall be submitted prior to issuance of a building permit.
2. Hours of operation shall be from 7:00 a.m. to 6:00 p.m. Monday
through Saturday. Work on Sundays and holidays is not permitted. II
3. Light sources shall be shielded.
4. No outside speaker systems are allowed.
5. Compliance with the conditions of MnDOT including installation of
a right turn lane and a left turn lane if required by MnDOT.
6. Installation of bituminous driveways, parking areas and loading
areas.
7. Compliance with the conditions of Resource Engineering as written
in their memo dated August 9, 1988. 1
8. Protection of the two septic system sites during construction.
9. Installation of a holding tank. 1
10. The building must be sprinklered.
11. Provision of one handicap parking space.
12. Contractor's yard activities only as defined in the zoning ordi-
nance, are permitted. There shall be no shipping or other non -
contractor's yard activities.
13. The applicant shall obtain and comply with all conditions of the
permits from the Department of Natural Resources and the Watershed
District permits.
14. All the existing buildings shall be trucked off -site and disposed
of properly.
15. The erosion control plan shall be revised to include check dams at II
100 -foot intervals in all proposed drainage swales.
16. The plans shall be revised to include erosion control measures for II
the proposed construction within the immediate area of Bluff
Creek.
17. The pond outfall shall be revised to include a submerged outlet
detail in place of the wooden skimmer.
18. Submission of a vehicle inventory list. 1
19. No heavy equipment or machinery shall be operating between 6:00
p.m. through 7:00 a.m.
20. No shipping activities shall originate on site.
3 1
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attorney at
Th„m.r,J C' un� (612) - 1i2-50
R■_cr N Knur,,,n Fix (6I2) }i_'•i5
Th,nn,n \1 Scott
Gat Fulh.i •
Jamws R Walston
1 Elliott T. Knench
Michael A Rrul icl.
Renae D Steiner
October 29, 1992
1
1 Mr. Scott Harr
Chanhassen City Hall
690 Coulter Drive
1 P.O. Box 147
Chanhassen, MN 55317 (:(:) D
1 Re: Harry Lindberry
Dear Scott:
Enclosed please find a formal complaint against Harry
Lindberry. Please take the complaint to Carver County District
Court and sign it in the presence of a judge. After it is signed
1 by the Court, please file it with the Clerk of Court Criminal
Division.
CAMPBELL, KNUTSON, SCOTT
& FUCHS, P.A.
1 By: 414.1t-
,�
Elliott B. �• tsch
1 EBK:mlw
cc: Sharmin Al -Jaff (w /enc. and 10/2/92 letter to Lindberry)
Enclosure
1
1
1 RECEIVED
1 OCT 3 0 1992
CITY Or t;hr,IVr/ SEl�
1
Suite 317 • E,ivanJale Office Center • 138C Corporate Center Cur\ e • Ewan, \1\ 551'1
t
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attorneys at Law 1
Thomas) Campbell (612) 452 -5000
Roger N Knutson Fax (612) 452-5550
Thomas M. Scott
Gary G. Fuchs
James R. Walston
Michael l . Brohi October 2, 1992
Michael A. Brohack
Renae D. Steiner D
Mr. Harry Lindbery ,
6901 Maloney Avenue
Minnetonka, MN 55343
Re: City of Chanhassen Conditional Use Permit 88 -11
Dear Mr. Lindbery: 1
•
We represent the City ofChanhassen. We have been instructed
by the City Planning Department to notify you that the Conditional
Use Permit referenced above has expired because substantial
construction has not taken place within one year of the date on
which the Conditional Use Permit was granted.
You are hereby notified that the outdoor storage taking place
on your property located at 1700 Flying Cloud Drive is not
permitted under the City's Zoning Ordinance. The seven land /sea
containers and ten round concrete pipes must be removed within ten
days of the date of this letter.
Enclosed is a copy of Chanhassen City Code Article 4, 1
Conditional Uses.
You are hereby notified that violation of tie Chanhassen 1
Zoning Ordinance constitutes a criminal misdemeanor. Each day the
violation continues to exist constitutes a separate offense. A
criminal misdemeanor is punishable by ninety days in jail and a
$700.00 fine.
Very truly yours,
CAMPBELL, KNUTSON, SCOTT
& FUCHS, P.A.
By: A ..../. _� Item
Elliott B. etsch
EBK:mlw
Enclosure
cc: Attorney Jeffrey A. Carson
1
Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121
1
•
f STATE OF MINNESOTA DISTRICT COURT
COUNTY OF CARVER CRIMINAL DIVISION
FILE NO.
STATE OF MINNESOTA
(City of Chanhassen)
I Plaintiff, COMPLAINT - SUMMONS
vs. FOR MISDEMEANOR OR
PETTY MISDEMEANOR
I HARRY LINDBERRY
Defendant, DOB:
6901 Maloney Avenue
mi Minnetonka, MN 55343
COMPLAINT (::(:)
•
I Scott Harr being duly sworn makes complaint to th above -
named Court and says that he/she believes this information and other persons
from whom it is obtained to be reliable and that there is probable cause to
believe that the above -named Defendant committed the offense described
I below. The complainant states that the following facts establish probable
cause:
Your complainant is Scott Harr, Public Safety Director for the
City of Chanhassen. In that capacity I have reviewed City
records, files and inspection reports and believe the following
facts to be true.
The defendant, HARRY LINDBERY, is the owner of certain real
property located at 1700 Flying Cloud Drive in the City of
Chanhassen, County of Carver, State of Minnesota (Subject
Property), legally described as follows:
That part of the East Half of the Southeast Quarter of
' Section 34, Township 116 North, Range 23 West of the 5th
Principal Meridian which lies northerly of the center line
of U.S. Highway No. 212 and southerly of the southerly line
' of Chicago North Western Railway Company.
(continued)
THEREFORE, Complainant requests that said Defendant, subject to bail or
I conditions of release where applicable,
(1) be arrested or that other lawful steps be taken to obtain
Defendant's appearance in court; or
I (2) be detained, if already in custody, pending further proceedings;
and that said Defendant otherwise be dealt with according to law.
1 Charges: Illegal outdoor Complainant
storage (4 counts) Scott Harr
Being duly authorized to prosecute
' the offense charge, I hereby approve
this plai
' Ordinance(s) 20 -909
Elliott B. Kn ch, #168130
Prosecuting Attorney, City of
Chanhassen
I SEE REVERSE SIDE FOR COURT DATE 1380 Corporate Center Curve, #317
Eagan, MN 55121
(612) 452 -5000
II
CITY OF CHANHASSEN V. HARRY LINDBERRY
PAGE 2
1
On or about July 8, 1992, the Subject Property was inspected by a
City building official. The inspector observed seven sea /land
containers stored in the open on the Subject Property. The
inspector also observed approximately ten round concrete pipes
stored openly on the Subject Property.
On July 14, 1992, the Subject Property was inspected by a person
from the City Planning Department. The City Planner observed the
seven sea /land containers and approximately ten round concrete
pipes stored openly on the Subject Property.
On October 28, 1992, the Subject Property was inspected by a 1
person form the City Planning Department. The City Planner
observed the seven sea /land containers and approximately ten
round concrete pipes stored openly on the Subject Property.
Chanhassen City Code Section 20 -909 - Outdoor Storage, prohibits
outdoor storage in the manner that it is being conducted on the
Subject Property.
OFFENSES
COUNT I - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section
20 -909 - 0 - 90 days and /or $700
That on or about July 8, 1992, in the City of Chanhassen, County
of Carver, State of Minnesota, the defendant, HARRY LINDBERY,
then and there being, did wrongfully and unlawfully permit
illegal outdoor storage on the Subject Property.
COUNT II - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section
20 -909 - 0 - 90 days and /or $700
That on or about July 14, 1992, in the City of Chanhassen, County
of Carver, State of Minnesota, the defendant, HARRY LINDBERY,
then and there being, did wrongfully and unlawfully permit
illegal outdoor storage on the Subject Property.
COUNT III - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code
Section 20 -909 - 0 - 90 days and /or $700
That on or about October 28, 1992, in the City of Chanhassen,
County of Carver, State of Minnesota, the defendant, HARRY
LINDBERY, then and there being, did wrongfully and unlawfully
permit illegal outdoor storage on the Subject Property.
1
1
I CITY OF CHANHASSEN V. HARRY LINDBERRY
PAGE 3
1
COUNT IV - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section
II 20 -909 - 0 - 90 days and /or $700
That on or about July 15, 1992, and each day thereafter, in the
I City of Chanhassen, County of Carver, State of Minnesota, the
defendant, HARRY LINDBERY, then and there being, did wrongfully
and unlawfully permit illegal outdoor storage on the Subject
Property.
1
1
1
1
1
. 1
.
1 •
1
1
1
1
1
1
1
§ 20 -233 CHANHASSEN CITY CODE
(bI In determining conditions, special considerations shall be given to protecting immedi-
ately adjacent properties from objectionable views, noise, traffic and other negative character-
istics associated with such uses.
I
(Ord. No. 80, Art. III, § 2(3 -2-4), 12- 15 -86)
Sec. 20 -234. Denial for noncompliance. 1
If the council denies a conditional use permit, it shall state findings as to the ways in
which the proposed use does not comply with the standards required by this chapter. I
(Ord. No. 80, Art. III, § 2(3 -2 -5), 12-15-86)
Sec. 20 -235. Permits not personal. 1
A conditional use permit shall be issued for a particular use and not for a particular
person.
1 (Ord. No. 80, Art. III, § 2(3 -2 -6), 12-15-86)
.. Sec. 20.236. Expiration.
If substantial construction has not taken place within one (1) year of the date on which 1
the conditional use permit was granted, the permit is void except that, on application, the
council, after receiving recommendation from the planning commission, may extend the II permit for such additional period as it deems appropriate. If the conditional use is discon-
tinued for six (6) months, the conditional use permit shall become void. This section shall
apply to conditional use permits issued prior to February 19, 1987, but the six -month period
I
shall not be deemed to commence until February 19, 1987.
(Ord No. 80, Art. III, § 2(3 -2 -8), 12- 15 -86)
Sec. 20-237. Revocation and inspection. 1
(a) Failure to comply with any condition set forth in a conditional use permit shall be a
misdemeanor and shall also constitute sufficient cause for the revocation of the conditional use ,
permit by the city council following a public hearing. The property owner shall be notified in
advance of the city council's review of the permit.
(b) Inspections will be conducted at least annually to determine compliance with the 1
terms of a conditional use permit.
(Ord. No. 80, Art. III, § 2(3 -2 -7), 12- 15-86; Ord. No. 106, § 1, 8- 14 -89)
I
Secs. 20- 238 -20 -250. Reserved.
DIVISION 3. STANDARDS FOR AGRICULTURAL AND RESIDENTIAL DISTRICTS 1
Sec. 20-251. Scope.
I In addition to all other standards required by section 20 -232, the standards in this
division shall apply to conditional uses if they are to be located in agricultural or residential
districts. 1
(Ord. No. 80, Art. V, § 9(5 -9 -1), 12.15 -86)
Supp. No. 2
1176 1
4 1
CARSON AND GLELLAND
ATTORNEYS AT LAW
6300 SHINGLE CREEK PARKWAY, SUITE 305
JEFFREY A. CARSON MINNEAPOLIS, MINNESOTA 55430-2190 TELEPHONE
WILLIAM G CLELLAND (612) 561 -2800
STEVEN C. HEY
FAX
ELLEN M SCHRED£R (612) 561-1943
February 15, 1993
Ms. Sharmin Al -Jaff, Planner I HAND DELIVERED
' CITY OF CHANHASSEN
690 Coulter Drive
P.O. Box 147
Chanhassen, Minnesota 55317
1
RE: Lindbery Application
Dear Ms. Al -Jaf f :
Pursuant to your direction, I enclose a copy of my Memorandum
together with Exhibits for my presentation before the Board of
Appeals and Adjustments and the Chanhassen City Council.
understand this matter is on for hearing the 22nd of February,
1993, at 6:30 p.m.
Thank you for your assistance.
' Very truly yours,
CARSON AND CLELLAND
' l
J,pffrey A. Carson
JAC:nrz
1 Enclosure
cc: Harry Lindbery
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IN RE: THE CONDITIONAL USE PERMIT OF HARRY LINDBERY
FOR OPERATION OF A CONTRACTOR'S YARD
AT 1700 FLYING CLOUD DRIVE,
CHANHASSEN, MINNESOTA
M E M O R A N D U M
TO: Mayor, Council and Board of Adjustments and Appeals
City of Chanhassen
In September of 1988, Harry Lindbery, owner of the property
located at 1700 Flying Cloud Drive, Chanhassen, Minnesota, and
' consisting of approximately 40 acres, received a Conditional Use
Permit from the City of Chanhassen (CUP 88 -11) for operation of a
' contractor's yard and contractor's yard activities. The zoning
district is A -2.
' Contractor's yard activities are defined in the Chanhassen
Code as follows:
Contractor's yard means any area or use of land where
vehicles, equipment, and /or construction materials and
' supplies commonly used by building, excavation, roadway
construction, landscaping and similar contractors are stored
or serviced. A contractor's yard includes both areas of
' outdoor storage and areas confined within a completely
enclosed building used in conjunction with a contractor's
business.
' Exhibit 1.
Mr. Lindbery has, in fact, used and operated the property
1 identified above within the Code definition of a contractor's yard
' since that date. At the time Mr. Lindbery made his application to
Chanhassen, he intended, and still intends, to construct a 7,000
' square foot building on the property. Over the past several years,
circumstances (mainly outside the control of Mr. Lindbery) have
caused the construction of the building to be delayed. I will
outline the circumstances of the building delay below.
Before discussing the history of the building itself, I would 1
like to point out several facts that should be considered by the
City:
1) The definition of contractor's yard activities does not
require a building; that is Mr. Lindbery does not need to
construct a building on this property to use the property
for a contractor's yard. Exhibit 1.
1
2) Mr. Lindbery has used his property since receipt of the
Conditional Use Permit as a contractor's yard.
3) Although your zoning code has now been amended to
prohibit contractor's yards in A -2, Mr. Lindbery's use
would qualify as a legal non - conforming use of his land.
Exhibit 2.
4) Although all terms and conditions of the CUP have not
literally been met, negotiations between Chanhassen staff
and Mr. Lindbery over the years have, in fact, amended
the CUP alleviating the necessity for strict compliance
with the permit. (Example: the requirement that he
remove all buildings from the property; conversations
with staff concluded that moving caretakers into the
house on the property would be sensible for policing and
safety protection both to Mr. Lindbery and to the City.)
Exhibit 3.
5) City staff is not suggesting violation of the CUP terms
but rather has taken a position that the CUP has expired,
or in the alternative, the use of the CUP has been
discontinued. Exhibit 4. '
6) A criminal complaint filed in the summer of 1992
regarding improper storage charged Mr. Lindbery with four
misdemeanors, which misdemeanor complaints are pending in
Carver County District Court; Mr. Lindbery has since
resolved the alleged problems. The offending units
themselves were a part of Mr. Lindbery's use of the
property as a contractor's yard. Exhibit 5.
7) Mr. Lindbery has paid $1,164.33 for a building permit to
the City of Chanhassen (10/26/89); $34,752.00 for his
building shell (3/15/89); $500.00 to MnDOT for their
review, all obviously with the anticipation that the
building would go up as planned. (Note: The building
2
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permit was issue over one year after the effective date
of the Conditional Use Permit and yet staff now alleges
a one year expiration violation.) Exhibits 6, 7 and 8.
' 8) City staff continued to deal with Mr. Lindbery and the
Conditional Use Permit as recent as October 22, 1990,
over two years after issuance of the Conditional Use
Permit. See Exhibits 6, 9 and 10. (These events all
took place over two years after issuance of the
Conditional Use Permit indicating both that Mr. Lindbery
' continued to use the property in accordance with the
terms of the Conditional Use Permit and that the one year
expiration has nothing to do with the construction of a
' building itself.)
9) Hearings to consider amendment of the code to eliminate
contractor's yards from A -2 via Conditional Use Permit
' suggest (a) that existing contractor's yards would be
handled as legal, non - conforming uses and (b) that no
landowner with a contractor's yard was notified or
' present at the hearing. Exhibit 11.
10) Mr. Lindbery has a legitimate complaint regarding the
deficiency in the City's procedural process to date: (a)
the Conditional Use Permit itself says a hearing will be
held if violation is alleged; (b) Code Section 20.237
requires a public hearing to consider revocation of a
' Conditional Use Permit. Exhibit 12.
11) Mr. Lindbery has met with other agencies as required by
the City and has met all requirements of said agencies.
Exhibit 8.
With regard to Mr. Lindbery's attempts to construct the
anticipated building on his property per his application, Mr.
' Lindbery has paid over $36,000.00 for building inspection fees,
MnDOT fees and for the building shell itself. He has poured
1 footings and was ready to construct or place the building when a
disagreement between Mr. Lindbery and a former Chanhassen Building
Inspector stopped progress. This dispute involved the type of
heating for the building; Mr. Lindbery wanted to place floor
heating in the concrete before pouring and the Building Inspector
refused. The Building Inspector refused even though the heating
3
II
proposed by Mr. Lindbery met all requirements of the Chanhassen i
Code (Uniform Building Code). The Building Inspector simply had no
right to reject Mr. Lindbery's chosen heating method. Exhibit 13.
Additional issues relating to the proper storage for hazardous
materials /waste surfaced and took additional time to resolve.
Then, unfortunately, Mr. Lindbery crushed his leg in a work related
1
accident and was unable to do any work personally on the building
project from June 1, 1991 to approximately June of 1992.
1
But for the dispute between Mr. Lindbery and the former City
Building Inspector regarding heating, the building that is under '
discussion would be up and functional. The fact that there is no i
building on this property does not detract in any way from the use
of the property as a contractor's yard. Mr. Lindbery has now been
1
forced to defend criminal allegations and a jury trial is set in
District Court this March; additionally, Mr. Lindbery is required i
to appear before the City to defend the reasons his building is not
constructed and, indeed, defend the continued use of his property
for a contractor's yard. In fact, he has continued to use his
property as a contractor's yard from the beginning and would like
to continue to do so and construct the building that he has
purchased. Mr. Lindbery has never ceased using the property as a
contractor's yard and mere statements by staff that he has, without
any factual basis or support, cannot be the basis of City action. i
Mr. Lindbery urges you to consider the above facts and to
weigh the relative equities before taking or confirming any adverse
4
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1 Mr. Lindbery urges you to consider the above facts and to
weigh the relative equities before taking or confirming any adverse
action towards Mr. Lindbery and his contracting yard operation. If
you accept staff's recommendation, you are relegating the property
to agricultural use, in effect destroying its present usefulness
and value. Based on the above history, this would be both unfair
and unlawful. Staff has already concluded that Mr. Lindbery's use
1 should end. There was no fact - finding hearing but mere
conclusions, statements made regarding the status of the property.
1 Mr. Lindbery continues to use his property for lawful purposes
contemplated by the 1988 Conditional Use Permit. We urge you to
affirm his position.
Respectfully submitted,
' CARSON AND CLELLAND
DATED: c- " /5 /N7
1 l Jef e X Carson; ID #1543X
Atney for Harry Lindbery
san Shingle Creek Parkway
Suite 305
Minneapolis, Minnesota 55430 -2190
(612) 561 -2800
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EXHIBITS TO MEMORANDUM TO 1
CITY OF CHANHASSEN DATED 2/15/93
1
Exhibit 1 - Copy of Chanhassen City Code Section 20 -1 relating
to contractor's yards
Exhibit 2 - Copy of Chanhassen City Code Sections 20 -71 and 20-
72 relating to the definition of Non - conforming
uses
Exhibit 3 - Conditional Use Permit dated September 12, 1988 1
Exhibit 4 - Correspondence from City Attorney, Elliott Knetsch
dated October 2, 1992
Exhibit 5 Criminal Complaint
Exhibit 6 - Building Permit Receipt for $1,164.33 paid on
10/26/89
Exhibit 7 - Building Purchase Order showing receipt of
$34,752.00
Exhibit 8 - Letter from MnDOT dated November 1, 1988 showing
payment of $500.00 1
Exhibit 9 - Inspection Report dated October 22, 1990
Exhibit 10 - Notes attached to Conditional Use Permit dated 1
October 23, 1990
Exhibit 11 - Planning Commission Minutes from April 19, 1989 1
meeting
Exhibit 12 - Copy of Chanhassen City Code Section 20.237 1
Exhibit 13 - Heating system brochure
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20-1 CHANHASSEN CITY CODE
I Church means a building or edifice
g consecrated to religious worship, where people join ----)
together in some form of public worship under the aegis and direction of a person who is
authorized under the laws of the State of Minnesota to solemnize marriages. A church may
include living quarters for persons employed on the premises and classroom facilities. The
following are not considered as churches: Camp meeting grounds, mikvahs, coffee houses,
1 recreational complexes, retreat houses, sleeping quarters for retreatants during spiritual
retreats extending for periods of more than one (1) day. Bible camps with live -in quarters,
1 publishing establishments, ritual slaughter houses, radio or television towers and transmis-
sion facilities, theological seminaries, day care centers, hospitals, and drug treatment centers
are not churches.
I Class A wetlands means wetland types 3, 4, 5, 6, 7 and 8. In the case of wetlands adjoining
a public waters designated as lake or pond this class shall also include type 2 wetlands. Type 2
I wetlands shall also be deemed a class A wetland when adjoining a stream designated as public
waters to the extent that it encroaches upon the one - hundred -year floodplain of the stream.
Class B wetlands means type 2 wetlands not adjoining a public waters designated as lake
1 or pond nor within the one - hundred -year floodplain of a stream designed as public waters.
Clear - cutting means the removal of an entire stand of trees.
Collector street means a street that carries traffic from minor streets to arterial streets.
1 Conference/convention center means a preplanned, centrally managed development con-
taining facilities for business or professional conferences and seminars and containing ac-
commodations for overnight lodging, eating and recreation. The development is characterized
by architecturally integrated buildings, common use of parking areas, and incorporation of
passes recreational amenities into overall site design.
I Conforming building or structure means any building or structure which complies with
all the regulations of this chapter, or any amendment thereto.
I Contractor's yard means any area or use of land where vehicles, equipment, and/or
construction materials and supplies commonly used by building, excavation, roadway con-
struction, landscaping and similar contractors are stored or serviced. A contractor's yard
1 includes both areas of outdoor storage and areas confined within a completely enclosed
building used in conjunction with a contractor's business.
1 Cul- de-sac means a minor street with only one (1) outlet and having an appropriate
turn- around for the safe and convenient reversal of traffic movement.
Day care center means any facility or home where tuition, fees or other forms of compen-
11 sation is charged for the care of children and which is licensed by the state as a day care
center.
Density, gross means the quotient of the total number of dwelling units divided by the
1 gross site area.
Density, net means the quotient of the total number of dwelling units divided by the
developable acreage of the site. Developable acreage excludes wetlands, lakes, roadways, and
I other areas not suitable for building purposes.
1 1144
1 EXHIBIT 1
§ 20-60 CHANHASSEN CITY CODE
i °
Sec. 20-60. Denial. ,
Variances may be deemed by the board of adjustments and appeals and the council, and
such denial shall constitute a finding and determination that the conditions required for
approval do not exist.
(Ord. No. 80, Art. III, § 1(3-14(6)), 12- 15 -86)
Secs. 20-61-20-70. Reserved.
DIVISION 4. NONCONFORMING USES*
Sec. 20-71. Purpose.
The purpose of this division is:
(1) To recognize the existence of uses, lots, and structures which were lawful when
established, but which no longer meet all ordinance requirements;
(2) To prevent the enlargement, expansion, intensification, or extension of any noncon-
forming use, building, or structure;
(3) To encourage the elimination of nonconforming uses, lots, and structures or reduce
their impact on adjacent properties.
(Ord. No. 165, § 2, 2- 10-92)
Sec. 20.72. Nonconforming uses and structures.
(a) There shall be no expansion, intensification, replacement, structural change, or relo-
cation of any nonconforming use or nonconforming structure except to lessen or eliminate the
nonconformity.
(b) Notwithstanding any other provisions of this chapter, any detached single- family
dwelling that is on a nonconforming lot or that is a nonconforming use or structure may be
altered, or expanded provided, however, that the nonconformity may not be increased. If a
setback of a dwelling is nonconforming, no additions may be added to the nonconforming side
of the building unless the addition meets setback requirements.
(c) No nonconforming use shall be resumed if normal operation of the use has been
discontinued for a period of twelve (12) or more months. Time shall be calculated as beginning
on the day following the last day in which the use was in normal operation and shall run
continuously thereafter. Following the expiration of twelve (12) months, only land uses which
are permitted by this ordinance shall be allowed to be established.
*Editor's note — Section 2 of Ord. No. 165, adopted Feb. 10, 1992, amended Div. 4 in its
entirety to read as set out in §§ 20.71- 20-73. Prior to amendment, Div. 4 contained §§
20.71 - 20.78, which pertained to similar subject matter and derived from Ord. No. 80, Art. III,
§ 5, adopted Dec. 15, 1986; and Ord. No. 163, § 1, adopted Feb. 24, 1992.
Supp. No. 4
1164
EXHIBIT 2
CITY OF CHANHASSEN
CARVE. ...iD HENNEPIN COUNTIES, MIN _.,OTA
CONDITIONAL USE PERMIT
II 1. Permit. Subject to the terms and conditions set
I forth herein, the City of Chanhassen hereby grants a conditional
use permit for: Contractor's yard activities
1 2. Property. The permit is for the following described
property in the City of Chanhassen, Carver County, Minnesota:
II That part of the East Half of the Southeast Quarter of Section
'34, Township 116 North, Range 23 West of the 5th Principal
I Meridian which lies northerly of the center line of U. S. Highway
No. 212 and southerly of the southerly line of Chicago North
Western Railway Company.
I Subject to an easement for Highway No. 212 over and across the
southerly 50.00 feet thereof.
II 3. Conditions. The permit is issued subject to the
following conditions: See attached Exhibit A.
1 4. Termination of Permit. The City may revoke the
permit following a public hearing under any of the following
1 circumstances: material change of condition of the neighborhood
I where the use is located; violation of the terms of the permit.
5. Criminal Penalty. Violation of the terms of this
1 conditional use permit is a criminal misdemeanor.
;:Y
Dated: September 12, 1988 .
c- C
i. in ./ ‘ L
•..
I t %� I Ma
,JT'r By: Illf_0,
Y
I STATE OF MINNESOTA) Its Clerk
) ss
II COUNTY OF CARVER )
The f regoing instrument was acknowledged before me this
,Af day of , 198t, by Thomas L. Hamilton,
I Mayor, and Don shworth, City Manager of the City of Chanhassen,
a Minnesota municipal corporation, on behalf of the corporation.
II �.rr r
r' -- �- • •"-)T c N .tary P• tic
'' ► _ i � J r.
M cW:i..on e., . t 1:.91 - / J _ .
I i MTIBIT e
pages)
EXHIBIT A II
1. All outdoor storage areas must be completely screened by 100%
opaque fencing, berming or landscaping. A proposed screening
plan shall be submitted prior to issuance of a building permit.
2. Hours of operation shall be from 7:00 a.m. to 6:00 p.m. Monday II through Saturday. Work on Sundays and holidays is not permitted.
3. Light sources shall be shielded.
4. No outside speaker systems are allowed.
5. Compliance with the conditions of MnDOT including installation of II
a right turn lane and a left turn lane if required by MnDOT.
6. Installation of bituminous driveways, parking areas and loading
areas.
7. Compliance with the conditions of Resource Engineering as written
in their memo dated August 9, 1988. ,
8. Protection of the two septic system sites during construction.
9. Installation of a holding tank. ,
10. The building must be sprinklered.
11. Provision of one handicap parking space.
12. Contractor's yard activities only as defined in the zoning ordi-
nance, are permitted. There shall be no shipping or other non -
contractor's yard activities.
13. The applicant shall obtain and comply with all conditions of the
permits from the Department of Natural Resources and the Watershed
District permits.
14. All the existing buildings shall be trucked off -site and disposed
of properly.
15. The erosion control plan shall be revised to include check dams at II
100 -foot intervals in all proposed drainage swales.
16. The plans shall be revised to include erosion control measures for
the proposed construction within the immediate area of Bluff
Creek.
17. The pond outfall shall be revised to include a submerged outlet
detail in place of the wooden skimmer.
18. Submission of a vehicle inventory list. '
19. No heavy equipment or machinery shall be operating between 6:00
p.m. through 7:00 a.m.
20. No shipping activities shall originate on site.
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attorneys at Law
Tr , raas 1 Cana-kit (612) 452-5
R kraut. ,n Fa\ (t'12) 4 52 -5552
Thom \ ":
Gar, G
•
Larne- R. \\
Elh 'r fi Kner
' N1hrel A Br.'rd,l,
Rena P •r January 13, 1993
Attorney Jeff Carson
' CARSON & CLELLAND
Brookdale Corporate Center
Suite 305
' 6300 Shinglecreek Parkway
Minneapolis, MN 55430
' Re: Your Client: Harry Lindbery
Chanhassen Conditional Use Permit 88 -11
Dear Mr. Carson:
We represent the City of Chanhassen. We have been
instructed to notify Mr. Lindbery that the City Planning Director
' Paul Krauss has made a determination regarding the above
referenced conditional use permit.
' The determination is as follows:
1. CUP 88 -11 is void. City Code Section 20 -236 provides as
follows:
' "If substantial construction has not taken place
within one (1) year of the date on which the
' conditional use permit was granted, the permit is
void except that, on application, the Council,
after receiving recommendation from the Planning
Commission, may extend the permit for such
additional period as it deems appropriate."
Mr. Lindbery installed concrete footings in 1989. Since
' that date, no further construction has taken place. Mr. Lindbery
has not made an application for an extension. Therefore, it is
the City's determination that CUP 88 -11 is void.
2. In the alternative, the conditional use was discontinued
for six (6) months so the permit is void. City Code Section
20 -236 states as follows:
' "If the conditional use is discontinued for six (6)
months, the conditional use permit shall become void.
Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121
EXHIBIT 4 (2 pages`
.1 L
Attorney Jeff Carson
January 13, 1993
Page 2
1
This section shall apply to conditional use permits
issued prior to February 19, 1987, but the six (6)
month period shall not be deemed to commence until
February 19, 1987." 1
Mr. Lindbery has not conducted any contractor's yard
activities on the subject property at any time, other than
illegal storage of containers and concrete pipes. Therefore, the
conditional use permit is void. City Code Section 20 -236 does
apply to any permit issued after the effective date of that
section, which was December 15, 1986. The reference to February
19, 1987 allows a grace period for permits issued prior to
February 19, 1987. It does not have the effect of limiting
section 20 -236 to permits issued prior to February 19, 1987. 1
3. The time to extend the permit has expired. City Code
Section 20 -236 allows a person to file an application to extend a
conditional use permit. Mr. Lindbery's permit was issued
September 12, 1988. Mr. Lindbery had until September 11, 1989 to
file for an extension. Mr. Lindbery did not file an extension
within the time specified by the ordinance. Therefore, the City
Council has no power to grant an extension at this time.
If your client is aggrieved by this determination, he may
file an appeal with the Board of Adjustments and Appeals pursuant
to City Code Section 20- 28(b)(1) (copy enclosed).
Your client also has the option of meeting with City staff
prior to the hearing with the Board of Adjustments and Appeals.
You may contact Sharmin Al -Jaff or Paul Krauss directly at
(612) 937 -1900 to arrange the meeting. You previously indicated
to me that you wanted an opportunity to review the City's file on
this matter. I do not object to this request provided I am given
notice of when you will review the file.
Please call if you have any questions or comments.
CAMPBELL, SON, SCOTT
& FUCH A.
By: .LA WA
Elliott B. Kn
EBK:mlw
Enclosure
cc: Don Ashworth
Paul Krauss
Sharmin Al -Jaff
1
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I I STATE OF MINNESOTA DISTRIC1 COURT
COUNTY OF CARVER CRIMINAL DIVISION
II FILE NO.
STATE OF MINNESOTA
(City of Chanhassen)
Plaintiff, COMPLAINT - SUMMONS
vs. FOR MISDEMEANOR OR
PETTY MISDEMEANOR
HARRY LINDBERRY
ill Defendant, DOB:
6901 Maloney Avenue
Minnetonka, MN 55343
:' COMPLAINT
CC) C.
$cott Harr being duly sworn makes complaint to th above -
named Court and says that he /she believes this information and other persons
s j .from whom it is obtained to be reliable and that there is probable cause to
believe that the above -named Defendant committed the offense described
ell below. The complainant states that the following facts establish probable
cause: , ..
i Your complainant is Scott Harr,• Public Safety Director for the
I City of Chanhassen. In that capacity I have reviewed City
records, files and inspection reports and believe the following
1 facts to be true.
?. The defendant, HARRY LINDBERY, is the owner of certain real
property located at 1700 Flying Cloud Drive in the City of _.
Chanhassen, County of Carver, State of Minnesota (Subject
111 ' Property), legally described as follows: _.
That part of the East Half of the Southeast Quarter of
Section 34, Township 116 North, Range 23 West of the 5th
Principal Meridian which lies northerly of the center line
nil
• of U.S. Highway No. 212 and southerly of the southerly line
4 of Chicago North Western Railway Company.
"' (continued) •
THEREFORE, Complainant requests that said Defendant, subject to bail or
I conditions of release where applicable,
(1) be arrested or that other lawful steps be taken to obtain
Defendant's appearance in court; or
• (2) be detained, if already in custody, pending further proceedings;
' and that said Defendant otherwise be dealt with according to law.
I Charges: Illegal outdoor Complainant
storage (4 counts) Scott Harr
Being duly authorized to prosecute
i ' the offense charge, I hereby approve
this 45i
Ordinance(s) 20 - 909 `
• II Elliott B. Kn ch, #168130
Prosecuting Attorney, City of
Chanhassen
II BEE REVERSE SIDE FOR COURT DATE 1380 Corporate Center Curve, #317
Eagan, MN 55121
(612) 452 -5000
EIIBIT 5 (3 pages)
{ CITY OF CHANHASSEN V. HARRY LINDBERRY
PAGE 2
1
On or about July 8, 1992, the Subject Property was inspected by a
City building official. The inspector observed seven sea /land
containers stored in the open on the Subject Property. The
inspector also observed approximately ten round concrete pipes
stored openly on the Subject Property. 1
On July 14, 1992, the Subject Property was inspected by a person
from the City Planning Department. The City Planner observed the
seven sea /land containers and approximately ten round concrete
pipes stored openly on the Subject Property.
On October 28, 1992, the Subject Property was inspected by a 1
person form the City Planning Department. The City Planner
observed the seven sea /land containers and approximately ten
round concrete pipes stored openly on the Subject Property. 1
Chanhassen City Code Section 20 -909 - Outdoor Storage, prohibits
outdoor storage in the manner that it is being conducted on the
Subject Property.
OFFENSES
COUNT I - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section
20 -909 - 0 - 90 days and /or $700
1
That on or about July 8, 1992, in the City of Chanhassen, County
of Carver, State of Minnesota, the defendant, HARRY LINDBERY,
then and there being, did wrongfully and unlawfully permit
illegal outdoor storage on the Subject Property.
COUNT II - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section
20 -909 - 0 - 90 days and /or $700
That on or about July 14, 1992, in the City of Chanhassen, County II
of Carver, State of Minnesota, the defendant, HARRY LINDBERY,
then and there being, did wrongfully and unlawfully permit
illegal outdoor storage on the Subject Property.
COUNT III - ILLEGAL OUTDOOR STORAGE Chanhassen City Code
Section 20 -909 - 0 - 90 days and /or $700
That on or about October 28, 1992, in the City of Chanhassen, 1
County of Carver, State of Minnesota, the defendant, HARRY
LINDBERY, then and there being, did wrongfully and unlawfully
permit illegal outdoor storage on the Subject Property.
1
II
CITY OF CHANHASSEN V. HARRY LINDBERRY
I -----------------
P AGE - 3 ---- ------------- ----------------
- Chanhassen Cit Cod
COUNT IV _ ILL�EGA900aa�0and orAG700
20-909 thereafter,
1992, and each day
That on or about July 15, of Carver. State of Minnesota
County did wri
I
City of tha HARRY e LINDBERY, then and there being, di Su'
defendant,
and unlawfully p ermit illegal outdoor storage I -Property.
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PUBLIC SAFETY DEPAr -MENT i , SERIAL NO B 3 5 C 3 ..
Building and Zoning Div ,n ,,
690 Coulter Drive — P. 0. Box 147
Chanhassen, Minnesota 55317 z • S PEI?? Tr Q .Y
612 — 937-1900
APPLICATION FOR BUILDING PERMIT CITY OF DATE 1C 1
SITE CHANHASSEN EST BUILDING VALUE �.; .
ADDRESS I7" Flying 0'10'`1 == Drive
t x Name HE,-,y L{nrT 7, ZONING DISTRICT
1
Address 6901 t —,- - AVP RES COM X IND. PUBLIC
r,; -i
0 City 1k M Tel (9 .. - 9570 NEW jr EXISTING P.I N.
tx Name S 1
Z � SUBDI VISION lZtt
0u Address
v
Q LOT BLOCK
I- City Tel No
i
SECTION 34 NORTH HALF SOUTH HALF X
1 I hereby acknowledge that I have read this application and state that the
information is correct and agree to comply with the -anhassen, Minnesota $ 630.50
ordinances and the S .te of Minnesota la ; a egulati = r construction. Building •83
Signature of I)/ r
i Permittee t•� t i `iw Plan Check $
CALL FO "/ INSPECTIONS LIS i-'l Surcharge slim, p,' -= M. Y $ 49.00
■
0 BUILDING CARD
I PHONE 937 -1900 S.A.C. FDU&i SPAM IL a
- 75.00
i Sewer Surcharge $
DO NOT WRITE IN THIS SPACE SEPAL PEZ" ' •
Park Dedication $
PERMIT ISSUED 1
Trail Dedication $
TO 11.tr-"y Z.1t]dr erry Water Unit APPS TM-:- Ar.r. SIM= $
On the express condition that all work shall be done in accordance PI-SAL
SIM1 WrIIIRI
with the ordinances end building codes of the City of Chanhassen 1
l and the State of Minnesota. This Permit is void if work is not com- - Sewer Unit um mum Affin1lid
I menced within 120 days or abandoned for 120 days. - ISSUED-
Bui16'ing lnspe�'tion Divisi i Water Meter $
I - /
�) ! � / r Public Safety Dedicat . n., ;' / j, f g G , $
BY �c:�`
Other Fee t! ...L • S —
Of
f 1164.33
TOTAL FEE PAID -
G SITE ADDRESS &E LL pmsaT CZ Y Date SERIAL NO. B
1700 Flying Cloud Dr. l 10 -26-89
t Subdivision Property I.D No. Contractor Phone No.
1
r, tr>vlatted H> te T3r Yiho� - 93s -9;70
Lot No. Block Section No. Estima Completion Dare Building Valuation
34 0 "'h ,pS 4 $98,000.
Survey No.
I. NewZJ Alteration ❑ Repair 0 Addition ❑ Demolish 0 Other
X -
' Residential ❑ Single Family 0 , Multiple Dwelling ❑ No. of Units Other 0 1
Commercial CS Industrial 0 Specific Use. storage of coast. equi�rent & supplies
Kind of Construction Type of Construction IFR IIFR 111 1 -hr,N III 1-hr,N IV H.T. V 1 -hr'
- SIZE OF WORK - Occupancy A B E H I R M
DIMENSIONS AREA ELEVATIONS Group Division 1 2 2.1 3 4 5
x = Sq.Ft. Planning Case No.
x =
Sq.Ft. Zoning District
x = Sq.Ft. Use Permitted ❑
Sq.Ft. Conditional ❑ Setback: Front
x Side I
Non-conforming ❑
x = Sq.Ft. Rear
Variance ❑
TOTAL FLOOR AREA Sq.Ft.
REMARKS- $6 50, plan check $409.83, tax $49.00, sewer such. $75.00 1
TOrA'L r . 33 a "0- c i 1 ? 2 / D fL6 ''P
EXHIBIT 6 II
WedgCor, Inc. DELIVERY/PICK-UP INVOICE
1 ' Jamestown,ND554Q2 DEALER DEMAND TO COLLECT FUNDS
701.252.7380
P.O. # D5 -9396
I DEALER: REGENCY STEEL SHIP TO: Harry Lindery "CPU"
6901 MaLoney Avenue
Hopkins, MN 55343
Prorate /Community Freight Li
Private Freight It
1 Per our notification on March 14, 1989 , your order is scheduled to be delivered Within Ten (10) Days
of , or picked up on 8 AN MARCH 22, 1989 . Est. weight: 55,386
I NOTICE:
Actual delivery may vary before or after this date as delivery is dependent on material and carrier
availablity. Construction equipment or additional labors should be arranged after the driver contacts
I you with a more specific delivery date.
The deafer has ordered WedgCor to collect funds. WedgCor requires Certified Funds in the amount
I of $ 34,752.00 , made payable only to WedgCor, Inc., to be collected at time of arrival or
pickup. This is not an assignment of terms and conditions of the dealer purchase order or the sales
contract between the buyer and dealer.
Failure to pickup or accept delivery at the prescribed time above, may result in community freight
loss, storage charges, unloading and any other costs incurred by WedgCor. Refer to your dealer and /or
I dealer manual. Buyer or buyers agent acknowledges the dealer is independent and not an agent or
contractor of WedgCor.
Original C.O.D. $34,752.00
1 REVISIONS AND CHANGES:
1
1 *Certified or cashier's check Current C.O.D. $34,752.00*
' NOTICE: Your building freight was calculated to Hopkins ctty limit. If delivery drop site is inside or outside the city,
additional freight at regular rate round trip will be added (per Schedule C in the dealer manual).
Your driver will attempt to call in advance with a more specific time and day of delivery. To avoid downtime charges, please
take the time to prepare for delivery: 1. Supply stacking materials for proper storage during unloading to prevent damages;
' 2. Sufficient help and unloading equipment. Missed pickups — refer to dealer and/or dealer manual. You or your dealer are
responsible for complete inventory of your building.
BE SURE TO COMPLETELY INVENTORY YOUR BUILDING MATERIALS!
DATE March 15, 1989 SIGNED 4,;i;0(2dt
I 5442•A Two Rivers Printing. Inc.
EXHIBIT 7
e Minnesota 1 '
o Department of Transportation
District 5
, 2055 No. Lilac Drive
-4,' of .rse Golden Valley, Minnesota 55422
(612) 593• ea4)49 II
Novemer 1, 1988 1
1
Harry Lindberg II 6901 Maloney Avenue
Hopkins, Minnesota 55343
Re: Permit 5- A -88 -56
II
T.H. 212: C.S. 1013
Loc: Near Jct. County Road 10
Dear Harry: 1
' The above referenced Access Permit has been approved based on your
II application dated September 26, 1988.
t This permit may be obtained at our office upon deposit of a certified
check in the amount of $500.00, payable to the State of Minnesota,
II
Department of Transportation.
Upon obtaining this permit, you will be authorized to perform the
II
approved construction within the State's right of way, subject to the
rules and regulations, special provisions, specifications and plans
contained in the permit.
Since ly,
Y
II
♦ II
William G. Warden
Roadway Regulation Supervisor
II
HARRY LINDBERY 2135
1
6901 MALONEY AVE.
HOPKINS, MN 55343 Nov. 4 19.1113._ 75- 14921910
I
PAY T° THE State of ZSn.Dept.of Trans.
ORDER OF I $ r500.001
* ** Five Hundred & No /100 * ** DOLLARS 1
SOUTHWEST or 1L STATE BANK /
7600 PARKIAWN AVE EDINA, MINN. 55435 / • // 1
...Permit 5- A -88 -56 / I L ' l '��-
, :09 LO L49 241: 20 2 In 5 : 1 1 ' 2 1 3 5 f
__ - .4.. EXHIBIT 8 1
f .. .
1
1
C- f - —
0 ( • - INSPECTION REPORT
C • . . 4 CITY OF CHANHASSEN, MINNESOTA
1 C (. C. C xi / 1 C. _ 9 0 937-1900
` ' O • C O INSPECTION FOR sRp7 -'f 7 (% , TIME
r , 1
O C. Z TIME & DATE INSPECTION DESIRED 1 Ob 1 ( 2 Z
ADDRESS_ I —/ 0 Z) r I ` ^ t � ('t V� PERMIT NO.
I CONTRACTORS arrIIS. 1—/ i4 y Q"
e rrc r TAKEN BY• ,
WATER METER NO Q
I REMOTE NO
1 LOCATION
- CORRECTIONS
..... S (A 6-, IN-- ct p (-)F Mr) b 0 prvi,N
f
el tI% ca�o i a P�aval
1 ."?..\) � r l n 0 � S l>ih RAG I
1 3 -c t r 1 v►1e, k r /pp,
1
1 _ s- o~ DN5 /
9 ) Se u ti r tc,i plen4 - Al°'1
I .. OLC_CO•
CP
C• �CC•1
�.OcC cos
0 C 1 .. C. C_ O4
O( C_ C O•
_00
If no corrections are listed above, approval is hereby given to proceed. You will be in
violation of the ordinance if you do not call for the proper inspections and make cor-
rection as called for.
I I 0122/90 Time 9v II Ob
Dat 4 Aspsctor
1 EXHIBIT 9
(1..All
EXHIBIT A
40 10 (
outdoor storage areas must be completely screened by 100%
opaque fencing, berming or landscaping. A proposed screening
plan shall be submitted prior to issuance of a building permit.
Hours of operation shall be from 7:00 a.m. to 6:00 p.m. Monday II hrough Saturday. Work on Sundays and holidays is not permitted. ight sources dhall be shielded.
II 4. No outside speaker systems are allowed.
I
/c u , ,, G gy= Compliance with the conditions of MnDOT including installation of
Vr a right turn lane and a left turn lane if required by MnDOT. II
el r .'
IF , %, .6. Installation of bituminous driveways, parking areas and loading
areas.
II
OW Compliance with the conditions of Resource Engineering as written
in their memo dated August 9, 1988.
II
Protection of the two septic system sites during construction.
9. Installation of a holding tank. 1
10. The building must be sprinklered.
aS Provision of one handicap parking space. I
12. Contractor's yard activities only as defined in the zoning .ordi- II
; nance, are permitted. There shall be no shipping or other non -
rj- t(w n) contractor's yard activities.
- ! E '3 The applicant shall obtain and comply with all conditions of the II
(4i,, permits from the Department of Natural Resources and the Watershed
```v „l; l.� District permits.
� 1.r' , c • All the existing buildings shall be trucked off -site and disposed II
•• ? ”- of properly.
. -0 s .
. ., -
�� 15. The erosion control plan . shall be revised to include check dams at II
.'" 100 -foot intervals in all proposed drainage swales.
16. The plans shall be revised to include erosion control measures for I
the proposed construction within the immediate area of Bluff
/,-- Creek.
II i
I7./The pond outfall shall be revised to include a submerged outlet
/•- �------ detail in place of the wooden skimmer.
/ . .. ,..7
� �'18. Submission of a vehicle inventory list. I
/,:if /
`" 19. No heavy equipment or machinery shall be operating between 6:00
p.m. through 7:00 a.m.
II
20. No shipping activities shall originate on site.
w Lv
• Paire.mrG 14 I
EXHIBIT 10 s
5 1.12319-0 1
II Planning Commission Meeting
April 19, 1989 - Page 30
II/PUBLIC HEARING:
ZONING ORDINANCE AMENDMENT TO AMEND CHAPTER 20 OF THE CITY CODE BY
DELETING SECTION 20 -255, SECTION 20 -574, SUBD. 6, AND SECTION 20 -773,
II SUBD. 6 (CONTRACTOR'S YARDS), CITY OF CHANHASSEN.
Steve Hanson presented the staff report. Chairman Conrad called the
public hearing to order.
Wildermuth moved, Elison seconded to close the public hearing. All voted
in favor and the motion carried. The public hearing was closed.
Batzli: I'd like the record to show that there's nobody else in the room
except for us and staff.
II Conrad: Any general comments?
Emmings: I want to ask if the contractor's yards that presently exist,
were those people specifically notified of this?
Hanson: We did not individually notify them.
1 Elison: I thought we usually do...
' Emmings: Are you telling us that we're not obligated to?
Conrad: We're not. The question is, to be sure...
Emmings: On one hand...
Conrad: Does anybody else have any other comments?
1 (Discussion went on between commissioners that wasn't audible on the
tape.)
Headla: If we approve this tonight, how's that going to affect the ones
that already exist?
I Hanson: It won't...
Headla: Then I don't see any reason to not approve it.
I Conrad: It's just that, would we learn anything additional?
I Emmings: My concern is this. If we're going to make them, I guess the
word is legal non - conforming uses right? My question is, what terminates
a legal non - conforming use? If they don't use that property for a period
of a year, how would we ever know?
1 Elison: You've got to tell the neighborhood.
I Hanson: It's the same way we'd know that a conditional use now had
expired.
EXHIBIT 11 (2 pages)
Planning Commission Meeting
April 19, 1989 - Page 32
Erhart moved, Emmings seconded that the Planning Commission recommend
approval of the amendment to the City Code to delete the following
sections from the zoning ordinance:
Section 20 -255 ,
Section 20 -574, Subd. 6
Section 20 -773, Subd. 6
All voted in favor and the motion carried.
Erhart: My comment is, as time has gone on on this thing, it's become
more and more clear that we are recommending the correct thing...
APPROVAL OF MINUTES: Batzli moved, Wildermuth seconded to approve the ,
Minutes of the Planning Commission meeting dated April 5, 1989 as
presented. All voted in favor and the motion carried.
ITEMS FROM THE PLANNING STAFF. 1
Steve Hanson updated the Planning Commission on what work had been done on
the following items: convenience stores, wetland articles, zoning code,
:se of matrix and letter from Roger Knutson dated April 12, 1989.
Ernmings moved, Wildermuth seconded to adjourn the meeting. All voted in
favor and the motion carried. The meeting was adjourned at 11:40 p.m..
Submitted by Steve Hanson
Planning Director
Prepared by Nann Opheim
1
1
1
• § 20-233 CHANHASSEN CITY CODE �" `A -1.- ^"
s
(b) In determining conditions, special considerations shall be given to protecting - -�r ':
g i�di . -, ,
.
ately adjacent properties from objectionable views, noise, traffic and other negative chara'`�',
1 istics associated with such uses. _
1 1 (Ord. No 80, Art. III, § 2(3 -2-4), 12.15 -86)
Sec. 20 -234. Denial for noncompliance. = .-.z
If the council denies a conditional use permit, it shall state findings as to the wa"
g ys{ :.14f_.-
which the proposed use does not comply with the standards required by this chapter. ; ti 1 -' s : -
( Ord. No 80, Art. III, § 2(3 -2 -5), 12- 15 -86)
Sec. 20 -235. Permits not personal. _. _ f :
1
I I I 111 A conditional use permit shall be issued for a particular use and not fora ar ='
I person. p e -
, _ (Ord. No. 80, Art. lII, § 2(3 -2.6), 12.15 -86) � ' r `_
i I . _ik. r.. .7..: : • '
Sec. 20 -236. Expiration. - -
If substantial construction has not taken place within one (1) year of the date on whi is --.
the conditional use permit was granted, the permit is void except that, on application;-t. -'
council, after receiving recommendation from the planning commission, may extend: .
- _ -` -
permit for such additional period as it deems appropriate. If the conditional use is disco . -
'`'
tinued for six (6) months, the conditional use permit shall become void. This section shA{` :- : l -_ -
apply to conditional use permits issued prior to February _ --
� , ary 19, 1987, but the six-month peri • .E - _..
shall not be deemed to commence until February
ary 19, 1987.
�
' (Ord. No 80, Art. ]II, § 2(3-2-8), 12- 15 -86)
y .ir_. 5 :. k - _ -
•' Sec. 20 -237. Revocation and inspection. ...
(a) Failure to comply with any condition set forth in a conditional use permit shall be a
misdemeanor and shall also constitute sufficient cause for the revocation of the conditional _
,, permit by the city council following a public hearing. The property owner shall be notified 1.
advance of the city council's review of the permit. _- .K
•
(b) Inspections will be conducted at least annually to determine compliance with the _
0 terms of a conditional use permit. - =_
(Ord. No. 80, Art. III, § 2(3 -2 -7), 12- 15 -86; Ord. No. 106, § 1, 8- 14-89) _-
i
; r Secs. 20- 238 -20 -250. Reserved. _
DIVISION 3. STANDARDS FOR AGRICULTURAL AND RESIDENTIAL DISTRICTS
Sec. 20 -251. Scope.
r p '
1 In addition to all other standards required by section 20 -232, the standards in this •
division shall apply to conditional uses if they are to be located in agricultural or residential -=
districts. -
I (Ord. No. 80, Art. V, § 9(5 -9 -1), 12- 15 -86) _
Supp. No. 2
1176
•
1
1 EXHIBIT 13
b A
1 ,
VVirsbo-pePE1tRadiant Hydronic Hea ing Systems
WksbapePEX
Residential Heating
`+.7" • �t Commercial / Industrial Heating
Snowmelt /Frost Protection
0 °y
v
J
41)
" 1 -
•
•
Underfloor and underground
hydronic heat distribution
MOIcz, 1(0)
using the worlds leading
crosslinked polyethylene
u
. a
tubing technology c
1 Techrsolo y
g
1
1
1 F or thousands of years. The result is a tubing that is Wirsbo -pePEX is a 3/4 -inch • Wirsho -PEX tubing holds
people have known that durable. dependable and external diameter tubing the world record for long-
the best wa) to heat an adaptable to the needs of with a nominal 5/8 -inch term pressure testing at
enclosed space is to
I introduce the virtual) all forms of internal diameter. It is tested sustained high temperatures.
�, hydronic and approved at 180 °F nearls 20 y ears at 1 03 °F
heat under the underfloor under 100 PSI. and comes under 175 PSI. and still
surface and l'+- / ,=�,��►�" . heating. A in convenient coil lengths of going.
I allow it to _ Wirsbo-pePEX 400 and 860 feet. In more
radiate up and * 4 - system can be than 600.(x)0 European • Wirsbo -pePEX is listed
through the �� designed to installations. Wirsbo -pePEX with the American Society
JO;
I area. until very i - meet the needs is proving its effectiveness for Testing and Materials
recently. no 01 of homes. in residential. commercial. (ASTM) under specification
distribution apartments, industrial and other numbers F876 and F877.
I technology had offices. stores. environments.
proven capable of sustained manufacturing plants.
operations. hospitals. schools. nurseries
and man) other facilities.
I • Metal piping can corrode
and weaken steadily.
• Electric grid .sr.srenis can , , . f ; f,„ ; 5 " ' A ix ;_ s °f"7' '°11
fatigue rapid]) and are :'- ,'�� } g .y f
r �Z r dam'` . • costh to operate 3 <: r - 4 ,-.. ,
• Plastic tuhine alte s s • , =' ' '
marl e ,� , s s �x _ 4
I can become brittle and r 5[
allow ox) _en to in\ ade the �, • M :: f r 7'..- ip.
system and corrode metal in - X - • pie ii i ,.�
the power plant .' � �, ...-- t, =
• Rubber compounds can Y - t�. �� • • _ ;
I lose elasncirs and also s a, •
' : • 4 , i
permit ox)�_en intrusion. � / s ? _
I 1 1106 1 11
t •
W irsbo - pePEX. a cross linked polyeth) lene f� s _ - - _
(PEX) tubing technolog), ^. { -` _ _ , 4' ' '.
sol\ es these problems and
more. Through an exclusive. • –• y •
patented process, molecules •
in Wirsbo -pePEX are
I crnsslinked to provide a t✓
Alr
plastic with remarkable ,
durability over a wide range
1 of temperature and pressure _� T g i .
•••••°' ,1 _ 46.40 :
combinations. In addition, tit
I Wirsho pePEX is - • 1) j1/40 ri •
wrapped with five layers of
a polymer to prevent `
oxygen diffusion into the ,
I hydronic system. k
` f
lib
1 2 ■ ,
4.
Hydronic Heat
Distribution "7"----------____ -- -_,
—1._ ..m,�. , - . --
In a hydronic underfloor ��
heating system. the entire ill M
floor surface of the area to f13 IR Mi
be heated becomes the * .
radiant heat source Heat is :
delivered b) circulating hot ���p
water or another fluid if . F r.. =• •_
through tubing suspended t r H
inside the floor joists or - r
entrained within the /
concrete or poured -floor d - ..
aggregate used as
underlayment. True Thermal Comfort Individual :one controls allow different rooms to be maintained
A conventional forced - air at different temperatures. reflecting how and when they are used,
System Advantages system heats air to a high the different heating needs of exterior and interior spaces. and
Because Wirsbo - pePEX temperature, then blows it the comfort preferences of the people using them. Research
distributes heat through the through ductwork into the consistently shows that radiant heating is the most
floor, no wall or ceiling heat space to be heated. It's a comfortable form of heat.
ducts or vents are needed. costly and inefficient
Eliminating hot -air drafts process: The air must be
greatly reduces the overheated to compensate
circulation of dust. dirt, for heat lost in moving it
pollens and other airborne from the power source to
substances. the space where it is needed.
What's more. since hot air
The true beauty of wood. rises, heat collects at the
marble and tile floors ceiling while cold air pushes
1
remains visible — the need down to floor level —
to hide them under a rug where the human body
because the floor is too cold senses thermal comfort.
to walk on is forever
eliminated. Wall spaces are U eat in a radiant hydronic 0
cleaner and less cluttered. i { system is transferred
Draperies can be hung and from the Wirsbo -pePEX
furniture arranged without tubing directly to surfaces
compromises based on the within the space to be
location of heating vents. heated. Radiant heating
completely eliminates the -- 32
n a Wirsbo -pePEX hot -air draft created by
hydronic underfloor heat forced air systems.
distribution system,
temperature and comfort In rooms heated with a t^y� ;�
can be controlled on a Wirsbo - pePEX hydronic F ` ,.
room -by -room basis. system, people typically ' 79" -- -
, 7 Individual zone and system find they are comfortable . t _ _ '
controls replace the single with the thermostat set as \,
centralized thermostat low as 65 °F. That saves t t 6; ' i
common to conventional energy. And because heat
Mil _
heating systems, thus in a hydronic underfloor
improving comfort while system is delivered directly, 1
providing energy savings. low- temperature power Forced Air Healing Radiant Floor Heating
i sources — including water Hear distribution in a forced -air Heat distribution in a radiant
source heat extractors, solar, system is inevitably uneven, hot floor system is even and consistent
I
geothermal and industrial spots occur near the register and throughout the room, there are no
waste energy converters — at the ceiling, while cold spots drafts, no hot spots, no cold sots.
can be employed effectively. form at the floor
3
1
Comfort Without Compromise
1
1
he human body Is a Farthest away from the the height of a normal adult at floor level. the room must
I h�dronu heating heart are the feet. the body's — meeting and satisfying be overheated at the level of
s\ stem It circulates heat most sensiti� e heat sensors. the comfort needs of the feet the heart. If the system is
from a central source by The last to receive heat. and the heart. regulated to keep the heart
distributing a heated liquid they are the first to comfortable, the feet sense a
I through a network of piping recognize the discomfort of istribution is the key. colder environment. Either
(the blood system) The first a cold environment. The D Forced air systems are way, the body perceives
priority of the system is to goal of a heat distribution unable to match the itself to be uncomfortable.
I maintain the temperature at system (as illustrated in the distribution profile of the
the core (the heart). That Ideal Heating Curves Ideal Heating Curve due to
need met, heat is sent below) is to provide one of the basic principles
I toward the extremities. consistent temperatures of thermodynamics: Hot air
from the floor to just above rises. To put sufficient heat
1 'f : - t ' �° DEGREES FAHRENHEIT
Ideal
He vting Curl(
't, ` t. x
\ Wirsbo Radiant Floor
Heating Curve
• • 65` • • . • •
I i .. NORMAL
THERMOSTAT
HEIGHT
4-
ft
y:
! Forced Air
1 Heating Curve
t
1
50° ° ° 75° 80° % DEGREES FAHRENHEIT
1 Ideal Heating Curve Radiant Floor Heating Forced Air Heating
For optimum hear distribution, By delivering heat almost Because hot air rises, more heat
temperature should he relatively precisely according to the Ideal must be forced into the room to
constant from floor -level to just Heating Curve, a Wirsbo-pePEX maintain a comfortable
I about the height of a normal adult system assures that all of the hear temperature at floor level. The
produced contributes to the heat represented by the shaded
comfort of the room's occupants. area at right is excess—wasted
I People literally "feel" more energy.
comfortable.
0eo -ooeo two oeseaoct Dy T Bedford ('The Warmth FaCtor in Comfort at Work') FA Chemko ('The Eflecls of the Floor Temperatures of Floor Surface and the
I A■■ or. Tne,' a Sensa000ro and the Skin Temperature of the Feet'). and PO Fenger ("Thermal Comfort').
4
1.
Ho^ es A Design For Any -;
Type Of Installation
Wirsbo - pePEX underfloor
Apa -e' s heat distribution systems
can be installed in an) type ,
of floor and in and kind of
^ structure.
1
Styr; L -
_`
, , 1
Nurseries �.-- 4"l f , -
Factories .° i - '. ,. _ .4
Wood With Aluminum Plates Wood With Poured Floors
Ware n. JSeS In residential and other forms of Using Wirsbo s PEXgrid plastic
construction using suspended track system or construction '
wood floor construction. Wirsbo- staples. Wirsbo -pePEX is fastened
Scrip:, c pePEX tubing is run within the to the surface of the wooden sub -
subflooring joists To marimi:e flooring before the addition of a
I
heat distribution uniformir%. the poured floor underlarment
tubing rests in grooved aluminum
Daycare
heat emission places that absorb
I
and radiate heat from the system •
into the floor above
Hospita is
Pr;so-s •
—17---111.1-41111"1111111111— — — - -. , 1
Gymnasiums i # i
l ' a ls"'" ? 61 111 ' 441° . .
.. _ -
Coliseums F - -
Clubhouses
Concrete Slab Floors Concrete With Pound Floors
1 For basements. factories, For the upper floors of buildings
warehouses and other slab -on- using pre - stressed floor systems.
Kennels grade installations, Wirsbo -pePEX Wirsbo -pePEX tubing is placed
tubing is tied to the reinforcing above the concrete, after which a I
mesh before the slab is poured. laver of lightweight concrete is
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comes complete with all the Wale' Temp 95 -160 90 -140 °F 85 -110 90.132°: floors with extreme:), favorable
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p Surface Temp 8 P`, 75 -85rF 70 -85`F 35 -4°_ -F installer undernea'n we s. in
and accessories — including
Heat Output 20-258:.," SZ r 15 -30BL 'r SQ 71 10- 20E;iA sa " 80- 153B :o;r sa 6 closes on stairs or in locations
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Temp Drop 10 -20 10 -20'F 1C -20'F 20 -35`F where figure contruct7on is like'y
In addition. V■ irsbo -pePEX -
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telestats (yak e actuators) to Loop Length 150.3757, 250- 40011 300 -4506 150 -24071 holes or construction damage.
meter and regulate each heat
Tube or Cente 6-t.?' t2 1s 12 24 8-10.
zone according to \\ irsho's 2 Wi'soo -peoEX tieing is Designed
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- Wnere a combination 01 adverse 1
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1 5925 148th Street West • Apple Valley, Minnesota 55124
WIRSBO CANADA 580 Park Street • Regina, Saskatchewan S4N 5A9
City Council Meeting - February 22, 1993 •1
some money even though we have to spend some. Next item.
INTERPRETATION OF CONDITIONAL USE PERMIT VALIDITY, CUP 188 -11 FOR A CONTRACTOR'S
YARD, 1700 FLYING CLOUD DRIVE, JEFF CARSON.
Sharmin Al -Jaff: In 1988 the City Council approved a contractors yard by
approving a conditional use permit application. The contractors yard was
supposed to have a building...parking area, a driveway that would lead into the
building. The existing buildings on the site were proposed to be demolished and
removed off the site. There were 20 conditions attached to your report that
were the conditions of approval. One day before the permit was to expire, the
applicant applied for a building permit. Staff issued the permit. However...
construction or development taking place on site. The zoning ordinance reads,
if substantial construction has not taken place within one year of the date on
which the conditional use permit was granted, the permit is void. Over the past
two years staff has not noticed any construction taking place and we are
interpretting the ordinance to read as the conditional use permit as void. The
applicant is contesting our interpretation and is in front of you today to
get...interpretation. We are recommending that you find the conditional use
permit as void. If you have any questions regarding the inspections, with us
today is Building Official, Steve Kirchman. He'll be here to answer any
questions you might have. Thank you.
Mayor Chmiel: Thank you Sharmin. Is the applicant, Jeff Carson here?
Jeff Carson: Yes, your Honor. Mr. Mayor, Council members. My name is Jeff '
Carson. I represent the applicant, Mr. Harry Lindbery who is present tonight. f_1
Mr. Lindbery did indeed, I should also indicate that we were before the Board of
Appeals and Adjustments from 6:30 to 7:30 and I will be repeating myself and I
apologize to Councilmember Senn. In case you don't know, they recommended the
interpretation as Sharmin has indicated. That the permit be voided. Mr.
Lindbery did receive his conditional use permit and I trust that the packet of
information is before the City Council that was submitted by the applicant,
which includes a brief memo and some exhibits. It is our underlying contention
that the conditional use, that the applicant has indeed used the premises since
1988 as a contractors yard. And I put the definition of a contractors yard in
the first page of my memo to show that the definition of a contractors yard does
not require a building at all. In fact the use of the property, as Mr. Lindbery
has made it since 1988, is exactly that. Storing of materials for construction,
contracting. That's his business. It is true that the original application
contemplated a building and although we debated at the Board whether or not
without a building this application or this applicant could construe or would be
permitted to say that he was operating his property lawfully all these years. A
literal reading of the conditional use permit doesn't state that you have to
have this building. That is this property, which is approximately 40 acres,
could be used without a building. Nevertheless, the applicant, and I outline. I
don't think I'll go through it again in all the detail. He did intend to build
a building, and to that end he obtained a building permit, as staff indicates
approximately a year after the issuance of the conditional use permit. A dispute
arose and we're having a hard time getting a handle on that, or pinning it down.
But in my materials I submitted to you, I gave you a packet of information about
the floor heating. It's a heating system if you will that the applicant wanted
to put in this building. The idea was, and he obtained the building permit and
8 1
City Council Meeting - February 22, 1993
II
he bought the shell of the building in 1989, and he's spent $36,000.00 doing
1 that. Obviously intending to put that building on the property. He got into a
dispute with the building official, which is at issue about that but he did.
That's his statement. Over the type of heating to use. He wanted to put the
1 tubular heating in the floor and pour the cement. Probably at the time state -
of- the -art. The building official told Mr. Lindbery, no. I'm not familiar with
it. You can't do it. That stalled the project and it never frankly got back on
t track. There was a period of time during this process where Mr. Lindbery was
literally out of, physically unable to move forward personally himself on the
project. He crushed his leg and was out of active participation for a year on
the building project. So these periods of time came and went and they are
' significant periods of time and that was my reading of the Board of Appeals was,
too much time has gone by. You could have and should have come to the City a
long time ago. You didn't. Why didn't you, and my answer to that was
-Y everything in hindsight is always clearer and it's better and certainly I agree.
He could have and should have come to the city the moment that a dispute arose
about anything. I would point out that the staff was actively, at least working
on this project over 2 years after the issuance of the conditional use permit.
11
The reason I raise that is that the interpretation that the staff is making is
substantial completion of the building after one year was not met. Therefore,
you voided your permit and that's that. In the exhibits that I handed you,
1 there is activity from the Building Department, and I would refer you to
exhibits 6, 9 and 10 I believe. What it shows is that the Planning Department
is, at that time dealing with the permit. In fact Exhibit 10 I believe is the
' cover sheet of the conditional use permit itself. And then the right lower
corner it indicates somebody's doing some research on an issue as of 10/23/90.
Significantly greater than 2 years after the issuance of the conditional use
permit. My point being that I feel, based on what happened in 1992, that that's
simply the convenient, if you will, answer today. That is, well let's see.
What's happened here. Time has elapsed. You're out of business. I would also
point out that in 1989, when the City went through the process of removing
contractors yards from the Zone A2, which is what we are, they had appropriate
hearings and those hearings were predicated by published notice but, and I
believe it's Exhibit 11, is a front page of a Planning Commission Minutes where
' one of the Commissioners looked around the room. This was the hearing to decide
on what recommendation the Planning Commission was going to pass to the Council.
There's no contractors in the audience. There's nobody that's a holder of a
conditional use permit if you will, and the question was raised. Why isn't
1 anybody here? Were they notified? The answer is no. You don't have to notify
people if you're changing the zoning. You just have to publish. Technically
that's probably correct. But the other portion went on to say, what about these
' people who are operating today? And the answer was, they're non- conforming and
therefore they're not going to be effected adversely by this action. Mr -.
Lindbery was not notified of the change in the zoning and he was not notified by
staff frankly that he was running out of time to complete his project at any
point in time. Then in the summer of 1992 what happened was,-part of his
contractors yard activities involved the storage of large and rather unsightly
construction box units that he would rent out to other contractors to store
' their equipment in on site. And instead of putting them down, around behind the
berm on his property, which he now knows he should have, he•put them up closer
to the road and they could be seen. So what happened was, staff saw them.
Wrote to Mr. Lindbery. He wasn't responsive and that has led.to the presently
pending criminal charges in District Court, which we are having to address. He
1 9
1
City Council Meeting - February 22, 1993 _I
has since corrected the problem, by his perception at least, and put the boxes
that he uses in his business behind what we consider to be a berm. An adequate
berm. In other words, you can't see them from the road and that's the problem
here. The upshot of it of course was, staff was looking at this application and
at the whole property as a whole. In 1992 they determined that this violation
or this voidance of the permit had existed and thus reached that conclusion. Now
the applicant can't, that takes us up to about mid -1992. That is from that
point forward until today we're in an active dispute if you will, including the
criminal charges. The point was made at the Board of Appeals that a lot of time
seems to have elapsed between the issuance of the permit and let's say mid -1992.
And I don't disagree. There's a reason for what happened. It may not be
adequate in the minds of everyone but it's what really happened in the real
world in this case. He didn't get the building done. He got into the dispute
with the Building Inspector and he didn't follow through and he didn't come to
the City and ask for an answer as to what he was going to be required to do.
And here we sit. The zoning has changed. We're told he's not in a
non - conforming status. He wasn't at the meeting where the zoning changed so he
can't be in a position to do anything with this property other than use as
agricultural, if indeed the use as a contractors yard is prohibited. It is our
hope that you will, given all the circumstances, permit Mr. Lindbery to continue
his operation by conditional use permit. He would like indeed to construct the
building. As I indicated, he's got more than $36,000.00 in actual monies spent
for the permit and the shell and the MnDot approval process. He's ready,
willing and able to complete the project if he can get the appropriate approvals
from city staff, which we believe we can do. And by denying him his opportunity ,
to go forward, you're simply saying that the land is not going to be used
anymore by this individual for the work that he does, which is operate a
contractors yard. A couple of points were argued, debated at the hearing.
Mr. Lindbery has used the property during this period of time continuously as a
contractors yard. Obviously he did not build the building and so those parts of
permit that relate to construction haven't been met. That also was a
finding at the hearing of the Board. I would hope that you would consider this.
There's some equities here. There's some technical points. There's some
questions about what does the Code mean, and keep in mind that he wasn't given a
public hearing. He wasn't told that his conditional use permit is in violation
or any of that. It was just during this criminal process he was advised that
it's void. It doesn't exist. And I'd like to think that given the history and
the relative difficulty of interpretting exactly what that permit means, I think
there are differences one might bring to the interpretation of the law as it
relates to this permit and I would hope that you give Mr. Lindbery the advantage
at least to make it right. I don't see that the city is any the worse off if he
does. Clearly he is going to be in serious economic difficulties if he's told
he has to vacate the use of that property. I thank you for hearing us, a second
time. If I can answer any questions, I'd be glad to.
Mayor Chmiel: Okay. Are there any questions? Mark, do you have any questions
at this time? Sitting on the Zoning Appeals.
Councilman Senn: Basically at zoning appeals, my tact I think was a little '
different than staff's and City Attorney's I guess. I have a hard time making
the connection between the conditional use permit and the argument that no
construction has occurred on a building. The reason I have that trouble is that
in the conditional use permit, the conditional use permit lacks any reference to
10 -
1
City Council Meeting - February 22, 1993
a site plan and lacks any reference to a building. Other than some vague ones
such as a building must be sprinklered. That type of thing. Yet I don't have
much sympathy for the applicant because what I see as a conditional use permit,
even though contractors yards activities may be very vague and arguable for many
hours, conditional use permit I don't feel is. It says the conditional use
permit based on Exhibit A, the condition on Exhibit A, and any violations of the
terms of the permit means that it's terminated. And basically went through the
conditions, the 20 conditions of which a majority have never been met.
Forgetting whether building is a reference point or not a reference point. And
I don't have a problem at all denying this permit on the basis that no
construction has occurred. Also, that the applicant is in violation of a
majority of the conditions of the conditional use permit. I do have a hard time
basing some form of denial back on whether a building exists or does not exist.
I guess that's why it ended up here before us because I have that problem. Again
I would strongly recommend denial but I think we ought to call it for the
reasons it is, rather than the reasons that don't really exist in any
documentation because quite honestly I think the applicant concurs that
documentation on this is pretty poor.
Mayor Chmiel: Yeah, in looking through some of this as well. The conditional
use so stipulates or even implies. I'm not sure what part of the law leans
towards that but...conditional use shall be in compliance within one year from
date of issuance, and if you're not, your compliance from that timeframe, that
permit is void. And construction of a building had not taken place. Whether
it's so stipulated within there or not, that was still part I think of the
conditions as it indicates.
Councilman Senn: Don, I guess in.
Mayor Chmiel: I understand you're not. Yeah, right. No, I understand that.
I'm just clarifying that for the record more than anything. Okay. Michael, do
you have anything?
Councilman Mason: Well, Mr. Carson certainly presents some compelling reasons
but I'm confused as to why all the foot dragging on the applicant's part and why
things just haven't happened. I guess I can only speak from my experience but
if something goes wrong, it's just common nature for me to go up one step higher
and find out what the problem is and what can be done about it. It seems to me
if that isn't done, I'm not, it doesn't set with me. 1 don't understand.
Jeff Carson: Not having been there myself I can't, but let me do this if you
would permit this. Mr. Lindbery is here and he does have, at least a response
to that. It may not satisfy you but it does involve issues relating to his
attempts to deal with plumbing and the things that he was dealing with. If
you'd permit him to just address you for a couple of minutes. Do you want to do
that Harry? Would you permit that Mr. Mayor? Thank you.
Harry Lindbery: Well, where we run into one problem is we wanted to, we put in
the pileasters for the building, the columns where the beams. We're building a
building with no posts. It's 70 foot wide and 100 feet long. And we wanted to
take the building engineer said we should take from these columns, run rerod
into the floor. That way, if you get stress on the top of the building, because
due to it's, on a shape like this, it wouldn't push out and push these columns
11
City Council Meeting - February 22, 1993 .11 '
out and that's why if they're tied into the floor. And we had a problem with
the plumbing man. He wanted us to put in two separate systems as far as
drainage from the building. One from the sanitary where we would have a toilet
in a lunchroom for the fellows. And then another one for the floor drain. So
we told him we would. We went and bought the flammable waste. We had that
already but we wanted to put it inside the building and then we had it there and
wanted to hook it up. He said, no. You can't hook it up. You've got to put it
outside the building. So we took and put it outside. Then we got a concrete
sawing company to bore a hole through the footing around the building and we put
it on the outside. Then we says, can we hook up the floor drains to it now? He
says, no. Now you have to go down to the State plumbing department and get
their okay. So the plumber I had hired, and myself, we went down there. The
State plumbing man, he said geez. He says, how come you want it this way
outside? He said, when you'd have about 50% of the time that would be froze up
because he says we've got winters here and he says, I'll never approve that. He
says, put it on the inside. And I says, well that's the way we wanted it. So
then, he changed the plan. Then we went back to the city man. We asked him and
we wanted to put radiant heat in the floor. He says he isn't familiar with
that. He says put unit heaters up in the ceiling. And we says, they aren't as
efficient and this here, when you heat the floor, it stays heat because if you
open the door, the floor's warm. Your air rushes out. When you close the door,
your floor is still warm. And I think you have a thing on that radiant heat.
Well, what he didn't, he says he wasn't familiar with it. He wouldn't allow it.
Then in 1991 I did have an accident. I was on a loader, front end loader and
it's got a vinyl seat. And I slipped and hit a lever and I got my leg between
some framework on the loader and it crushed it. My insurance company doctor, he
wanted to whack it off below the knee. That's where it came, the bone come out
both sides and I took and got a specialist and I went with him. He put a rod, r
it was about 15 inches long and about the size of your finger and he cut both
sides open and he put it all back together again and he made me stay off of it.
So that kind of tied up the building. But we had drivers going in there and
going out of there with different supplies during this time so we didn't abandon
it. I was laid up for a while and our other fellows, they didn't want to go
ahead and stick the building up but we've had the building all bought. All paid
for and everything and as soon as the frost gets out of the ground, I'd like to
take and put my rerod in the floor. First put the plumbing in. Put the rerod.
Pour it and then so it would hold the columns in and then put the structure up.
And it's out on 212 highway. We don't use any city streets or anything like
that so I mean, I don't think we've ever bothered anybody. '
Mayor Chmiel: Thank you. Colleen, do you have any?
Councilwoman Dockendorf: I guess I'd don't want to be completely blunt about '
this but I'm having trouble buying some of the arguments Mr. Carson's put forth
on, particularly when you say we've never informed of the zoning change. I
guess as a business person, you need to keep up on city ordinances, particularly
when you own a piece of land and ignorance doesn't prove innocence. However, I
do understand the complications in building. But it kind of sounds like you're
complaining because you got caught. 1
Jeff Carson: No. If I may respond to that Mr. Mayor. I'm complaining I guess,
if that's what I'm doing, about the timing and the rationale for it. The reason
this really came up was the units that he was storing for other contractors that
12 1
1
City Council Meeting - February 22, 1993
he rented. The City continued to deal with him really long after the 2 year
' period was up. There wasn't any time clock on him at that point. In October of
'90, they were still dealing with this project. Had he been informed, had the
contractors, the people that had contractors yards been informed that they no
' longer would have been able to operate a contractors yard in an A2 zone
following the passage of an ordinance, I think it would have made a difference
is what I'm saying. I'm not saying that, well. I'm saying that there can't be
' that many contractors yards in the city and it would seem to me appropriate to
notify those people with contractors yards in those zones that are being zoned
out, that that's under consideration. Now the answer to that was, when one of
the Planning Commissions addressed it, was the people who are operating are
' non - conforming. They won't be effected by the change and so there's no need to
bring them in. Had Mr. Lindbery been informed that he's about to lose his right
or he has a certain period of time after which he cannot operate his yard, any
' of that, I submit that he would have resolved it right away or got the
extension. Whatever the code would have required at the time. What's happened
here is that for reasons unrelated frankly, he's now being told that, by the
way, your CUP is void and I think that, yeah. You can look at it one way and
' you can look at it another way but I'm trying to bring a sense of fairness to
it. I know the city rezoned that property for a reason. They don't want
contractors yards in the A2 zone anymore. That's the underlying message and
' that's the city's priviledge. But I think as it effects adversely people who
are there and operating, there has to be some kind of a give and take. That's
why, if it seems like complaining, perhaps it is. But I think this could have
' happened differently and we wouldn't be here.
Mayor Chmiel: Any other questions? Richard.
I Councilman Wing: Mr. Carson, just a beginning question. Are there other
employees involved here? Does he have a staff? Is this a company?
' Jeff Carson: He has employees, yes. I don't know how many but he does have
other employees in this business.
' Councilman Wing: You're not alone on this? Well this was permitted in 1988 and
I don't know what's changed since then, except the zoning. The agricultural
zoning. In 1992 terms, what does a contractors yard mean or not mean to the
city? And specifically in this area. I guess the first thing I'd like to
' address is just a concern for your client Mr. Lindbery in that the city wants to
get away from contractors yards. They're not in the best interest for the city.
They haven't been in the best interest of the city and they've been moved out
' rather effectively over the last few, well since I've been here. And one of the
real painful ones was the Carlson property out on the west end of the city where
he's had all sorts of problems and just as he gets everything resolved and gets
' this building up, residential's coming in and it's costly residential and
they're simply not going to tolerate this type of land use. So the pressure's
going to be put on. The complaints are going to come up and my concern for you
is that you're going to get, if this was granted, you'll get all your buildings
' up and everything established and spend these dollars and all of a sudden in
will come a plat for a residential area of $400,000.00 homes. They're going to
take one look at you and do everything in their power to start moving you out.
And then you're going to wind up an island down there and my concern is for your
3 own personal finances in the future. If it's granted and if the dollars are
1 13
City Council Meeting - February 22, 1993
spent to put this in, is it in fact in your best interest, even in the short
term, if suddenly residential moves in down there and it becomes a very
unattractive land use that simply won't be tolerated. So I have that concern by
approving this, and having you invest this money on this contractors yard, you
may be right on the edge of development that just won't tolerate it and the pain
and the hurt that you could be caused, I just wanted to bring that up as an
issue here because I think it's significant for your own thinking and planning.
But at any rate, the permit back in 1988, there's considerable dollars invested
here. $1,200.00 for a permit and $3,500.00 for a building and Mnpot and there's
been a lot happening here and I think there's an awful lot of investment in this
expired permit if you will. And although it's maybe not the direction we want to
go, I don't know if the use and the conflict down there has changed since '88 to
'92 and this is Mr. Lindbery's business and it apparently meets the use and
there's a real loss for him if this isn't continued. So I see the permit
continuation as a real minor issue and a real minor variance. I see the
conditions of the permit as the issue here and resolving those. So my
preference here would be to give an extension, and I'm going to just pick an
arbitrary number of 6 months. Not that's got no validity any more than 2 months
or 1 year but an extension of 6 months which allows staff, number one to review
the conditions for being reasonable and is it still the direction we want to go,
and either changing those downward or leaving them. And then have 6 months to
comply with those or it expires without any further discussion. I think that
might be fair to resolve the issue and the conditions as a compromise here
because there's too much money invested and if Mr. Lindbery wants to take the
risk of that investment with what's changing down there, I won't address that.
That's his business but I have no problem with a continuation to allow staff to
review the conditions, their reasonableness and then allow compliance of fairly
accelerated way...on the other hand it doesn't throw the dollars in this permit
that were expended over the years. And if there is a conflict, the city and
staff and any inspections, we've gone over this time and time again where the
former inspections group and the former planning group didn't follow through and
things weren't documented and so there's some gray areas here that I'm not
willing to absorb so I would prefer to give Mr. Lindbery the benefit of the
doubt. But it would have to comply with the conditions and that would have to
be in an accelerated manner. 1
Harry Lindbery: May I ask a question?
Mayor Chmiei: Yes, if you'd like to come up to the microphone. '
Harry Lindbery: Would that be for the building to be totally complete because
we have about 3 -4 feet of frost and that won't be out of there until probably
about May 15th.
Councilman Wing: I would move that 6 months after start of construction. Paul,
I won't get into this. I don't know. It's just the numbers are arbitrary.
Harry Lindbery: Then there's no problem. After the frost was out, 6 months.
Councilman Wing: That could be a point.
Harry Lindbery: Sure, because no problem with that.
14
City Council Meeting - February 22, 1993
Councilman Wing: I'm not allowing to allow continuation of this unless it's
complied with. And it's complied with in an accelerated method but I won't go
beyond that. I'd have to allow staff and Council to address that suggestion.
' Harry Lindbery: Well I just wanted to put out the thing. Do you have any
objection to our radiant heat?
I Councilman Wing: No. That's what I've got in my house.
Harry Lindbery: Well, your plumbing man wouldn't let us put it in.
' Councilman Wing: Well I don't know anything about that. Maybe there were
reasons. I can't address that. ...the points are well taken. He asks the
questions that can be handled elsewhere. I'm just bringing up the big issues
' here.
Jeff Carson: I think he misunderstands the posture of the question at this
point though.
Councilman Wing: I'm trying to compromise on his...
' Jeff Carson: Yeah, and I think he's obviously willing to do that and that's
really all we can ask of the city.
' Councilman Wing: I have one concern is that I saw Paul start to, he was leaning
forward in his chair. If he was going to confront me here, I wanted it done
now.
' Paul Krauss: Well, don't take it as a confrontation. But we're here tonight
because of an interpretation issue. We've interpretted this to have never
' occurred, therefore it's void. And the Board of Adjustments was looking to act
on that and that's the question before you tonight. In taking the action that
you've outlined, by granting an extension of something that we think is void,
you've therefore said it's still valid. And that's an important point. Now you
' can do that, although I think the ordinance provides that that has to come
through the Planning Commission. And then for action by you. But I guess we're
real concerned though with some of the fundamental issues here. You know we're
' often accused of having large amounts of malice and forethought to any number of
individuals around town when you know we usually respond to an issue that crops
up and the issue in this case was that there was a bunch of trailers all over
' the front of the lot, and we couldn't figure out why. And we had letters that
we sent out to the owner, which were refused and we sent them certified. They
sent back to us. We knew that a building had been started years ago and was
never finished. We knew that the conditions were never satisfied and
' apparently, according to the testimony by the attorney tonight, the applicant
and his attorney are under the impression that they can go ahead and do anything
that they classify as a contractors yard without satisfying the conditions. We
' take some exception to some of those assertions. You know when you pass
something, a package of conditions, whether or not it was before our watch here,
as in this case, or whether or not we wrote the staff report, we have an
obligation to make sure those things are fulfilled. And when we went out there,
we found out that just about nothing was fulfilled. You know yes, there are a
whole different set of issues that I don't think are necessarily appropriate
' 15
City Council Meeting - February 22, 1993
tonight, as to what the Planning Commission and you might ultimately want to do
with that area. And yes, the thinking has changed an awful lot since the mid
80's when contractors yards were put down there. We have results of that policy [li
with the cold storage, metal warehouse buildings that were gouged into the hill.
I mean there's a lot of odd ball uses down there. I guess I'd defer to the City
Attorney, but if in fact you're looking at granting some sort of an extension,
I think that you have to be aware of the implications, an extension to what.
And I think you have to probably procedurally do it a little differently. 1
Elliott Knetsch: I don't think at this time you have the power to grant an
extension. I think what you're saying Dick is that you had a valid permit. He
made some use and made some purchases based on that permit, so that constitutes
use under our ordinance and that never really lapsed. So he in effect does have
a permit and now we should look at what are reasonable conditions on the permit.
That's I guess what I hear you saying and if that's what you're saying, that's
fine. I mean all we're asking for is staff and the City Attorney's offices, if
you don't agree with staff's interpretation, then the permit is still in
existence and at that point you can take action to revoke the permit for non-
compliance with the terms. Or you can work with the applicant, given the fact
that time has changed and their indicated willingness to work with you and
hammer out some new conditions that are satisfactory to both sides.
Councilman Wing: It just amazes me when you're educated how smoothly you can
explain these things. That's where, there's enough expenditure here that I
consider him to have the permit. And I'm comfortable with that. But I'll be
real blunt and say, put up or get out. And there's the rules. You haven't
complied. You either comply or you're out of here. It's black and white. And
then it's a big, I consider this to have been a permit. There has been
expenditures made, and it never expired. I guess, is that the proper wording
for my statement? The conditions of the conditional use, they haven't been
complied wit. I guess that would be my issue tonight and I would expect
immediate compliance. Total compliance or, in that case then we get into the
non - compliance issue. Then what happens?
Elliott Knetsch: Well, if the permit's there and it's not being complied with,
then you have the option of having a hearing to revoke the permit for non-
compliance or, if the applicant agrees to new conditions, you can put new
conditions on.
Councilman Wing: So then my 6 months would come in. 6 month restriction on
compliance. Is that right?
Elliott Knetsch: I guess I think that could be appropriate if you treat it as, '
in effect treat this as a hearing on whether or not to revoke the permit and say
well you haven't done all these things. We could revoke your permit but we're
going to take a less drastic step and say, we're going to let you keep the
permit as long as you do these things within a certain time. I think you could
do that.
Councilman Wing: Well I don't want to belabor this any more. That's my
position and I'll...
1
16 1
1
City Council Meeting - February 22, 1993
Mayor Chmiel: Okay, thank you. I too have been looking at this rather closely
and I see the time to extend the permit has really expired. In lieu of all the
letters that were sent by the city and not received, nor accepted, I judge that
as a portion that does bother me some. It should have been addressed at that
' given time.
Jeff Carson: Your Honor, I might add. Those letters related to a violation of
the permit.
Mayor Chmiel: But nothing was answered.
' Jeff Carson: No, I just, the purpose of the letters was not to tell him to get
going. It was to tell him that something that he's doing with the property is
in violation.
Mayor Chmiel: And that there were several things in accordance with the Exhibit
A contained within that as well that had not been complied with. It seems like
' there's nothing that has worked through this always straight through. I feel
uncomfortable with it. I don't like to do things or business that way, nor do I
expect people to do business that way back to the city. So it'd be my position
at this time to request a motion in regard to this proposal. Can I have a
' motion from the floor: Or discussion.
Councilman Mason: Could I discuss for a moment before we make a motion?
' Mayor Chmiel: Sure.
' Councilman Mason: I share some of Councilman Wing's concerns about the
applicant. However, hearing what Councilman Senn said earlier about the fact
that we have a list of 20 items that need to be complied with and my
understanding is that very few of them have in fact been complied with. And I
guess if, I personally would like to hear from Mr. Kirchman for a moment or two
about that. Because my feeling is that has more bearing on this right now. If
none of this stuff has been complied with, my feeling is to hold the public
' hearing to revoke the permit and see how that comes out. Which is what we have
to do, right?
' Elliott Knetsch: Staff's taken a position. This is sort of technical...and I
think Mark and I kind of crossed wires on it at the Board of Adjustments and
Appeals too. We're saying, as staff, that the permit has either, is void per no
construction within one year. Or alternatively, that it expired because there
was no use made of the property pursuant to the permit. So the use was
discontinued. Therefore the permit expired. That's what staff has, that's
staff's position. That's what we've informed the applicant. So under that line
' of reasoning, whether or not he complies with the 20 conditions in the permit is
not relevant because the permit is, we're not saying he's violated the permit.
We're saying the permit's gone. However, if you would accept the applicant's
position that they did use the property. There were deliveries or whatever use
constituted a contractors yard, and the start of the building and so forth, then
you would say no. We don't agree with staff. We think the permit is still
there. Then the question is, what do we do with the permit. Do we move to
revoke it for not complying with the conditions? Or do we look to give them
additional time to comply?
' 17
City Council Meeting - February 22, 1993
•
Councilman Senn: Can I ask a question?
Mayor Chmiel: Sure.
'
Councilman Senn: If I'm understanding you right then, the action tonight can
only relate to whether a permit exists or doesn't exist? tII
Elliott Knetsch: Yes.
Councilman Senn: Okay. And the action of whether the thing is void because of
non - compliance cannot be addressed tonight?
Elliott Knetsch: Yes. That's right. We should address that separately. If we
get to the point where there is a permit, let's consider revoking it and we
should hold a public hearing on that issue. And that would discuss whether or
not the terms were complied with or not.
Councilman Senn: Well I'd make a motion then that we believe the permit is
still there and that we schedule a public hearing for revocation of the, or to '
consider revocation of the CUP for non - compliance.
Councilman Wing: I'll second that because it's my position. For discussion at
any rate.
Mayor Chmiel: It's been moved and seconded. Any other discussion?
Councilman Mason: Staff is saying nothing's happened within a year. And you're
representing Mr. Lindbery saying things have happened?
Jeff Carson: Yes. L '
Councilman Mason: That's essentially what's going on right now.
Jeff Carson: Work that would be defined under the contractors yard, definition
in your code, yes.
Steve Kirchman: I might, if I may?
Councilman Mason: Please. '
Steve Kirchman: I can maybe shed a little bit of light on that. I made my last
inspection, a building inspection on October 22nd of 1990 and I asked that Mr.
Lindbery come in and apply for a heating permit and a plumbing permit and then
he could go ahead and continue with what he wanted to do on the building. I
asked that he meet with the Planning Department and Building Department to
clarify some issues. He didn't come in so I periodically made trips out to the
site to make sure that there was no construction activity on the building
continuing. That was my primary purpose. But during those visits, at no time
did I see any type of activity that could be construed as being used as a
contractors yard taking place, until I made a note to the effect that the
containers and the round concrete pipe were on the site. And that date was,
well one second. Let me find that inspection. Okay, that date was.
18
1
City Council Meeting - February 22, 1993
II
Sharmin Al -Jaff: June 8th of '92.
II Steve Kirchman: Okay, June 8th of '92. So at no time before that, between
10/22/91 and that date when I noticed those, was there any construction activity
or any activity taking place that could be construed as a contractors yard. Now,
I I only went out to the site maybe 2 times a year. It's way down there. I'd
stop when I had time so I wouldn't have seen if there was any activity at all
but there were no new structures. Nothing gone. No tracks out at the area so,
II and that's all I really have to say as far as the conditional use permit.
Councilman Senn: I don't doubt at all what Steve's saying. In fact I think
II he's probably 100% right. Again, I think our basic problem is in the original
drafting documentation of the CUP and the lack of any action for 3 years. I
think it's a lot cleaner. A lot simpler to simply get past that issue and say
it still exists. Then go, the real issue is the fact that I don't care what
I excuse in the world you come up with, I can't figure out one that justifies 4 to
5 years of no action on a CUP with 20 very definitive conditions which have not
been even, I mean I can maybe find a couple that have been complied with out of
I 20. To me, from a city's position, that's a lot more cleaner arguments than
getting into a lot of semantics, especially when you've got a poorly written
CUP in the first place and even poorer documentation over 3 years to back it up.
II Councilman Wing: I'll just tack onto Mark that I think it gives the applicant
time to think about the fact that maybe 1988 was a good time to invest dollars
down there. Maybe 1992 is not as good a year to invest dollars down there
I considering what may be coming his direction. Or, I don't know what date it is.
1993.
I Jeff Carson: If I may Your Honor, one of the problems of course is that the
hearing itself would simply be a pretext. I mean the decision about everybody's
feeling as to what has happened or not happened with respect to certain items on
that list is pretty clear. You'll do what you'll do but it seems that
II everybody's made up their mind about that issue and I hope that the applicant
has some opportunity. I liked what Councilmember Wing was saying that, maybe
there's something, some common ground here that if the applicant and staff got
I together and who knows what those conditions would be. They might be more
stringent. It might be less energenic a project. There's a lot of
possibilities but when I say pretext, I mean it's simply, you're going to have a
I hearing so that you have a hearing. Simply do what you're feeling now, it
seems.
Councilman Wing: I think the items need to be reviewed. Maybe the building
I isn't needed. Maybe it's use has changed a little bit from what you decided.
Maybe it's going to be an attractive contractors yard, but you're going to have
to put up or get out. That's my position.
II Jeff Carson: Well, that's not unfair.
I Councilman Wing: I'm supporting you.
Jeff Carson: That's not unfair. I have no problem with that. If the City says
to the applicant, you've got this much time to do this much work to stay in
II business but it never, that was never said before. You can say what you will.
II 19
II
City Council Meeting - February 22, 1993
You can say that Mr. Lindbery is difficult and all of that but I really don't
think he ever was of the mindset that this was what was going to happen.
Mayor Chmiel: I'd like to call the question.
Councilman Senn moved, Councilman Mason seconded that the City Council finds the cli
Conditional Use Permit 188 -11 for a contractors yard on property located at 1700
Flying Cloud Drive is still valid and to schedule a public hearing to consider
revocation of CUP 188 -11 for non - compliance. All voted in favor except
Councilwoman Dockendorf who opposed and the motion carried with a vote of 4
to 1.
Jeff Carson: Thank you for your time. What then will happen?
Mayor Chmiel: This will get scheduled and staff will get in contact with you
and let you know when this comes back before us.
Jeff Carson: Thank you. Does that come before the Planning Commission?
Mayor Chmiel: Yeah. You go before Planning, it comes before us. Item
number 3.
ABRA AUTO SERVICE CENTER, SOUTH OF HIGHWAY 5, NORTH OF LAKE DRIVE EAST AND
CHANHASSEN ESTATES AND EAST OF THE EMISSION CONTROL TESTING STATION:
A. SITE PLAN REVIEW FOR A 6,494 SQ. FT. BUILDING. ,
8. CONDITIONAL USE PERMIT TO ALLOW AN AUTO SERVICE FACILITY IN THE BH DISTRICT.
Public Present: 1
Name Address
Al Beisner 7549 Mariner Point
James Benson 15034 Cherry Lane
Vernelle Clayton 422 Santa Fe Cr
Donald Hagen 4501 Hunters Ridge, Minnetonka
Tom Kotsonas Chan Estates
Gerard & Lindsay Amadeo 8007 Cheyenne Avenue
Councilman Senn: Mr. Mayor?
Mayor Chmiel: Yes. '
Councilman Senn: On item number 3, which we're coming to. I guess just so
there's no pre -tense that we are again leading anybody down the path or down the
road, I'd like to make a motion that this item be tabled until after our Council
work session next month.
Mayor Chmiel: Okay. For what specific reasons? '
Councilman Senn: In that the Council work session is to specifically further
discuss and seek understanding as well as potential action on a moratorium
involving Highway 5.
20 '
i
I CHANHASSEN BOARD OF
ADJUSTMENT AND APPEALS
REGULAR MEETING
FEBRUARY 22, 1993
Chairman Johnson called the meeting to order.
MEMBERS PRESENT: Willard Johnson, Carol Watson and Mark Senn
STAFF PRESENT: Paul Krauss, Planning Director; Sharmin Al -Jaff, Planner
1 I; Elliott Knetsch, City Attorney; and Steve Kirchman, Building Inspector
' INTERPRETATION OF CONDITIONAL USE PERMIT VALIDITY, CUP *88 -11 FOR A
CONTRACTORS YARD, 1700 FLYING CLOUD DRIVE, JEFF CARSON.
' Al -Jaff: This site is located north of Flying Cloud Drive, south of
Chicago /Northwest Railroad. This application first appeared in front of
the City Council in September of 1988. The request was for a contractors
yard. The application process went through a conditional use permit and
' the City Council did approve the application. Conditions are attached to
your report. One year before the application expired, the applicant
applied for a building permit and it was for the shell of the building
only. Since then, they built a foundation. However, they didn't proceed
with the construction and the ordinance states that if substantial
construction does not take place within 6 months, the application expires.
The applicant is contesting that the conditional use has not expired.
' That it should go through a public hearing process before their
application actually expires. And right there we're having, we're not
interpretting the ordinance the same way. In this case the application
' comes in front of you and the Board of Adjustments and Appeals will decide
whether the application has expired or not. We are recommending that you
find the application had expired. There are some statements that were
' made by the applicant's attorney, Mr. Jeff Carson and they are regarding
the building and the building permit. With us is Steve Kirchman, Building
Official. If you have any questions, he will be available to answer them.
And I don't know if Steve would like to make any comments at this time, or
would you rather just answer questions?
Kirchman: I'll just answer questions if you have any.
Al -Jaff: Okay, thank you.
' Johnson: Are you the Attorney?
Jeff Carson: Yes sir.
1 Johnson: State your name please.
Jeff Carson: My name is Jeff Carson. I represent Mr. Lindbery. Good
' evening. I wonder, as part of the paperwork, do you have the documents
that I submitted?
Johnson: Yes.
' Jeff Carson: Okay. I'll sort of follow along that line of thinking. As
I indicated, I represent Mr. Lindbery and in fact did so in 1988 when he
1
Board of Adjustment and Appeals
February 22, 1993 - Page 2
was before the City Council, Planning and City Council to apply for and
receive his conditional use permit. That was issued in September of 1981
and it was for the operation of a contractor's yard on his approximately
40 acres, as indicated on the overhead. In preparation for this I went to
the Code and the definition of a contractors yard because one of the II points that we are here to make tonight is that Mr. Lindbery has indeed
been operating his property as a contractors yard ever since that date.
And I think that's a paramount issue, at least as I read the staff's vie
of things because they're suggesting that so much time elapsed and a
building wasn't built and therefore the conditional use permit lapsed. I
is my interpretation, as I read the definition of contractors yard, whic
I've put on my, reprinted on my material. It doesn't require that there
be a building on a contractors yard. There may be indeed and so I point
that out because Mr. Lindbery has during this entire period of time,
although he has had some difficulty, not all through his own fault or
devices, getting up his building, which I'll discuss later. The idea th
he could operate a contractors yard never changed. He has indeed operated
a contractors yard since he was issued his conditional use permit. He
would like to finish his building. He has footings poured, and as I said
I'll get into the problems that he ran into in constructing the building
later. Some of the things that I point out, that I'd ask you to consider
in dealing with this. Obviously zoning has changed in the city since thell
conditional use permit was issued and if this were the first blush at th '
subject, we could not ask you for a contractors yard in this zone today.
And so that makes the impact of your decision and the decision of the Ci
Council even more significant frankly because if you concur with the sta
and take away Mr. Lindbery's right to use his property, as he has been
using it, it reverts really to agricultural use and he's not a farmer.
won't, if you've had a chance to read through these, I won't go through
each and every point that I make but a couple of things I think are
important. I contend that under your code, Mr. Lindbery has at all times
since the Code changed, operated his contractors yard as a non- conforminll
use. And I have a list of exhibits that I've attached and your non-
conforming section, if it does anything, it's an attempt to keep uses that
exist lawfully at the time that a zone changes, in operation. I think
that's an important feature because as you may recall, if you went throu
the Minutes of the 1989 planning meeting when they changed the or took
contractors yards away from the agricultural area. I found it interesting.
One of the gentlemen at the meeting was concerned that there was no
contractors in the audience and pointed that out. He said, there's nobo
here except the staff and the Planning Commission and the staff
technically, correctly said well, we don't have to invite every contract
to something like this. We've published in the paper that we're going to�
do this. But they went on to say that, and people who are operating
already are non - conforming. In other words they're protected. We change
the law but we don't go and erase all the uses that exist. So the
Planning Commission I think was comforted by that and went forward and
changed the law. All the while anticipating I believe that it would not
impact already existing uses. A couple of other things. The staff has 1
been dealing with Mr. Lindbery over the years. And in fact, as I point
out, and I have exhibits attached, they dealt with him on the issuance of
the building permit and two different inspections. Those would be
Exhibits 6, 9 and 10 to this attachment. The point being this. That the,
City was dealing actively with Mr. Lindbery on this site as a conditional
1
II
Board of Adjustment and Appeals
II February 22, 1993 - Page 3
use permit more than 2 years after the issuance of the permit itself. Now
1 the building wasn't up at that time, and what these exhibits show, Exhibit
6 is the building permit which was referenced by staff. Exhibit 9 is a
report that was made about this project on 10/22/90. And Exhibit 10 is a
1 copy of the reference page. That is actually the attachment of the
conditional use permit showing at the bottom that on 10/23/90 there was
some research going on and that they were going through the different
areas of the permit itself. The point being that for over 2 years after
II the issurance of the permit, the City was still dealing with the property
as a conditional use permit. There was no discussion about the building
isn't up and it's been a year. Or the building isn't up and it's been two
I years. They were going through the process. Now I also point out that
Mr. Lindbery has expended a great deal of money in this, just on the issue
of the building itself. And there are exhibits attached to show this. He
I has spent over $36,000.00 with the building permit and the purchase of the
building shell. What happened, and what I explained in a little more
detail, is that he got into a dispute with a former building official
who's not employed now, as I understand, over the type of heating the
II building was going to have. I've attached, my last attachment is a copy
of the floor heating. He intended to put heating in the floor and then
pour cement, which is a fairly typical and believed to be better method of
1 heating than what might be more or less traditional at the time. I don't
think it's terribly innovative but the point was that it was certainly an
authorized method of heating by the Uniform Building Code and by the
II Chanhassen Building Code. But they got into a dispute over it and so
that, he would not permit him to do that. That dispute unfortunately is
not very well documented by from our perspective he would not have gone
ahead and obtained the permit and expended the funds if he was not very
1 serious about getting the building and getting it up. As I said, the
footings are out there and so really the building was ready to be placed
on the property. Probably in 1989. I think there's something else that
I entered in here that kept Mr. Lindbery personally away from the project of
building the building for about a year and that was an injury. He
received an injury, work related, and crushed his leg and was out of work
for a year. So you know these periods of time, they seem like great
U lengths of time when we talk about a year here and a year there, but when
you think about this process and you think about the time that has gone
by, and in Minnesota you think about the period of time when you really
I don't construct typically, the winter. Not all that much time has
happened. What really has happened here is this. It was last summer or
spring when part of the use of Mr. Lindbery's property was the storage of
these big commercial units. He would rent them to contractors for taking
II to their sites. He was storing them on his property and they could be
seen from the highway, and so it was drawn to staff's attention. They
contacted Mr. Lindbery and communicated with him and he just didn't do
II anything for one reason or another. They're huge for one thing. They're
difficult to move.
II Watson: What are they?
Jeff Carson: What are they called Harry?
II Harry Lindbery: They are storage containers that we rent to electricians
and plumbers. They take them to a job and we set them on the
Board of Adjustment and Appeals
February 22, 1993 - Page 4 1
ground. They're 10 foot. No, they're 8 foot wide and 8 foot high and 20I
feet long. They have swing doors and they put their electrical supplies
or plumbing supplies in there and then they can lock them up. Because if
they take them out to a job site, and the delivery truck would deliver
their supplies and by the time they'd come the next morning, thieves had II
run off with them because construction jobs don't have watchmen all night
long.
Jeff Carson: I think that, does that answer your question as to what thell
units were?
Watson: Yeah, sure. 1
Jeff Carson: They were big and heavy and.
Harry Lindbery: They're 20 foot long and 8 foot square. II
Jeff Carson: They became the subject of inquiry by the staff and actua l
have since become the subject of a criminal complaint, which is pending
the District Court. Mr. Lindbery believes he has solved the problem with
respect to the placement of those boxes on his property at this point, b
that's what led to the inquiry. That's what led to the question of, now
I'm editorializing a little bit. This guy isn't playing ball with us.
What are we going to do? What can we do to him? Well, let's see. Go
back through his permit and oh gee, you know. He hasn't got his buildinji
up, etc, etc. Well, before you know it it's alleged and claimed that hi
permit is void and he's out of business. And I think that's what
happened. I think reality is that it became a personality thing and it'
unfortunate. It's unfortunate on the one hand that Mr. Lindbery didn't
respond when he was notified and satisfy the staff. It's Unfortunate that
we get into this debate really of what does the permit mean? What does •
the law mean? What has happened? Is it a non - conforming use? What
happened in the process? You know there's a lot of things to look at but
I think in reality that's what happened. Otherwise, why would the staff
have gone out 2 years after the issuance of the permit, inspect the
property and make notes and go on with things. It just feels like that'
what happened. It is our hope frankly that we can get this thing back on
track. That Mr. Lindbery can continue to operate the property as a
contractors yard. He would like indeed to put the building up and there',
a good reason to put the building up so that he doesn't have to store a
lot of the things that he might be storing and has stored on the property
outside. I mean there's a good reason he's putting the building up, and 1
that was always intended. There's a couple of things I would, I guess I
feel I should comment. In staff's report, which I received today, I
guess I'm sort of following the, my comment. Their comment format that II
was written here. A couple of points I think I should make about this.
said Mr. Lindbery had used his property since receipt of the conditional
use permit as a contractors yard. The response is, if the applicant use
the property as a contractors yard, then he did it without complying wit
the conditions of approval of the conditional use permit which was
approved by the City Council. Now frankly, it was an ongoing process. The
property has always been used as a contractors yard so I don't frankly II
understand that comment. But I take issue with it. He is in compliance
to the extent that the conditional use permit, that the points in the
Board of Adjustment and Appeals
1 February 22, 1993 - Page 5
' conditional use permit are applicable. Another point. It says although,
I said, although your zoning code has now been amended, Mr. Lindbery's use
has been modified or he's got a non - conforming use. The response was, the
' contractors yard never received a certificate of occupancy. Now I didn't
see in the permit itself any requirement that he obtain a certificate of
occupancy. If the code requires him to receive a certificate of
occupancy, he was frankly unaware of it. I'm not aware of the section
' that requires that. I'm not suggesting it doesn't but he never knew of
the requirement of a certificate of occupancy. It goes on to say that
staff visited the site on different occasions. I take that to mean that
' we don't believe that he's been operating his property as a contractors
yard during this period of time. We've been through staff's, you know the
entire file on this property and although staff has been out to the
property on a few occasions, there hasn't been a great deal of activity by
' the city on the property. The last note that we find is October of 1990.
October 23rd of 1990. So I submit that staff is not in a position, or
nobody other than Mr. Lindbery is in a position to say with any certainty
' whether he operated the property continuously as a contractor's yard. My
comment number 8 on the staff report, that staff continue to deal with
Mr. Lindbery on the conditional use permit as recent as October, 1990.
' The response is, no records were found to support this statement. Well I
submit Exhibits 6, 9 and 10 are in the official record. They do note
activity by the City. By the City officials with respect to the property
so I consider that evidence of activity on the property. But it is not
' our hope here or our point to take issue with each. I mean you can get
down to the real picky issues and the nitty gritty of things and we don't
want to do that. Mr. Lindbery wants to continue to operate his property
' as a conditional use permit. As a contractors yard. He feels genuinely
that he has the right to continue to do that. He would like to put up the
building that was started some years ago and hasn't been completed yet.
' We don't feel that the construction of that building was the, without
which you don't get the conditional use permit. That's what the
conditional use permit says. Obviously it was contemplated as one of the
things that was going to happen in the use of the property but look at
' what a contractors yard is. You obviously can operate a contractors yard
without a building. It's probably a lot better for the business and for
the city to have the building in place. I guess that's sum and substance
' of our approach. I would hope that you could see your way to recommend to
the City Council that Mr. Lindbery be recognized as an existing use, such
as he is, and that we don't have to continue to debate or fight about the
facts. The historic facts of this case. Thank you. I'll answer any
1 questions if anybody has any.
Johnson: I have a question. Why wasn't the shell put up to begin with?
I guess that's what, I've got a problem with that.
Jeff Carson: Well, that gets into the business about the type of heating.
' He bought the shell. He owns the shell. He physically owns the shell. It
cost $34,000.00 and some dollars and he purchased it. At the time he was
ready to put the shell on the property, he was going to put the heating
units in the floor and pour cement and the Building Inspector said, no.
' You can't do that. They got into a debate. That's what stopped the
project frankly.
1
Board of Adjustment and Appeals
February 22, 1993 - Page 6
1
Johnson: Does the floor have anything to do with the construction of the
building itself? Why couldn't it be put on the foundation?
Jeff Carson: Well the floor had to be poured before the building would bi
put.
Johnson: But as I understand, you had the foundation there.
Jeff Carson: No. Not the foundation. Just the footings.
Johnson: Footings. I'll take it back. The footings are there.
Jeff Carson: Well, the plan for the building included a cement floor and
so you wouldn't, what he wanted to do was put the heat units in the floor
The Building Inspector didn't want the heat units in the floor and he
couldn't, I suppose that debate should have been brought to the City
frankly.
Watson: So this debate occurred in 1988 or '89?
Kirchman: '89.
Jeff Carson: '89. 1989. Because the permit was issued in 1989 and
that's when all this started.
Watson: Do we have records of those discussions about the heating units I
and all that?
Kirchman: No we don't. 1
Watson: So no forms were filled out at that time?
Kirchman: I inspected the footings and heating was never brought up to u
at any time.
Harry Lindbery: It was to your Building Inspector.
Senn: Well I think we're getting off the point.
Jeff Carson: That was the point. Mr. Lindbery had an idea and he had the
plan for the heating at that time and the inspector, were you the
Inspector sir?
Kirchman: I was the inspector that's noted on the 10/22/90 inspection
report.
Jeff Carson: No, no. But were you the inspector on site dealing with
the heating? Probably not.
Kirchman: There's no heating in the building so a heating inspector was
never out.
Jeff Carson: Again, it's not probably worth the debate here.
If
Board of Adjustment and Appeals
February 22, 1993 - Page 7
I Watson: No, I was just trying to figure out if we had records indicating
that that was the reason the building didn't go up.
I Jeff Carson: I don't think the records would ever reflect just that but
from Mr. Lindbery's point of view, that's what happened.
Johnson: Did he ever apply for a heating permit? It was required.
I Jeff Carson: I think, I'm not really that well versed on the permitting
process. I think it was all encompassed in the.
1 Watson: Original building permit? The original building permit says just
a shell.
1 Harry Lindbery: Are you familiar with radiant heat?
Johnson: No, I'm not an engineer on radiant heat.
I Harry Lindbery: May I show them?
1 Jeff Carson: Well they have a copy of that.
Johnson: We have a copy of that.
I Watson: Yeah, it's okay. We're just trying to get inspections and
permits straight.
I Johnson: And I guess another question I have, why wasn't the fencing
process started or finished or whatever? It was indicated it would be
done as a part of the conditional use permit.
I Jeff Carson: Fencing of? I expect the only fencing that would have been
done would have been to block.
I Johnson: Yeah, blocking fencing I guess or.
Watson: To screen.
1 Jeff Carson: Screening. Well you know, the lay of this land is such that
you can screen items, if you will, from view. Is everybody familiar with
I the property? You go down and then around and actually there's a berm
that screens quite nicely and as I've said, and it was our, you know in
this big units. Sometimes you build a fence to hide the biggest thing and
you've done more harm with the fence itself. It's been our view of that,
I that the permit required screening, opaque fence, berming or landscaping
and that that was satisfied by getting the units that were being stored
out of sight essentially. And they really were out of sight too and are
I today. It's just that they weren't. They were up closer to the road and
that led to the problems.
Senn: Sharmin? Are the outdoor storage areas screened with opaque
I fencing, berming or landscaping?
Al -Jaffa No they're not.
Board of Adjustment and Appeals
February 22, 1993 - Page 8
Senn: Was a proposed screen plan ever filed at the time of the issuance II
of the building permit?
Al -Jaff: I have not found anything in the file. The only thing that
has...is this one. Right here is the existing building that you see... II
driveway. The proposed building would have been here. Parking is right
here. But this is all we have. This is the only thing in the file.
Senn: Okay. So there is no proposed screening plan?
Al -Jaff: No.
Watson: Because the original intent was to enclose this, was it not in
this building?
Al -Jaff: Correct.
Senn: Well yes and no, except it takes kind of a giant leap it seems to I
me. Did the, well hours I suppose aren't really an issue here right? I
mean the hours of operation aren't an issue under the conditional use
permit?
Al -Jaff: There is a limitation on the hours. It was between 6:00 and
7:00. '
Senn: But there hasn't been, there's no problem in relationship to that.
How about light sources? Are all the light sources shielded?
Al -Jaff: There isn't a building. '
Senn: There are no light sources?
Al -Jaff: No.
Senn: Okay.
Al -Jaff: There isn't in operation that we are aware of taking place.
Senn: Okay. Have they complied with the conditions of MnDot, including I
the installation of the right turn lane and left turn lane?
Al -Jaff: No. '
Senn: Okay. Is there bituminous driveway, parking areas, and loading
areas? '
Al - Jaff: No.
Senn: Is there compliance with the conditions of the resource engineer"
has written? I don't have that memo of August 9th so I don't know exactly
what it says but.
Harry Lindbery: That would be septic systems.
Board of Adjustment and Appeals
111 February 22, 1993 - Page 9
' Senn: That would be septic systems? Okay. Is there protection of the
two septic system sites during construction? Well, they never constructed
so that's a non - issue. Has there been installation of a holding tank?
' Jeff Carson: I think that would come at the same time as the building
itself.
' Senn: Okay. Is there a handicap parking space on the site?
Al -Jaff: No.
' Senn: Okay. Building must be sprinklered. Well, that's a non -issue if
the building hasn't been built. Contractors yards, okay zoning ordinance.
Okay. Comply with all conditions and natural resources and watershed
district permits. Did they ever get those permits?
Al -Jaff: There is a permit?
Jeff Carson: Yes, we did.
Senn: Have they been complied with?
' Al -Jaff: Well there isn't a building.
' Senn: No, I understand that.
Krauss: So no, they did not.
' Senn: No, okay. Have all the existing buildings been trucked off site
and disposed of? Okay. Erosion control plan shall be revised to include
check dams. 100 foot intervals on all proposed drainage. Has that been
' done? Has the erosion control plan been revised? Okay. Bear with me a
minute because, the plan shall be revised to include erosion control
measures. Okay, so that's no. Outlet subdivision of vehicle. Submission
' of a vehicle inventory list?
Al -Jaff: That hasn't...
' Senn: No heavy equipment and machines will be operated between 6:00 p.m.
and 7:00 a.m.. I assume that hasn't been a problem. No shipping
activities will originate, so that seems like a non - issue. When I was
' looking at this tonight I really got confused because I don't honestly
know who wrote this in 1989 but it's probably one of the poorest written
conditional use permits I've ever seen. Why, I mean there's no reference,
it seems like we screwed up. I mean there's no reference in the
conditional use permit about a building and the building be completed
which is pretty well standard form these days. At least when we do a
conditional use permit.
' Krauss: Except that there is reference to a building in the conditions
and you don't...
' (There was a tape change at this point in the discussion.)
1
Board of Adjustment and Appeals
February 22, 1993 - Page 10 '
Senn: When you look through all of this and shake it all out, what we're
here is not really for an ordinance interpretation question. What we're II
here is we're here to revoke a conditional use permit which has been in
violation for quite some time and the conditional use permit is very II specific on that. I mean it says, this shall be done and if I go down
this list, almost none of it's been done. Why aren't we simply revoking
the conditional use permit?
Krauss: Well that's been the subject of a lot of discussion and maybe thI
City Attorney can explain why it's here and what will happen next.
Elliott Knetsch: The reason it's proceeding in this manner is because I II
think we've got a site plan that calls for the construction of the
building and the building is a part of the conditional use permit. We
wouldn't have granted him a permit without the building. While the permit
probably should have said that, with the site plan that Sharmin just had
on the board, I think it's clear that the building's part of it. And even
if you look at the last date submitted by the applicant, which is October"
of 1990 as having staff working on this as a valid permit, it's still be
over a year since any activity whatsoever has taken place on that property
in terms of completion of the building. So what happened here is not
unusual. One day before the one year period was up, he got a building II
permit. Staff worked with that building permit for approximately a year.
Then it went dead. So the building lapsed for a period of greater than
year. Secondly is the issue of use. And I would agree with the
applicant's attorney that simply not completing a building does not mean
he wasn't conducting contractor yard activities out there. I do agree
with that statement. Based on our ordinance definition of contractor
yard, if he was using it as a contractors yard, even though the building
was not completed, that would be valid use and the use would not have
lapsed so that the permit lapsed. However again, I think we'd find, if
asked Sharmin and we asked Steve Kirchman, if staff has been out to that
site since October of 1990, and whether any contractors yard activity has
been taking place, I think their answer would be no. Nothing's been going
on. Steve Kirchman was out there because he had wanted to check and I
insure that there was an active building permit. Things stopped. That
permit went dead and so he went out there periodically to check to insure
that building was not taking place without a valid building permit. So h'
was out there a couple of times and he has some logs that back up the
dates he was there. It's also my understanding that Sharmin and perhaps
other Planning staff have looked at that site and have gone there for the
purpose of looking at that site, as well as viewing it as they go around!'
the city looking at other sites, and there has been no activity going on
since that time. So staff has taken the position that based on our
existing ordinances, the permit lapsed for non -use. '
Senn: I understand that all. I've read all that before you just repeated
it, but the question still remains. Why are we not revoking the II conditional use permit on the basis that they're in violation of their
conditional use permit?
Elliott Knetsch: There's nothing to revoke. The permit is gone already.,
Senn: So that's your position?
Board of Adjustment and Appeals
February 22, 1993 - Page 11
Elliott Knetsch: That's my position.
Senn: So you're saying there's no need to revoke something that doesn't
exist?
Elliott Knetsch: Right.
Senn: Okay. Why doesn't it reference in the conditional use permit or
Exhibit A the site plan you referenced, like it normally would in a
conditional use permit?
Elliott Knetsch: I can't answer that. I didn't write the permit.
Krauss: It pre -dates all of us Councilman Senn.
Senn: Paul, I guess I'm real uncomfortable taking an action based on all
this supposition whereas to me it seems like there's a very clear action
here. I mean to me the very clear action is that you revoke the
conditional use permit. That it seems nobody is debating he's in
violation.
Jeff Carson: Well, we would take issue with that.
Senn: Would you answer these questions for me again then and dispute any
ones that he answered incorrectly?
Jeff Carson: The only thing I can say Councilmember Senn is this. The
things that you pointed to, all of the construction and the parking and
the bituminous and the lane and all that.
I Senn: Bituminous has nothing to do with the building being built.
Jeff Carson: No. That was all going to happen at the time that the
building was put up.
Senn: But that's not what the conditional use permit says. Your
conditional use permit says, okay. The permit is issued subject to the
following conditions. See attached Exhibit A. Termination of permit.
The City may revoke the permit following a public hearing under the
following circumstances. Material change of condition of the neighborhood
where the use is located violation of the terms of the permit. None of
the conditions of the permit have been met...
Jeff Carson: The City hasn't revoked the permit. The City has taken the
position that it doesn't exist. I'm taking the position that this
property has been operated as a contractors yard from the onset. The fact
is is that the applicant ran into a loggerhead over the construction of
the building. Nobody in their right mind would pay $34,000.00 for a
shell if he didn't intend to put that shell on the property.
Watson: That dispute occurred in 1989. This is 1993. I can't believe
that something could not have been worked out or dealt with in the
preceding close to four years.
1
Board of Adjustment and Appeals
February 22, 1993 - Page 14
City staff or a city was going to tell somebody who's operating 40 acres
of land as a contractors yard, that unless you complete or unless you do
something within 6 months or 30 days, or whatever it is. We're telling
you. We're going to shut you down or we're going to void your permit. I
would expect that. Maybe it's that the government has to be a little more
on it's toes. I don't know. But it seems unfair to come after the fact
and say, I guess it's over. You don't have a chance to follow through.
You don't have a chance to put that $34,000.00 shell that you bought on
the property.
Watson: But it's been years. I mean it's real hard to understand why
nothing has occurred. I mean a dispute over heating in 1989 causing the l
fact that there's still no construction by 1992, I'm sorry. I mean any e
reasonable person.
Senn: It's inmaterial. It's not even an issue in the permit. ,l
Watson: well yeah. And there was obviously the intent to build a
building which didn't get built. They did after all buy a building
permit.
Jeff Carson: Yeah. el
Watson: Which tells me there was intent to build a building in 1989 which
is not there. l
s
Jeff Carson: I can't try to convince you that you're wrong in your
reading of that or that the time that has passed has passed. It did. Bu*
I'm saying that it's, what you're doing if you take the pro - offered actio l
or inaction and just conclude that it's void, is you're taking a piece of
property that has one value and one use and reducing it rather
substantially to virtually nothing.
Watson: What you want from us is to say that the conditional use permit
has expired? l
Al -Jaff : Correct.
s
Watson: That's basically the action that you are recommending? a)
Krauss: Well I guess the action is basically to agree or disagree with
staff's interpretation of that section of the Code.
s
Watson: How would that be stated? I mean it says here, find the
conditional use permit has expired. If you want us to have interpretted
the Code, exactly how would that be put into a motion?
Al -Jaff: That same conditional use permit is void.
Elliott Knetsch: I think you can just have a motion that you concur with 1
staff's interpretation of the ordinance as applied to this situation.
Senn: If we void the conditional use permit, does he have the option of I
applying for another one?
Board of Adjustment and Appeals
February 22, 1993 - Page 15
Al -Jaff: Contractors yards are not a permitted use in the A2 districts
' any longer. It was switched from conditional use to interim use, I
believe it was in 1990 and then contractors yards were deleted from the
ordinance.
Senn: But he could rezone the property.
Al -Jaff: To?
' Senn: Something that would allow it.
' Krauss: No, not really. There's very, well I suppose you can go down to
the.
' Watson: Did you see the property Mark?
Senn: Yeah.
' Krauss: We do have a business fringe district.
Watson: That includes Gedney and that storage.
' Krauss: No, Gedney is actually industrial but Gedney is on sewer and
water coming out of Chaska. The only other non - agricultural, non single
family uses down there are in the business fringe district. The Planning
' Commission has been very relunctant to see any more land zoned BF.
Senn: No, I understand. I'm just asking if it's an option that the
' applicant has.
Krauss: Yeah, there is a possibility that that yes. That is an option.
' Senn: And the use would be allowable under some form of rezoning,
industrial or.
' Krauss: Well it does allow things like cold storage buildings. I'm not
sure that it allows the contractors yard.
' Al -Jaff: It won't allow contractors yard.
Senn: I've already heard that because contractors yards are abolished but
what he's doing doesn't necessarily have to be called a contractors yard.
' Jeff Carson: Could I make just one further point?
1 Krauss: What he's done to date has not been a contractors yard.
Senn: I understand that but that's why I'm trying not to get into those
' kinds of semantics. But he can change the use of his property?
Watson: He's free to apply to do whatever he wishes.
Jeff Carson: Could I make a point, one further point please? My Exhibit
11 is a copy of the April 8, 1989 point in time when the Planning
1
Board of Adjustment and Appeals
February 22, 1993 - Page 16
Commission was considering the start of the abolishment of contractors
yards in the agricultural zone. And I submit this, or I put the question '
back to the city. If at that time they had invited those existing
contractors yards or those people with existing contractors yards in to
advise them what was happening. I mean it's fine to say well we
published. We met the technical, literal requirements of the law but the'
reality is that in all likelihood no contractor operating a contractors
yard read that. So what happened here is that the gentlemen said, there'
nobody here. We're taking action to remove contractors yards from
agricultural zones and nobody's here. Why is that? Has anybody been
notified? The answer was no. Well why not? Well, they're going to be
grandfathered. So that took care of it. The problem is for someone in II
Mr. Lindbery's situation, had that been brought up at the time or had it
ever been brought to his attention that unless you get this thing
completed to our satisfaction, within a certain period of time, it's over
In effect it just happened and he didn't know it. That's really what
happened. According to the interpretation that staff has. And I
understand how that happens but it doesn't seem to, you know it kind of
doesn't pass the fairness test if he really didn't know. If he had been II
invited to that '89 meeting, or that period of time in the City's history
where you were going to take them away, and he said what about me? Or you
know, at that point he's going to say what about my operation or am I
grandfathered or what about it? He's either going to learn he's going to
do this or else, or that he is. One of the two. And that's at least in
part an answer to the real world. Answer to your question of how much
time, all this time had passed. Could have been remedied pretty easily
right here. I don't know how many contractors yards there are in
Chanhassen. Can't be that many. There can't be that many. I mean if
you're going to take those zones and deal with them, you must have a file
where all those contractors are listed. Just tell them that you're
dealing with the zoning that effects the location of contractors yards and
I don't think we'd have had this problem. And I guess I'd ask you to
perhaps not be quite so technical with the applicant. Say look, get your
application in. Get it done within a specified period of time or else.
Watson: But we. '
Senn: Already been done.
Jeff Carson: No. '
Watson: That's been done. I mean everything has a date.
Senn: Can I make a motion?
Johnson: First I need a motion to close the public hearing.
Senn: I move to close the public hearing.
Watson: Second. '
Senn moved, Watson seconded to close the public hearing. All voted in 11 favor and the motion carried. The public hearing was closed.
If
Board of Adjustment and Appeals
February 22, 1993 - Page 17
Johnson: Okay, now go ahead with a motion.
1 Senn: I'll make a motion that we void CUP #88 -11 on the basis that no
construction has been started on the site to date and that the applicant
is in violation of a majority of the conditions set out under the
conditional use permit.
' Watson: That will do it?
Senn: That's the motion.
Elliott Knetsch: If that's your motion.
Watson: Will that take care of what it is we're here to do?
1 Elliott Knetsch: Well it's published as a public hearing interpretting
the zoning ordinance.
' Watson: That's kind of why I asked you how do you want us to say this?
I'd be more than happy to second that motion if it takes care of the
issue.
Elliott Knetsch: I think Mr. Senn heard my, what my proposed motion was
and he's made a different motion so, that's the motion that's on the
1 floor.
Johnson: Do you want to rescind your motion?
Senn: No I don't. I'm comfortable with that motion. I'm not comfortable
with the other one.
' Watson: I want a motion that takes care of what we need or we're going to
be back here doing it again. Or the City Council's going to deal with it
and we prefer to take care of our own business.
Johnson: It will die for lack of a second. Do you want to make?
Watson: Yeah, I want you know, I want what we need in order to put this
issue to rest once and for all. Would you state that again please?
Elliott Knetsch: Well, I would suggest that the motion would be that the
Board of Adjustment and Appeals concurs with the staff's interpretation of
the Zoning Ordinance as it relates to this application.
Watson: I'm happy. I so move.
1 Johnson: I second. Any more discussion?
' Watson moved, Johnson seconded that the Board of Adjustment and Appeals
concurs with the staff's interpretation of the Zoning Ordinance as it
relates to the.Conditional Use Permit validity of CUP *88 -11 for a
' contractors yard at 1700 Flying Cloud Drive. Watson and Johnson moved in
favor, Senn opposed. The motion carried with a vote of 2 to 1.
1
1 :
Board of Adjustment and Appeals II February 22, 1993 - Page 18
Jeff Carson: Sharmin, will there be Minutes of this? 1
Al -Jaff: Yes there will be.
Jeff Carson: Printed? 1
Watson: We've got Minutes.
II
Jeff Carson: Printed Minutes of this action?
Watson: We've got them right here.
I
Jeff Carson: No, of this action.
Al -Jaff: Correct, there will be. 1
Krauss: Now this is also scheduled on the City Council agenda.
II
Jeff Carson: Thank you.
Al -Jaff: For tonight. 1
Krauss: Following on the assumption that there would have been appeal. In
this case there's not a unanimous decision at any rate. 1
APPROVAL OF MINUTES:
Watson moved, Johnson seconded to approve the Minutes of the Board of
II
Adjustment and Appeals meeting dated January 25, 1993 as presented. All
voted in favor, except Councilman Senn who abstained, and the motion
carried.
I
Watson moved, Senn seconded to adjourn the meeting. All voted in favor and
the motion carried. The meeting was adjourned at 7:30 p.m.
II
Submitted by Paul Krauss
Planning Director
Prepared by Nann Opheim II
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PRELIMINARY SITE PLAN
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� CITY OF CHANHASSEN, MN � ,
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1 VICINITY MAP / . J /
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AREA 40.486 ACRES INCLUDES i " /
HIGHWAY EASEMENT. t + S / ,
AEA 38.859 ACRES EXCLUDES sto /•'/ / / '`
HIGHWAY EASEMENT a[''' - .
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LEGEND -
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J •' / , 1__ TYPICAL RURAL SECTION
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SKIMMER DETAIL ' —
�[+ ! WILLIAM R. ENGELHARDT ASSOCIATES. INC ..
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� . •"""°.:r■,. -.n: SITE PL AN al+t•nREO FOR
w „t •`a - •• STORM SEWER •r GRADI PLAN
CONSUMING ARRY LiNDBER
MING ENGINEERS N•
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'a:. IIJ..r.}f MULL cA A, •.S $0,,, ,sC .--.-