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1l Findings of Fact and CUP Harry Lindberry
CITYOF --_. • CHANHASSEN 1 � � 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 - (612) 937 -1900 • FAX (612) 937 -5739 't% Action by CY Mmtnistestve 1dorsed_ ' 1Nodit�e� MEMORANDUM Rejecter Date TO: Don Ashworth, City Manager Date Submitted to Commisst011 ' FROM: Sharmin Al -Jaff, Planner I Date Submitted to Coma 1 DATE: June 9, 1993 ' SUBJ: Findings of Fact and Decision regarding Conditional Use Permit No. 88- 11/Harry Lindbery ' On May 24, 1993, the City Council considered the revocation of Conditional Use Permit 88 -11 for contractor's yard activities on property located at 1700 Flying Cloud Drive. The City Council moved to revoke the Conditional Use Permit with the condition that the City Attorney prepare ' Findings of Fact and Decision. Attached are the Findings of Fact and Decision that were requested. RECOMMENDATION Staff recommends the City Council adopt the following motion: ' "The City Council adopts the attached Findings of Fact and Decision." 1 ATTACHMENTS 1. Findings of Fact and Decision. 2. Staff report dated April 22, 1993, and City Council minutes dated May 24, 1993. 1 1 1 1 � 4. 4 PRINTED ON RECYCLED PAPER 06/09.93 14:13 12612 452 5550 CAMPBELL KNUTSON 44 CHAN. CITY HALL [ij003- 008 CITY OF CHANHASSEN 1 CARVER /HENNEPIN COUNTY, MINNESOTA 1 IN RE: Revocation of Conditional Use Permit FINDINGS OF FACT ' CUP No. Harry Lindbery. Owner: H FINDINGS DECISION arry Property located at 1700 Flying Cloud Drive, Chanhassen, MN 55317. FINDINGS OF FACT On May 24, 1993, the Chanhassen City Council met at its 1 regularly scheduled meeting to consider the revocation of Conditional Use Permit No. 88 - 11 for contractor's yard activities ' on p roperty located at 1700 Flying Cloud Drive in the City of Chanhassen ( "Subject Property "). The owner of the property, Harry Lindbery, was present and represented by legal counsel, 1 Jeff Carson. The City Council heard testimony from all interested persons wishing to speak at the meeting and now makes ' the following Findings of Fact and Decision: 1. The property is zoned A - 2, Agricultural Estate District. 2. At the time CUP No. 88 -11 was issued, contractor's yards were allowed uses in the A - 2 District by conditional use ' permit. 3. Subsequent to the issuance of CUP No. 88 - 11, the zoning ordinance was amended, so that contractor's yards are not a permitted or conditional use in the A -2 District. 4. A true and correct copy of CUP No. 88 -11 is attached hereto as EXHIBIT "A ". 06/09-93 14:14 $612 452 5550 CAMPBELL KNUTSON - CHAN. C ITY HALL 004/008 1 5. A true and correct cop y of the approved site plan for CUP No. 88 -11 is attached hereto as EXHIBIT "B ". 6. The approved site plan required the owner to install a storage building, loading dock, parking lot, driveway, 1 drainfield, retention pond and related drainage improvements, and other improvements to the Subject Property. ' 7. None of the improvements specified in No. 6 above have been constructed. 8. On July 14, 1992, City staff observed seven sea /land , containers and approximately ten large round concrete pipes stored in the open on the Subject Property. ' 9. CUP No. 88 -11 required: "1. A11 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." 10. No screening plan has been submitted to the City. The seven sea /land containers and the concrete pipes were not completely screened by 1009' opaque fencing, berming or landscaping. 11. CUP No. 88 -11 required: "5. Compliance with the conditions of MnDOT including installation of a right turn lane 1 and a left turn lane if required by MnDOT." The owner obtained an access permit from MnDOT in November, 1988; however, the , approved construction within the state's right -of -way per the , plans and specifications of the permit never took place. -2- 1 06.09/93 14:14 1T612 452 5550 CAMPBELL KNUTSON 44.4 CHAN. CITY HALL Z005%008 1 12. CUP No. 88 -11 required: "installation of bituminous driveways, parking areas and loading areas." None of these items have been constructed. ' 13. CUP No. 88-11 required: "7. Compliance of the conditions of resource engineering as written in their memo dated ' August 9, 1988." The owner has not complied with those conditions. ' 14. CUP No. 88 -11 required: "9. Installation of a holding ' tank." A holding tank has not been installed. 15. CUP No. 88 -11 required: "13. The applicant shall 1 obtain and comply with all conditions of the permits from the Department of Natural Resources and the watershed District ' Permits." The owner has not obtained permits from DNR and the Watershed District. 16. CUP No. 88 -11 required: "14. All the existing ' buildings shall be trucked off -site and disposed of properly." The existing buildings have not been removed from the Subject Property, 17. CUP No. 88 -11 required: "15. The erosion control plan shall be revised to include check dams at 100 -foot intervals in all proposed drainage swales." The erosion control plan has not been revised. 1 18. CUP No. 88 -11 required: "16. The plans shall be revised to include erosion control measures for the proposed construction within the immediate area of Bluff Creek." The 1 plans have not been revised to include erosion control measures. 06.09:93 14:15 $612 452 5550 CAMPBELL KNUTSON 44- CHAN, CITY HALL Z006/008 1 19. CUP No. 88 -11 required: "17. The pond outfall shall be revised to include a submerged outlet detail in place of the 1 wood skimmer." The pond outfall has not been revised to include a submerged outlet detail. 1 20. CUP No. 88 -11 required: "18. Submission of a vehicle inventory list." The City has not received a vehicle inventory 1 list. 21. The owner testified that he had begun using the Subject Property for contractor's yard activities. 1 DECISION CUP No. 88 -11 is hereby revoked. 1 Adopted this 14th day June, 1993. 1 CITY OF CHANHASSEN 1 By: Donald J. Chmiel, Mayor By: 1 Don Ashworth, City Manager 1 1 1 1 1 -4- 1 VV' VC/' OV J. • Ir _ CARVER AND HENNEPIN COUNTIES, MINNESOTA CONDITIONAL USE PERMIT II 1. Permit. Subject to the terms and conditions set forth herein, the City of Chanhassen hereby g rants a conditional ' use permit for: Contractor's yard activities 2. Property. The permit is for the following described II property in the City of Chanhassen, Carver County, Minnesota: That part of the East Half of the Southeast Quarter of Section II 34, Township 116 North, Range 23 West of the 5th Principal Meridian which lies northerly of the center line of U. S. Highway II No. 212 and southerly of the southerly line of Chicago North Western Railway Company. Subject to an easement for Highway No. 212 over and across the II southerly 50.00 feet thereof. 3. Conditions. The permit is issued subject to the II following conditions: See attached Exhibit A. 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. II 5. Criminal Penalty. Violation of the terms of this conditional use permit is a criminal misdemeanor. il Dated: September 12, 1988 J• CITY c .ANAASSE • � / , L I -- Ma Of r. i 1 �T ;. By: IF Its Clerk 1 STATE OF MINNESOTA) ) ss COUNTY OF CARVER ) II The f regoing instrument was acknowledged before me this ,,f day of , 19dd8, by Thomas L. xamilton, I Mayor, and D n shworth, City Manager of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation. 1, C'••• N-tary Pi • lic I .01"31"4511+ !VAN! 06.09 %93 14:29 $612 452 5550 CAMPBELL KINTTSON 44-> CHAN. CITY HALL X004.004 E XHIBIT A 1. All outdoor storage areas must be completely screened by 100% IF opaque fencing, berming or landscaping- A proposed screening plan shall be submitted prior to issuance of a building permit. IF 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. 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, 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 a 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 1 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. 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W .... , :.: i; ,.• • s i R9 911R1 1111\ . ..! • *1:1 . 0' . r .. .• . ..... .._ - .7" ,o•'' ••• " ' 1=1=1=- . ../.. .• • __,,,=.-- ,,,••••• ."' / , ,/ • •-• ,_. VICINITY MAP •••''. • • .. . • • .• I . ■ I ZZ.,;* ' ■ • ■ 1 e ....! : ../ • • ' '''.'" ?.•'" V."! "":•• '-:;•=1. ff. 4.: 4 i • •-• . - — 40 0.. . .....;:••••:, .-• t ••■••:;,%.•■■■:711::'"," ".....". ..'" I . ,::. '....7 ' 'IS "" " ' ..' .". ,te y i:_<1 , , 0 ./.• :."..' O.* ..r1 ., . I , O ' . • • ' •••" • .... -. ' ,• 1 .. _ _ , ,,,,,,, ./.' AREA 410.466 ACRES iNci_voEs 4 4‘ ..‹....:!•.•.. .• HIGHWAY EASEMENT. 1 1 .P[it • 38.859 ACRES EXCLIJOES I H1GMWAY EASEMENT 1 ,•• • • r ...• .5 Q / ••• ' , ... • ••• ' ,,, - ... ! / I - I , • ,,, 4.,.., ..• . • .., . ... .... .••• , LEAEHD ICO ... ...• ' • •-.• (.•11••••• mem.* I •--1. PACOC C..... tm 61 flopne orOT LLLWT.P. /1: . , -.., / ..-....,•••(•< • ....... e' ...." "- -- -. 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W �� �� CR ADING PLAN HARRY L,IND8ERY ......4 .4..: ! I 147 CONSUL 7WGENGWEER r rrs..�w r SY ORM SE WEk .4Ar 1AC .... CY] ,4 ..FTC 100 ,.rtiO e,tl•. - - r i•. 1 1 1 1 1 1 1 1 1 1 1 1 1 06- (►9.93 14:15 V612 452 5550 CAMPBELL F�L1TS0\ -� CH9�. CITT HALL z (l(►i . (�08 - �— R AND ,SENN °r4. - - CARVE pERMX C pt1DYTY0NAL USE and c onditi ons set �� ubieCt to the terms a conditional l - pe — r � S nhassen hereby grants of Cha the City ractvr' and activities described II f forth herein. s Y the following II Cont for use Permit for•o The permit is Carver County, Minnesota- II 2. Fr ert in the City °� Chanhassen, Ca east Quarter °f . South 5t h p r inc 1 S al R i Section II ghwaY pr::e.ro1: rty of the Ea Ball ange 23e West he center a 5.th Pr c North II F orth,tey ° erlY lin3a wnswh i h lies northerly so Meridian and Southerly °f 12 over and across the p . 21 Railway C°�►pa • No • 2 Western Ra easement for RighwaY d subject o the Subject to an pa feet thereof • �t is issue t southerly 50. ions. The perm Condit Exhibit A. II 3• Fee attached Exh e ns: The City may Revoke th following conditions: wing ° g Permi of the folio II Termi n od �' hearing under any f the r following rho lowing a public material change of condition o of the permit. permit f o1- II �,ater f the term c ircumsta nces: • violation o the terms o- this the use located. violation of is II re t where S• Criminal Penal criminal misdemeanor• nditibnal use permit is a 1 , 1988 . ALIHASSEN / September 12 Dated: CITY 4 C--, aY Ma ,. 1 - _•• • -';T $Y s I Clerk r; Of is-voi OF MINNESOTA) ss re me tr. STATE before 1; VER � a cknowle d g ed i�,tonr II COUNTY CE CAR instrum was a n o le e L. p e fore a tr. f regoi.ng , 1958. ° f the C ity cotPor 18 tfi, day of shWO City g o behalf o tha ` ' II n al corporation, 39. M r Y x. and a muniGlg a Minnesota �_tarY p. ••.lic , I � . ..... ET A r. / J ...... .' ms s t ..• '� r" , .:r�� EXHIBIT �� An City Council Meeting - May 24, 1993 e. Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus and shall be provided with a surface so as to provide all weather driving capabilities. The roads shall be in place before construction on new dwelling starts which is greater than 150' from County Road 117. f. If the road does not connect to the south to for a looped road, a temporary Fire Department approved turnaround shall be provided. See preliminary utility plan. 1 All voted in favor and the motion carried unanimously. REVOCATION OF A CONDITIONAL USE PERMIT FOR A CONTRACTOR'S YARD, 1700 FLYING ' CLOUD DRIVE, HARRY LINDBERY. Sharmin Al -Jaff: On September 12, 1988 the City Council approved a conditional 1 use permit for a contractors yard. Since that date substantial work and improvements didn't take place on the site. According to city ordinances, a permit expires if substantial improvements don't take place within one year of the date of approval. Staff took the position that that conditional use permit had expired. The applicant objected to staff's interpretation. We appeared before the Board of Adjustments and Appeals as well as the City Council for an interpretation. The vote was that the conditional use permit had not expired but we were directed to bring this application back before you in order to revoke it. A public hearing was held at the April 21st Planning Commission meeting which satisfies the applicant's due process concerns. On pages 2 and 3 of the report, you'll find the original conditions of approval. None of these conditions have been met. Based upon that, the Planning Commission as well as • staff is recommending you revoke conditional use permit #88 - 11. Also I'd like t 1 to add that Building Official Steve Kirchman is here today to answer any questions you might have regarding the building permit or any other statements made by Mr. Lindbery. Thank you. Mayor Chmiel: Thank you Sharmin. Prior to getting to Mr. Kirchman we'll see is Mr. Harry Lindbery here? Jeff Carson: Mayor and Council. My name is Jeff Carson, appearing with Mr. Lindbery and on his behalf. I've been here before for one procedural process or another. I think the, I'm not sure what type of presentation you might anticipate for the applicant tonight. Every time we've been before a particular body of the city there seems to be some interest in trying to work something out but the weight of persuasion seems to be end the pain and, from the city's point of view, and revoke the permit or determine that it doesn't exist. And I think that the difficulty that the applicant has had, or some of the difficulty is framed within the initial contact and what I'm calling the attitude that this was originally, how it was dealt with. To conclude out of the initial review that the conditional use permit expired and finding ways or facts, supporting facts to support that. The reality here is that until the summer of 1992, 4 years after the, almost 4 years after the issuance of the conditional use permit, nobody inspected, apparently nobody inspected the site and nobody determined anything with regard to Mr. Lindbery's use, or the lack thereof during that time. Just as your code says substantial construction must be done within a year or the permit lapses, it also says that at least one inspection 1 19 ' City Council Meeting - May 24, 1993 will be made each year to determine permit. liance with that ermit. That wasn't P done either so when I say the attitude that the staff went at the subject with, it was simply based on the observation of these items that were found on the property, subsequently put into compliance. We feel, and from there it was just like a snowball going downhill. There was no way that Mr. Lindbery was {" :, ' going to be able to satisfy the Planning Commission, the different agencies or the Council. If you look, if you really look at the timeframes. A lot has been made of the timeframes that have elapsed here. There isn't a lot of documentation for this but there is some and it does show that applications for part of a construction building project was before the city the summer of 1990. And so if you look at the timeframes, from the issuance of the permit in 1988 through the summer of 1990 where actual give and take was still existing between ' city staff and representatives of Mr: Lindbery, he actually missed one part of one construction season in 1990. Summer of 1990 through that fall. We've already explained that from the spring of 1991 for an entire year he was laid up ' physically. He could not do anything on this project and in the summer of 1992 that's when the observations were made and the criminal charges brought and so we have actually been before, in effect before the city for the last year. Almost for the last year dealing with this, so a year's time goes by really in this process in l he snap of a finger. If, and let me just highlight what I'm calling the attitude or the process. The idea that we're going to find something wrong with it...of the conditional use permit. That is just different ' than the work up that is given. They at least give him credit for, I think it's number 5. Application to MnDot but if you look, if you go down and look at these, you can't just say he's in non - compliance with 1 thru 20 because many of these things you wouldn't be in compliance with until you constructed the building. The very building that we're discussing. Number 1, we claim we are indeed in compliance with today. Okay? Staff says we're not in compliance with number 1. We say we are and I don't think, I think the facts will support that. II Number 2, hours of operation. Is there any fact before this body that says we are operating in violation of number 2? Number 3. Light sources shall be shielded. There are no lights so there's not a problem with number 3. Compliance. Number 4. No outside speaker systems are allowed. No allegation that we violated that so put compliance by that. Number 5, they've given credit for that in one memo or another. Number 6, the installation, 6 and 7. Installation of bituminous driveways, parking areas and loading areas and 7 would all come with construction of the building. Some of this just has to be common sense I think. 8, protection of two septic systems. That's again during construction. 9, installation of a holding tank. Same thing. Building must be II sprinkled, number 10. Not a problem. Number 11, provision for handicap space. Obviously, since we don't have the building built yet, we're not to that point. But can and will do that. Number 12, contractors yard activities as defined in II your code has been observed and have been operated ever since the issuance of the permit. Compliance with 12. 13. I don't think there's any indication that we have not complied with the DNR requirements, or certainly we will. 14. I I explained initially when I came before you that discussion has been had between Mr. Lindbery and city staff and a caretaker is living on the property. It makes perfect sense to have a caretaker living there and it apparently did with staff, if that's in dispute, I don't know whether it is or not but I don't think the II facts are clear if that's important to the city or not. 15, erosion control plan. 15 and 16. There's no indication that there's any problem with erosion. If you need some plan or if there's a need for a plan, certainly we would 11 provide that. 17, 18. Providing a proper ponding. Vehicle inventory. No ' 20 City Council Meeting - May 24, 1993 heavy equipment. No indication of any of these. No shipping activities. We claim in essence we are incompliance with essentially all terms of this permit r or, can be when the particular -item in question becomes operative. Some of them obviously do not become operative until the building is constructed. So when L-1 1 staff makes a blanket: statement that he is in non - compliance with every permit �'' requirement, it's simply not true. And if that's the, again I come back to, it's an attitude thing. Don't try to work with him and see what he can do or will do or is able to do with regard to these things. Just simply say, it's not done. It's just too easy .for them to do that. .1 mean they're looking at it 4 years after the issuance of the permit and they're simply saying, the year's up. You didn't construct the building: Where in the permit does it say you have to construct a building? So it's•circular and•we. can't win according to staff. We can't satisfy them. We're not even allowed to try actually. I respectfully request based on the history of this. Based on what I'm calling the sensible common sense look -at the permit itself, that you -do not revoke Mr. Lindbery's permit but that you grant him a period of- time,- I-suggest:6 months.•We have this construction season, to comply with•it. That would be the first-. opportunity or first time that, if Mr. Lindbery is permitted to work with staff, that he will have, can't have any more excuses about:time but we really haven't had the type of opportunity that I think we should have. We're talking about over a quarter of a million dollars investment in this property by Mr. Lindbery. It's not insubstantial. It's a significant matter to him and to simply say your land has become, by virtue of a zoning change, farmland, is simply unfair. 1 Mayor Chmiel: Thank you Jeff. Maybe I'd like to call on Mr. Kirchman to make some clarifications of some of. the things that had been response to your letter, which was May 14th concerning the plumbing plans and permit applications. Maybe I could have Mr. Kirchman go through some of these things that are here. I know you were before us just not too long ago and we did come up with a conclusion that there was a timeframe that we were going to allow. But it seems that from.the things that I have read here, and you indicated there is probably nothing that is indicated about when a conditional use permit was granted and when it expires. There is a section within our own code that does cover that, which is 20 -236. And I think everyone is fully aware, at least the applicant should be fully aware as to what that is as well. So with-that I'll just let Mr. Kirchman cover that part of it. ' Steve Kirchman: I'm responding to the letter that Mr. Carson sent to the city on May 14th, and I did not have time to get a memo out and get that in the packet. I wasn't around at the time and I wanted to respond.to his letter. As a matter of fact I was in the store the other day and I picked up this and to be honest with you, I think there's -more factual information in.this than there is in this letter. It does upset•me.• I:went through the files and looked at ' everything and point by point. The letter from Mr. who applied for a plumbing permit stated.that well let me back up a little bit. Mr. Carson's letter stated that he was mailing the plan that was submitted for permit 11 application, and that's not the plan that the city has for permit application. I've enclosed the plan that he submitted and you can see there's differences in the two plans. Item number 2. Mr. Stolp's permit application #2770 was made in October, not in June. We went through the old permit'files.and were able determine exactly when the application was made so his time line's quite a bit off on that. Item number 3. Staff would -not have made any requirements as f 1 Mr. Stolp maintained in his letter in June because there was no permit. If 21 City Council Meeting - May 24, 1993 staff had made any requirements, they would have issued a stop work order which would have been staff's response at that time because there were no permits and there was not even a permit "application until October. And the last item, item number 4 that I've got a problem with in the letter is Mr. Stolp contends that the plumbing permit was refused because we weren't familiar with flammable heat I or radiant heat and I will admit, the permit was refused but for many other reasons, none of which include those. Our last contact with Mr. Lindbery was in October of 1990. We did not issue stop work orders although he was in violation of a number of the conditions on his building permits. We did invite him to come into the city. Meet with the Planning Department and try and straighten things out and we never heard from him again. Really that's about all I've got II to add. You've got my memo in the staff report, if you've got any specific questions I'll be glad to try and answer them. Mayor Chmiel: Okay, thank you. We'll go back to Council with some discussion I to see if there's any questions that may be there. Of the applicant or as well as from the inspection department. I'll start out with Mark again this time. I Councilman Senn: _Gee I was hoping you didn't. Councilman Wing: Why don't you make a motion we start with Mike. I'll second I . it. Councilman Senn: I just, I don't know. It's been before us before. I guess even before me, more often than that because I've been on the Board of I Adjustments but I see a lot of words going back and forth. I see no actions and most of the words going back and forth don't follow the documentation. I guess it's just my feeling at this point to move approval of staff recommendations and findings and get on with this. I think we've wasted enough time on it. Councilman Mason: From what I understand from the information I've received on this, I'm concerned about Mr. Carson and his continuing talking about attitude. I This was deleted from the agenda 2 weeks ago because information wasn't here. Either due from, why was it deleted 2 weeks ago? Wasn't it because of information we were supposed to receive and didn't get? II Sharmin Al -Jaff: The Planning Commission requested that the item be scheduled for today. It was a mistake on our part that we put it earlier. II Councilman Mason: Okay. Alright, fair enough. I take that back. With what Mr. Kirchman said, I'm looking at these two plans and was it an accident that the wrong plan was sent over to us originally? These two plans aren't the same II and why, I don't. None of this jives to me and I get the feeling we're not being, we haven't been dealt with honestly. And I have some problems with that. But I'd like to pass for right now but I may come back to this, if that's okay. II Mayor Chmiel: Sure. Colleen. Councilwoman Dockendorf: That's alright, I'll pick it up. I guess when you're II arguing an issue back and forth and your arguments are weak, you retreat to attacking your opposition and that's exactly what it is when you start talking about attitude. If that were the attitude of the staff and of the Council, you II wouldn't be sitting here. This would have been settled long ago. We tried to • 22 City Council Meeting - May 24, 1993 work with the applicant. A conditional use ermit is issued and P it's an exceptional use and we expect applicants who come in with conditional use permits to be exceptional citizens in our community and that is not the case here, and it's been thoroughly documented and we don't take this issue lightly. We don't revoke permits like this and cease business in our community and we don't take that lightly. So we've looked at this issue over and over again and I agree with Mark. We've spent way too much time on it and I'm ready to move tonight and get it done with. Councilman Wing: Do you have something significant to add? Mayor Chmiel: Well the only thing that I'm looking at, I think if we do go through the process and deny this, I would say that we should move to direct staff to prepare findings consistent with denial. With it so they're supportive enough to not entail any other kinds of proceedings that might come forth - afterwards. So with that Councilman Wing: I would just ask Paul. Other than denial, is there any other resolution in your mind? Paul Krauss: I don't know what other options there are. Yes you can, if you want to give them a time period to see if in fact he can comply with all the conditions, that's a possibility. Based on past performance, I couldn't tell you that it was going to be successful, but it might be. I really don't, the issue of whether or not this is a permitted use in the district today really isn't relevant to that discussion but this has been a tough one for the city to deal with. We're comfortable with the recommendation. Councilman Wing: Okay. The CUP is #88 -11. That's 1988 and in '88, '89 and '90, maybe this was an arguable point and maybe something should have been resolved in '88, '89, '90, '91. But it's 1993 and this Council's kind of pro - city, pro - development. Clean things up and let's get on with life and start thinking in the 90's. What's changed in 4 years? I think we're taking a harder stand on contractors lots and it's•not something we want in the city. I think this permit's just plain run out. At issue, 1988 it was current. '90 - '91 it was an issue but it's 1993 and so I guess I'm going to support Colleen and go along with denial. I sided with him last time and nothing's new. It's the same arguments and I guess we have to get this thing resolved once and for all. Mayor Chmiel: I guess I, everything's more or less been said. Through the ' process we've tried to work with the applicant and nothing has really been resolved. I think that I would go back now to Michael to find if there's anything more that you'd like to add to what your was previously. 1 Councilman Mason: No. It was enlightening to hear all the comments from the rest of Council. I don't think we take this, well. I concur with Colleen's comments about not taking this lightly. Shutting down I think is a big deal but I would also agree with what Richard said about I don't, I think feet have been dragged on this and I don't think they've been our feet and I think we've tried to make some accommodations and I don't, I have not seen anything, so I concur with the rest of Council. i 23 ' City Council Meeting - May 24, 1993 11 Mayor Chmiel: Any other discussion? Zf hearing none,_I'll ,call for a motion and that part of that motion be to move to direct staff to prepare .findings consistent with denial for this project. Councilman Mason: So moved. Councilman Wing: Second. Councilman Mason moved, Councilman Wing seconded to revoke Conditional Use ' Permit 188 -11 for a contractors yard at 1700 Flying Cloud Drive and direct staff to prepare Findings of Fact. All voted in favor and the notion carried unanimously. ' DISCUSS OFFICIAL MAPPING OF EXTENSION OF NEZ PERCE DRIVE AND REALIGNMENT OF PEACEFUL LANE. Paul Krauss: Mr. Mayor, this is a more difficult one I'm afraid. We've really ...to ask for some guidance relative to the ultimate extension of Nez Perce. Some 4 years ago when Vineland Forest plat was being reviewed, we looked at alternatives for access in the area. One of the original proposals mentioned by staff was running the road straight up Pleasant View. That raised a lot of concerns with the folks who lived on Pleasant View relative to traffic and we II - looked at alternatives to that that could gain access for a relatively large and growing city neighborhood. Also, keeping in mind the traffic concerns. We looked at a variety of alternatives. Other means of accessing that area, we outlined in purple. Originally Fox Path was supposed to be extended over to the east. We looked at that. Unfortunately Fox Path was platted before the city had topo maps and it runs over a 60 foot hill. Even our engineering department couldn't make that one work. We looked at, there's a 50 foot right -of -way that ' goes back to Lake Lucy Road inbetween what ultimately I think has now got 2 houses on it. There were grade problems there. It didn't resolve the access concern. It didn't, well it raised questions for the folks who lived on Lake ' Lucy Road. We came up with a series of alternatives, and in the interest of time I'll only show you one of them. Alternative 3 I believe was the one that the City Council approved. What it basically did is it said that Nez Perce should be extended out to Pleasant View in the manner outlined here ' incrementally as properties were developed. And that was, it was under that guidance, under that understanding that Vineland Forest was approved. We put a temporary barricade up and Sharmin, you can show them where the Troendle border is. We put a temporary barricade up right over there. It had a sign on it that said, this road will be extended. I'm pretty sure there was a notice in the chain of title for each lot saying that this is going to be occurring. And ' that's the way it sat for a period of time. Year, year and a half down the road Mr. Beddor, who was one of the primary proponents of the street, through option of Vineland Forest, acquired the Troendle property and worked with us on developing it. The Troendle Addition was also approved under that alternative 3 guidance. Basically the alignment of Nez Perce was set aside, taken in that subdivision. Was built to serve part of it. During that process a lot of the neighbors who lived on Lake Lucy Road raised concerns at the Council meeting, ' for those of you who were here at the time. Their concerns was that traffic, and Lake Lucy Road is a thru street. There's no question about it but that Lake Lucy Road was receiving what they believed to be an excessive amount of traffic and as more development took place with only one means of ingress and egress, 24 1 CITYOF 551 A\ CIIANIIASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 Action by City Administrator Endorsed_ ✓ D w Pr Modified__._- ' MEMORANDUM Rejected - Date S - - 3 -4 3 TO: Don Ashworth, City Manager Date Submitted to Commission I FROM: Sharmin Al -Jaff, Planner I Date 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 ' 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 , 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 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 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 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 1 I Mr. Don Ashworth April 22, 1993 Page 2 1 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 or landscaping. A proposed screening plan shall be submitted prior to issuance of a 1 building permit. - 2. Hours of operation shall be from 7:00 a.m. to 6:00 p.m. Monday through Saturday. Work 1 on Sunday and holidays is not permitted. 3. Light sources shall be shielded. 4. No outside speaker systems are allowed. P ' 5. Compliance with the conditions of MnDOT, including installation of a right turn lane and a left turn lane if required by MnDOT. 1 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, 1998. 1 8. Protection of the two septic system sites during construction. 9. Installation of a holding tank. 10. The building must be sprinklered. 1 11. Provision of one handicap parking space. 12. Contractor's yard activities only as defined in the zoning ordinance, are permitted. There 1 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 1 Department of Natural Resources and the Watershed District permits. 14. All the existing buildings shall be moved off -site and disposed of properly. 1 1 Mr. Don Ashworth II April 22, 1993 Page 3 15. The erosion control plan shall be revised to include check dams at 100 foot intervals in 1 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 out -fall shall be revised to include a submerged outlet detail in place of the , wooden skimmer. 18. Submission of a vehicle inventory list. I 19. No heavy equipment or machinery shall be operating between 6:00 p.m. through 7:00 a.m. 1 20. No shipping activities shall originate on site. I 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. Lindbery does not need to construct a building on this property to use the property for a contractor's yard. Finding: This statement is not entirely accurate. The contractor's yard was approved by the 1 city as a Conditional Use Permit. Part of the proposal was a building to store some of the equipment. This was never constructed. 1 2. Mr. Lindbery has used his property since receipt of the Conditional Use Permit as a contractor's yard. 1 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 I 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 1 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 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 1 1 Mr. Don Ashworth 1 April 22, 1993 Page 4 1 occasions as part of our conditional use permit review procedure and never observed any type of activity taking place at the site. 1 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 1 property would be sensible for policing and safety protection both to Mr. Lindbery and to the City.) 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 111 conversation ever took place. 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. 1 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 1 contractor's yard. Finding: Outdoor storage in a front yard is a prohibited use in the Agricultural Estate 1 District. 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 1 1 1 Mr. Don Ashworth 1 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 I 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 1 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 I 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 I Y g P g g Y Y 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 I consider revoking it. The public hearing at the Planning Commission satisfies Mr. Lindbery's due process concerns. I 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 1 April 22, 1993 Page 6 1 had submitted plans to the Building Department for review but the city refused to issue the 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 1 place since Mr. Lindbery applied for his building permit (Attachment #1). Chairman Brian Batzli requested tabling this item to allow the applicant some time to produce 1 a copy of what he had submitted to the city, however, the majority of the commission felt that 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 1 of the Conditional Use Permit. The motion passed with a vote of two to one. I PLANNING COMMISSION RECOMMENDATION The Planning Commission recommends the City Council revoke Conditional Use Permit 88 -11. II ATTACHMENTS I 1. Memo from Steve Kirchman dated April 27, 1993. 2. Letter from applicant's attorney dated May 14, 1993. 3. Planning Commission minutes dated April 21, 1993. I 4. Staff report dated February 18, 1993. 5. Conditional Use Permit (88 -11). 6. Letter from City Attorney dated October 29, 1992. I 7. Zoning Ordinance, Section 20 -236. 8. Letter from applicant's attorney dated February 15, 1993. 9. Letter from City Attorney dated January 13, 1993. 1 10. Board of Adjustments and Appeals minutes dated February 22, 1993. 11. City Council minutes dated February 22, 1993. 12. Site plan approved September 12, 1988. 1 1 1 1 1 . 1 1 CITY OF CIIANIIASSEN 690 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 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. ' 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 I LO PRINTED ON RECYCLED PAPER 1 Sharmin Al -Jaff 04/27/93 Page 2 11 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 ' 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 1 1 1 1 1 1 1 1 1-- - 1 • • COMMERCIAL & INDUSTRI CITY OF CHANHASSEN -,- -' • _ BUILDING PERMIT APPLICATION-,_ ;. ▪ - -•-, ..-.:•-.:1. T. . .. - - : GENERAL' INFORMATION - - - _ = . .• rr ' - - - Date: • S 11-1989 : ,., - " :- -f • . .4`4; P 9 :., = Zonis.,• f « ▪ .:., . °;, _ _ •" x T g Di - _ • #� z' ' 'ti :� � ^- A areas: 17 F • ou - - :. . �- ,. - Fly Cl C , D'r4?;.- Chas.k;�•� ,> r, i , .;. , _r.:St,..wr., -•.:�. ; :). _ • ` =_ : Y -; a,. s; ':'r .. � ': .. ;Y ' .: � - -_ . - - - .�; ";•s. =e . a•a <_ _ • �� �y� ^; aa ?: �:�+r`". r�: - ' , ' ' :.h'; -�s_ '- , pit.: y _ _ _ _ Alter: :-�, • -i ;' - -. ' � > - - _ ,- Repai r =�' >: � -.. ; Additio ▪ n: r � _ :,'`•r � =-.� � _ •� - : _ `l- F ,.... . • :c> ;t _ , ti ..,� .- c.:rie'r "y - °` - �r'n+- "' :a`,.; `-t- - ,�• _- Ha 'L er 7,,' ,.. g?.; r �. ,-:§ i .._• : - Addressi .6901 'Ave �,. , s: Y,. � �Y .. _ , �: Maloney . „'Hopki ri s { ,. _ Mn ., :55343x ;k - :•a : --:yam=: .:>r =:_ •,. _ te ; mot v. - ^,• .� . -- . as. c -� - • . to rs - Sd _� ' z�, ;__ = 1 , .`4, < z mot '�` r 4 ▪ �:t 2 ; ; 1,7 ; ; N. T ? - . �' -; ti_ - ,; °�:) `�''"-� • :`, r•• . i � f! > -.:... Address: , f y ,< s.� _ ::.,,. • •y.� - p nona: 938, -957 Lot No: _ -- - - t J, .; � - ::, Block No : • �Sub d i vj si r, � /Y R - . l / - �•,, , : : .,.,, ,. -. r. _ - Pro Identification_ 25-0340400 ;`� : =. �,, �... p y c ation No: 25 03 4 0 4 0 0 . .:r.- ;: .> 1 -' : 3 - - :.. • '•-;'..,‘ ` '''.f, .• � ± ; S No: ,' . 160,0 '�N } == s an "v alue: 0 { _ � ' . _ .. �� - - �' - Ld .Buiidin Value. 9 0. -` 1 . 1 9 /y- Acreage: 40 `;� - 'Estimated Completion Date: -' - - `� ; r`s' -'- - d e _ •-_- ._.. _ ; ` .� ' Intended =0a_ e of Building:' T ' _ ti Building ._ ' 70 X 100' ▪ .- . - ' '. = X • - _ - - - Dimensions: - ', `, Area 'Square ,Peet: t - Type of Construction: 1 - II-FR _ .. II IHR , - II-N":- III -1HR `- - III -N' •_ :IV -HT V -1HR . _ _ • . Type of Fuel: Gas: Oil: X Electric: - s* ••••'," Conditioning:_ Yes- - - -.`- No X - ,- � . _ T of Heat:. Water: X Steam: la _ Forced Air: - Solar Supplement: Yea No „Is Building'Sprinkled: Yes X No What Materials will be Stored: Construction Equipment & Supply: - Is a Variance Required: Yes No X If so, has a ± variance been approved: Yes No : I ********************* iF* ** * *a *** * **s * ****** * * * ***** **** ***4 ** * *** * * *** f **** ** ** *Hr+•R + ***** -14 - - THIS IS AN APPLICATION FOR A BUILDING PERMIT AND NOT TO BE MISUNDERSTOOD AS THE ACTUAL BUILDING PERMIT. 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. - - - . - _ } - - 6901 Maloney. Ave Hopkins,Mn.55343 _ 4 �l � Address /�� 938 -6610 - 938 -9570 • A licant,'_ Signature _ Telephone Nunber.(Work) (Home) ** * * * * *** * * * **** *** * ** * *** * * * *.1.*** * * *** * * * * * * * * ** ** * *** *+► **r********* ** * * * * * ******* ** *s 6,J ( APPROVALS: f/-. L C .4 e.4 ' v' ^ ( fr- A / .4 � A C - � / / ' / � Fees. s��/g/L, • L -.r Buiidin Offi - - Permit Fee $ (03(>.V ' " .:.� 4 . Plan Check Fee - '�Z a, - r State.;Fee f% O O ire =ra , - SAC - -- -:- G Sewer '-'7'7,--1'•-•-••••••'''... Park Dedication'Fee.: ^� �� Trail Dedication Fee Ci Plsrnfer Planning Case No.' Water Unit' �i ,....14 J411 / > = Sewer Unit _ _ - e A ..:4.... Water Meter •L �� ' TOTAL° Parka creation - RECEIVED : _ - SEP 11 1989 , - u4rw r r�ti(vs Y- $� $tom . Fw L �� �L,,��v `^� C� A�,r - " = owiwny QIIU y v1rwwn 690 Coulter Drive — P. 0. Box 147 IMP, Chanhassen, Minnesota 55317 Sf , PE RI-Tr Cis3.Y I 612 — 937.1900 APPLICATION FOR BUILDING PERMIT CITY OF DATE 10 1700 Fi 1,d .nave CHANHASSEN EST. BUILDING VALUE $98,000. I DE RESS `J ✓—v Name Berry j► ZONING DISTRICT Z Address 6901 Maloney Ave. RES COM X IND. PUBLIC far City Hopkins, Tel. K9 9570 NEW__ EXISTING P.I.N Name Barre 1$tted C SUBDIVISION �� z0 v Address a LOT BLOCK City Tel. No. X ereby acknowledge that I have read this application and state that the SECTION NORTH HALF SOUTH HALF tformation is correct and agree to comply with the - nhassen, Minnesota $ 630,50 ances and State of Minnesota la, - !ulati /�:ing construction. in Building . attire of IF Plan Check $ 40983 ittee / ' l/ � 49.00 . CALL FO' f LL INSPECTIONS LIST /I Surcharge SEA PETIT ONLY $ I 0 BUILDING CARD S.A.C. $ n/g PHONE 937.1900 FINISH SPACE 75.00 Sewer Surcharge SARA rum $ 1 DO NOT WRITE IN THIS SPACE PERMIT ISSUED Park Dedication $ Trail Dedication $ • ��S APPLICANT I On T the express s condition that all work shall be done in accordance W ater On U niTUTR with the ordinances and building codes of the City of Chanhassen Sewer Unit T � Egon ��I* �� and the State of Minnesota. This Permit is void if work is not com- menced within 120 days or abandoned for 120 days. Water Meter • $ I 8ui/8ing Inspection Division / �� l / Public Safety Dedicat' n ! j Li7 $ BY r 7 � Other Fee t 1 �� $ i P) 1164.33 1 _ TOTAL FEE PAID 1 11- , .. • 1 �` 1 -. _ . 1 • 1 . 1 .. MO NM MI MI IIIIII IIMM • II= MN NM MI • I IIIIIN MI IIIIIII = = MN r • • • 4 -• 4 4 4 4 . 4 _ . 100 - 71 • ou /OUT of. con+cRgre i 0— ;V A- lw-it-4(4-..., E..- 0- 1 F6Lt- . 0 * ..L. �r aN tc : li o t ") /sly ,pry/ w 7 i ' r L�i� -L" u a MAlnl I i 2 a- 3. .1 d.• ° / 010 0 ' I Bear.. I:It APPROVED I h n r sb7 eertitY that thL Dlan, apeei- r O r sertioo,or • raP •� v's1"!r� b7 ] �I � or u°drr m7 w�c sunrrvlewn +rid chat * 0 C��L `� y 3 I 1 am s adY lteglscert V lk°tewi. na. . l c� :la i 0 y+ BnYluenr wed u co taws of the 31414 � _ si / ' E n SUBJECT T• CO 'LIAN / { o f °dlnnWOla •' A ° �0 7/ /V6--- ; t /4 'v ; r WITH ; '/VD Fl.E i. 0 ° • //1/,C) � / Y f�L_ ���� `a 1�7 5PECTION/ � % %GII % % ► sa '° 3' ° 13 DAT / °� FI • DEPT. DATE J 0 ix il / /-- dr - - J/�� / `- / / ` _ - t goy. un16� t —I-- c 1 r 141414,10E , —QCil //:&-,0. A a J LEA/.1- To L• 1e i O: O O N ( 2O'. LO' 14 1 -4 O V ._ N u , 1:1z.. O _o \ `o ( ..--' O- .. _ Q . /l/ / 1 I I =4► d Low,10G o i2' Sy � r�' /�" / n - 1 5![ ■ 19 - 6y2. 19' 8" 20' -0' / 9 =8- 19 •- 6 % 5 yi IZ' • 4o' - 3•' OUT /OUT OF Go/�cgere CO.- Q• OU/ N / T I n C44G. UM IN / 0147 or Go w.4 I00 - 'S" oV Gr{q LL Y Y• bEDGCOR STEEL. j I VERIFY ILNGTM AND WIDTH DIaENS TO HK gNS r IE518300 h 1 JH ANCHOR BOLT PLAN 0.t. j MN to-a7•89 E CHECK YOUR A DOLT • N trier. S RE! ABovZ Q j Llb.a SETTING /INNS IS U S T CERTAIN Drier. t REINS is io - - THAT THE GNENSIaN3 LISTED AGREE WITH (SEE AO -20F 2 FoN REACTIONS AND DETAIIi) • Load 494. 99 11 (SealejN M) paaABl of 3 • THE OWENSIONS ON YOUR CONTRACT Q1 ({EV. �F( I1 - 9 - 68 P.O. I D3-5154 • Q INSPECTION REPORT , 5 -1. INSPECTION REPORT 1 CITY OF CHANHASSEN, MINNESOTA CITY OF CHANHASSEN, MINNESOT / 937 -1900 9 -1900 ^ECTION FOR /U2L �',2 p LCJ INSPECTION FOR ,di L � DATE /� / TIME INS C DATE TIME / e TIME & DATE INSPECTION DESIRED TIME & DATE INSPEC ION DESIRED / �] /� ADDRESS /76° F : ( ( 7 t- C (0 k 0 I)( PERMIT NO. 3 C(3 ADDRESS/ /�� I eZ JRMITNO. `� I--(ct , ni A._., n 6..c r r- • CONTRACTOR LUG La �c-1.-('Q C� CONTRACTOR �L'L -4..._... .. A� TAKEN BY. CZ I TAKEN K WATER METER NO WATER METER NO - -- REMOTE NO REMOTE NO. LOCATION LOCATION CORRECTIONS CORRECTIONS R aiz/1...D G.04.3 w t ... 12 Nt 21 P- T 2` 4 c�;tilr — 4- cu) C Q DiC .1 ) 6 eoe_t-t,rz-- .-„ .-___C /Nc7( p gds. q ctitii J 3 S c-c. R-N -1-- ----- 2 1 i t ..51 I 3 2" 6Z it LL, e r C4G4 Q w i.S`i .Y 4 '1 Ci b� 1,d �0�u� 4 '‘, Pr� -e JO 1 /N5 — fu/ G c____1_, r - c) Loy\ ri Wc 1 If no corrections are listed above, a royal is hereb If no corrections are listed above, approval is hereby given to proceed. You will be in PP y giventto proceed. You will be in violation of the ordinance if you do not call for the proper inspections and make cor- violation of the ordinance if you do not ca or,the prope inspections and make cor- recti n as called for. rection as called for. , 1) lia___. )0 I D a Time Ins ector D 4' G e Time • inspector _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Mil — MN NM NM W , _ INSPECTION REPORT _ i/ I _ INSPECTION REPORT r CITY OF CHANHASSEN, MINNESOTA CITY OF CHANHASSEN, MINNESOTA j 937 -1900 �oo�P ` 937 1900 INSPECTION FOR sygLiC, i b1 d DATE TIME INSPECTION FOR 'i`ovrONe DATE 1 z. TIME TIME & DATE INSPECTION DESIRED I Q o� 1 V/ ' Z 44 TIME & DATE INSPECTION DESIRED C I 3 0 1 / 3 We_sl ^'a L { ADDRESS I 0 I` b I kl, C t 1 ' PERMIT NO. ADDRESS , \0O CIti.fiino rAc I n Oi PERMIT NO �SLI3 CONTRACTOR r r 1-i N (Ape r r L{ IV{-- TAKEN BY. CONTRACTOR �CAIe, M..4 (,c�Lt CSA0,- o.-I•- TAKEN BY:. WATER METER NO. WATER METER NO. REMOTE NO. REMOTE NO. LOCATION LOCATION CORRECTIONS�CORRECTIONS 1) &I i, /N-- CA Al cl F 44 ii b Ai_e_ta f_Pr elfp ei .z. �) vor lc;vi k� 1 1 I f' p d/+ 1� IIG �� 3 f p 1 - e_t -.,P vA I I li,yk c ( j ot _�o.-. a 1 aNs GI.-T4. .0 1 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 g' n to proceed. You will be in 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,. ier ' spections and make cor- rection as called for. rection as called for. ' I 1 Oi 2 2/90 /'I ob 4.6* �'1 • `i Date Time I�aspector Date Time i •I Spector 1 CITYOF 1 CH AN HASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 1 (612) 937 -1900 • FAX (612) 937 -5739 MEMORANDUM TO: Steve A. Kirchman, Building Official FROM: Mark Littfin, Fire Marshal /4, 1 DATE: April 28, 1993 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 1 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 1 1 �a 4s � PRINTED ON RECYCLED PAPER 1G1 C ITYOF CHANHASSEN • •:, • 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 I (612) 937 -1900 • FAX (612) 937 -5739 1 MEMORANDUM TO: Steve A. Kirchman, Building Official ' 6 FROM: Carl Barke, Mechanical Inspector DATE: April 30, 1993 SUBJ: Harry Lindbery 1 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 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. �� PRINTED ON RECYCLED PAPER 1G Steve A. Kirchman April 30, 1993 Page 2 Mr. Lindbery also discussed at the Plannin g meeting Commission meetin the alleged problems with the flammable waste separator size and location. The minimum size permitted by code is 1 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 ' 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 must be located inside the building, and the holding tank must be located on the exterior of building. ' 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 ' 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: ' 1) If an inspection was performed, it would have been to halt any work in progress until the proper permits were obtained. 2) All knowledgeable inspectors & plumbers know a flammable waste separator is required to be installed on the interior of a building. ' To date, no plumbing permits or HVAC permits have been issued and work has not been allowed to proceed. 1 1 __.. .. .. .....:...:.::. r.: 11-1 CHANHASSEN PUBLIC SAFETY DEPARTMENT INSPECTIONS DIVISION DAILY ACTIVITY LOG Name: Steve - .A. 1 ;jrch �n Date: 9 . - � � 1 19z. Day: Time Time Arrived Cleared Address Ins Ap. .ection Comments Not A.. c�D 3v t '. L' 8:00 • • ., -. 8:30 • g3 o — C � r • <<a h n t r e~", 9:00 15 I( 7S° c�`� 1, co �. 9:30 10:00 10:30 ;1:00 1:30 2:00 2:30 :00 :30 2 L y .nr•ty 00 30 0 r C\(,1-1 .► o r I c • 00 c v c01 Kprs I 30 Lhi ; - rZ n' o r 30 3 4.0 3o I oh Start.: 1 CHANHASSEN PUBLIC SAFETY DEPARTMENT 1 J INSPECTIONS DIVISION DAILY ACTIVITY LOG 1 Name: uQ \& Date: t (a )9 I Day: 11 Time Time Arrived Cleared Address Ins•ection Comments m N o II E73 `j b►^ed 0 2D t A,. , 1 i i t i;/ 30 c ) .° )Z Il tP) -IuF- C.r -P1C, ee • . lr ' In 1 2 uo tr■cc l 1'^. 1 I ).? . 7° ( IAKC 1A � • 1 3o 00 a ) a . .. - I 0 I > m 2 26 I all LA — A rlc s •.. war< • 7,4° L5C) '(p31 r° •f�rcJ� ' )S Z25 Z 1 1 _` . )0 305 Arc') . C_hoS-Q I oros;yvN C`E! 1 I MILEAGE - - -- Finis Starth: : r _ MIN MI= IIIIIIIIIIIIIII IMIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII MI • • • • MI MI MI - INSPECTION REPORT - INSPECTION REPORT Tau CITY OF CHANHASSEN, MINNESOTA CITY OF CHANHASSEN, MINNESOTA 937 -1900 937 -1900 INSPECTION FOR DATE TIME INSPECTION FOR It I e . a 1 S l�O1' Q DATE TIME ._ TIME & DATE INSPECTION DESIRED 2 �d S') 2 — TIME & DATE INSPECTION DESIRED a ` ADDRESS I iod I t C PERMIT NO. ADDRESS ■`I 00 . � ` ( i t l a Jr PERMIT NO. 4:41i CONTRACTOR Rat L j ,..%OU,.n 1 "3 .a ril.-- TAKEN BY. CONTRACTOR 1..t h a 1 2t r L._ TAKEN BY. ___ WATER METER NO WATER METER NO REMOTE NO -- REMOTE NO,_ _ _ LOCATION LOCATION CORRECTIONS CORRECTIONS j ono w yr 1 .32_i tr.� d01,4. l - . _ _ y2 1 t ;2 ) cID u. rc4 co,,,c 44 i ft S2 c � -1 ` oh 5-1. Lf I *i^Qr' I f 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 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 for the proper inspections and make cor- rection as called for, rection as called for. ' 1 -9 Time 30 �s . e 2 4 k Inspector ` p .) ate Time Inspector INSPECTION REPORT CITY OF CHANHASSEN, MINNESOTA 937 -1900 INSPECTION FOR - CI ) e ) y. DATE TIME TIME & DATE INSPECTION DESIRED 1 °L) Z I 1 173 I r ADDRESS d11 \ ♦ _ + . ' PERMIT NO. • CONTRACTOR___ Ci L1 hd 11.1 TAKEN BY WATER METER NO U REMOTE NO. LOCATION CORRECTIONS t I 0 1 1 5 ) h 5 I � •]-1 0 I d 1,C. el L f t' ('1 ho 141 3,5 . I o ca a 1 4- ct-e,h 1 -1A -t h.* , - �1 • 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 O to Time Inspector on as No ow Elm mrs me:'INI um me um I= ow ma ma we 1 Planning Commission Meeting April 21, 1993 - Page 1 1 PUBLIC HEARING; CONSIDER REVOCATION OF A CONDITIONAL USE PERMIT FOR A CONTRACTOR'S YARD II FOR MR. HARRY LINDBERY LOCATED AT 1700 FLYING CLOUD DRIVE. Public Present: , Name Address Harry Lindbery 1700 Flying Cloud Drive 1 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 tha 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 II 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 naturi 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 II 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 II 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 in 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 11 1 Planning Commission Meeting II April 21, 1993 - Page 2 II 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 II 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 I 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 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 _ II ' 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, II 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. I Jeff Carson: Do you want me to sit down? I 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? I Conrad moved, Harberts seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. ' Batzli: Diane. I Harberts: I'll pass right now. Batzli: You'll pass? 1 Harberts: I will. Batzli: Okay. Ladd. Any thoughts? Any comments? II Conrad: You didn't ask staff for their position. Are you doing this differently? II Batzli: Well, we got the staff report up front. Conrad: I guess we did. I guess I'd ask the applicant one question. You I 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 II 1 Planning Commission Meeting April 21, 1993 - Page 3 1 there was something being done on your parcel that was not permitted whic 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 yard per our permit. So maybe you can tell me why that was not, why you II did something that wasn't permitted and why you decided to continue doing that. Jeff Carson: One of us will try to answer either one of your questions. 1 Harry Lindbery: We have ship containers. They're 8 foot wide, 8 foot ' 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 thl 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. The 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 man was complaining and there's just one there now that we have. It's II 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. Conrad: But again, the contractors yard we kind of try to understand 1 what's going to take place there and we put it on a piece of paper so we 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 b 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. 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 II 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. 1 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 movin� them down and around and they said get them off, I think that was in error 1 1 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 I 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 111 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. II Planning Commission Meeting April 21, 1993 - Page 5 II Al -Jaff: I didn't see anything that allows storage outdoors. Batzli: The first condition says that all outdoor storage will be I screened which seems to me to say there's going to be some outdoor storage isn't it? 1 Elliott Knetsch: Mr. Chair? Batzli: Yeah. 1 Elliott Knetsch: Maybe I can take a shot at that. I haven't seen those Minutes of the original approval either. What I'd like to say is that I 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 Ci 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 an contractor activity until he went through this 20 item checklist and 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 l the contractor yard. Batzli: So the illegal nature of the storage of the containers and the I 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? 1 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 al 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. I Harberts: And it doesn't allow for this? Al -Jaff: No. I 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. 1 Farmakes: Was the zoning changed or is it just a conditional use permit for that application? I 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? Al -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. 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. Planning Commission Meeting April 21, 1993 - Page 11 the property if he sold it to someone else would still remain as ag, correct? Al -Jaff: Correct. at Farmakes: That would not be transferred. That use would not be transferred with that sale. Jeff Carson: Well yes. A conditional use permit, if it's still on the property would transfer. Farmakes: If it was found to be valid. Jeff Carson: Sure. k Farmakes: So what he's hanging on here is that this particular piece of �! property is more valuable because he has a conditional use permit? Jeff Carson: Absolutely. And it's significantly more valuable because. 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 do you disagree with that? Jeff Carson: I would say, you mean in improvements to the property? Farmakes: Correct. 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? Jeff Carson: No. Farmakes: Or are these just for that site? Okay, so then it was site specific to this particular piece of property? Jeff Carson: Correct. 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. Batzli: Well, I don't even see that as an issue in my mind. Farmakes: I was talking about a hardship issue. If something is. Planning Commission Meeting April 21, 1993 - Page 12 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. 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. Harry Lindbery: Yes I did. Farmakes: You did? 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 by conditional use permit. Farmakes: Okay, but the person that he purchased the property from, did 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 contractors yard by conditional use permit on it. Farmakes: At that time, couldn't you obtain a conditional use on any piece of ag property? Jeff Carson: Sure. Well I don't know. I can't say sure. I think so. 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 25% of the original purchase price without the ability to use it as a contractors yard. Pure farmland in other words. 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. Farmakes: I can understand that argument. Krauss: The only place any kind of a hardship is spoken to in the 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. 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 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 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 and we hauled out several truckloads of trash. Batzli: Did you work with the City at all during that time period? 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 heel 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. n 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.. t He crushed his leg. I Harry Lindbery: Yeah, I did have an accident and I was laid up for about 12 -13 months. �I Batzli: 5o you personally couldn't do anything. Harry Lindbery: No. But if they would have gave us the okay I would have 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. Batzli: Okay. Paul. Krauss: This is all quite interesting but it doesn't jive with any of th 1 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 I 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 vI 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, I what is our standard that we're looking at and what should we base it on? 1 1 Planning Commission Meeting 11 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 ' 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 I 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 I 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. 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. 1 Planning Commission Meeting April 21, 1993 - Page 17 1 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 jusll 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 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. 11 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 ' phone 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. I 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 1 Planning Commission Meeting April 21, 1993 - Page 19 1 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 one, but the site was used. It bothers me that we asked for erosion control Man 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 becaus 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 i 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, basell 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 II 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? I - 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 decision but that gives you a couple of weeks to come up with any necessary documentation that perhaps you should have been working on in P 1 fanning 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 forwardell 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 this recommendation of revocation to the City Council with the understanding that the applicant will be allowed to present any additiona evidence. Ledvina: Right. 1 Scott: And that's true with any recommendation we make. 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 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 II 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. Batzli: April 28th? , Scott: That's a week. 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. 1 Batzli: That would at least give the applicant a little bit more time. Al - Jaff: 24th of May. 11 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? I 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 rant 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 Cou 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. 1 1 Planning Commission Meeting April 21, 1993 - Page 23 Jeff Carson: And when. 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 1 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. ll 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 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 all 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 11. something outside of what was really originally intended, I take that as 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 bell 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 applicant 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. Ledvina: Well they can send it back to us with what they want. 1 Conrad: That's why I made the point 3 times... rarmakes: Nobody's disagreed with you so far. 1 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 the conditions, and specifically conditions 1, 6, 7, 15, 16, and 18. All II 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 applicant 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 fo coming in. Jeff Carson: Thank you. 1 1 1 ' CAMPBELL, KNUTSON, TT & FUCHS, P.A. _ 1 SON, SCO _ _ Attorneys at Law Thoma, J Campbell (612) 452 -5000 Roger N Knutson Fax (612) 452 -5550 : I Thornas M Scott Gary G Fuchs James R. Walston i Elliott B. Knetsch I Michael A. Brohack Renae D Steiner January 13, 1993 1 Attorney Jeff Carson • CARSON & CLELLAND Brookdale Corporate Center v Suite 305 I 6300 Shinglecreek Parkway Minneapolis, MN 55430 Re: Your Client: Harry Lindbery Chanhassen Conditional Use Permit 88 -11 s • Dear Mr. Carson: II 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 • 11 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 AI 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. ! I 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: 1 RECEIVED " If the conditional use is discontinued for six (6) months, the conditional use permit shall become voidjlgN h 1993 II 4..11A Uf CHANtiH Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121 1 II Attorney Jeff Carson ' January 13, 1993 II Page 2 II : This section shall apply to conditional use permits issued prior to February 19, 1987, but the six (6) II month period shall not be deemed to commence until February 19, 1987." Mr. Lindbery has not conducted any contractor's yard II activities on the subject property at any time, other than illegal storage of containers and concrete pipes. Therefore, the I 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 II February 19, 1987. It does not have the effect of limiting section 20 -236 to permits issued prior to February 19, 1987. II 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 II 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 II 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 II to City Code Section 20- 28(b)(1) (copy enclosed). Your client also has the option of meeting with City staff II 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 II 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. 1 CAMPBELL, 4 SON, SCOTT I & FUCH T A. By: A .,.n l I n . IAM■ Elliott B. Kn.■c II EBK:mlw Enclosure cc: Don Ashworth 1 Paul Krauss Sharmin Al -Jaff . II II CITY OF CHANHASSEN ' CARVE. —JD HENNEPIN COUNTIES, MIN _.IOTA 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 1 2. Property. The permit is for the following described 1 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 1 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. 1 Subject to an easement for Highway No. 212 over and across the southerly 50.00 feet thereof. 1 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 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 1 conditional use permit is a criminal misdemeanor. II M 7 Dated: September 12, 1988 c� CITY - •ANHASSEN Z.__ ... i..... cr, ‘ : t 7 It`- Ma • --;.. ...o).; Ifif 11111 II By: Its Clerk STATE OF MINNESOTA) ) ss 1 COUNTY OF CARVER ) The f regoing instrument was acknowledged before me this I 'fday of , 197, by Thomas L. Hamilton, yor, and D n shworth, City Manager of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation. 11 1 r: 7 .. •' �, T • N tary P. lic / DTA t a r, My ccr -•.ss on e..; 1 .-91 / EXHIBIT A 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 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. 1 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 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. 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. Attorneys at LOW Tt,,nt.i. J (.. 1 !.11 (6l2) 452- 5C'C'0 R„_rr N Knot:on Fax (612) 1�' 555O Th N1 Scott Gar( U Fut.] ' JameN R. Walston Elliott R. Knet;ch Michael A. Rrob;icl. Rcnac l') titcincr October 29, 1992 1 1 Mr. Scott Harr Chanhassen City Hall 690 Coulter Drive P.O. Box 147 (%) Chanhassen, MN 55317 LJ 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. 1 CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. • � I 1 By: � 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 01992 CITY Or t;r1,1iNnM5SEN 1 Suite 317 • EailanLlaie Office Center • 13SC Corporate Center Cure • Ea.:an, N1\ 551'1 • \. CAMPBELL, KNUTSON, SCOTT & FUCHS, PA. Atnorncys at Law Thom.1, C;.unrhell (612) 452 -5O1?0 Ro�cr N Knutson Fax (612) 452.5550 Thomas M Scott Gary G. Fuchs James R. Walston Elliott B. Knetsch October 2, 1992 Michael A. Broback Renae ll. Steiner PY • 1l Mr. Harry Lindbery 6901 Maloney Avenue Minnetonka, MN 55343 _ Re: City of Chanhassen Conditional Use Permit 88 -11 Dear Mr. Lindbery: We represent the City of ; Chanhassen. 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, Conditional Uses. You are hereby notified that violation of the Chanhassen 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 ..../. A.4 AAA Elliott B.g'r► etsch EBK:mlw Enclosure cc: Attorney Jeffrey A. Carson Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121 STATE OF MINNESOTA DISTRICT COURT COUNTY OF CARVER CRIMINAL DIVISION FILE NO. STATE OF MINNESOTA (City of Chanhassen) Plaintiff, COMPLAINT - SUMMONS vs. FOR MISDEMEANOR OR PETTY MISDEMEANOR HARRY LINDBERRY Defendant, DOB: 6901 Maloney Avenue Minnetonka, MN 55343 COMPLAINT 0 • : Scott Harr being duly sworn makes complaint to th above- ' II 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 I 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 I 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 ' 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; I 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 the offense charge, I hereby approve this C p lai 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 I containers stored in the open on the Subject Property. The inspector also observed approximately ten round concrete pipes stored openly on the Subject Property. I 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 II pipes stored openly on the Subject Property. On October 28, 1992, the Subject Property was inspected by a I 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 I outdoor storage in the manner that it is being conducted on the Subject Property. II OFFENSES COUNT I - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section I 20 -909 - 0 - 90 days and /or $700 r 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 I illegal outdoor storage on the Subject Property. COUNT II - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 1 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, I then and there being, did wrongfully and unlawfully permit illegal outdoor storage on the Subject Property. COUNT III - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code 1 Section 20 -909 - 0 - 90 days and /or $700 That on or about October 28, 1992, in the City of Chanhassen, II 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 . . II CITY OF CHANHASSEN V. HARRY LINDBERRY PAGE 3 1 COUNT IV - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 1 20 -909 - 0 - 90 days and /or $700 That on or about July 15, 1992, and each day thereafter, in the City of Chanhassen, County of Carver, State of Minnesota, the I 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 j 1 • 1 1 1 1 1 1 1 § 20 -233 CHANHASSEN CITY CODE f (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. (Ord. No. 80, Art. III, § 2(3 -2-4), 12- 15 -86) 1 Sec. 20 -234. Denial for noncompliance. 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. (Ord. No. 80, Art. III, § 2(3 -2 -5), 12-15-86) 1 Sec. 20 -235. Permits not personal. A conditional use permit shall be issued for a particular use and not for a particular 1 person. (Ord. No. 80, Art. III, § 2(3-2-6), 12-15-86) 1 �." Sec. 20 -236. Expiration. 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. 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 shall not be deemed to commence until February 19, 1987. 1 (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 I advance of the city council's review of the permit. (b) Inspections will be conducted at least annually to determine compliance with the I 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) Secs. 20-238-20-250. Reserved. I DIVISION 3. STANDARDS FOR AGRICULTURAL AND RESIDENTIAL DISTRICTS 1 Sec. 20-251. Scope. In addition to all other standards required by section 20-232, the standards in this 1 division shall apply to conditional uses if they are to be located in agricultural or residential districts. (Ord. No. 80, Art. V, § 9(5 -9 -1), 12- 15 -86) I Supp. No. 2 1176 1 4- 1 CARSON AND GLEL LAND ATTORNEYS AT LAW 6300 SHINGLE CREEK PARKWAY, SUITE 305 JEFFREY A. CARSON MINNEAPOLIS, MINNESOTA 55430 TELEPHONE WILLIAM G. CLELLAND (612) 561-2800 STEVEN C. HEY FAX ELLEN M SCHREDER (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 RE: Lindbery Application lication Dear Ms. Al -Jaff: 1 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 7 272-" / Jjaffrey A. Carson JAC:nrz 1 Enclosure cc: Harry Lindbery 1 • 1 f 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 Y . j PP City of Chanhassen In September of 1988, Harry Lindbery, owner of the property located at 1700 Flying Cloud Drive, Chanhassen, Minnesota, and 1 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 1 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 identified above within the Code definition of a contractor's yard 1 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. 1 Before discussing the history of the building itself, I would 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. ' 2) Mr. Lindbery has used his property since receipt of the Conditional Use Permit as a contractor's yard. 1 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. 1 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 1 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. 1 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 1 f 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. 1 Lindbery has paid over $36,000.00 for building inspection fees, ' MnDOT fees and for the building shell itself. He has poured 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 1 1 proposed by Mr. Lindbery met all requirements of the Chanhassen 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 accident and was unable to do any work personally on the building project from June 1, 1991 to approximately June of 1992. But for the dispute between Mr. Lindbery and the former City 1 Building Inspector regarding heating, the building that is under ' discussion would be up and functional. The fact that there is no 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 forced to defend criminal allegations and a jury trial is set in District Court this March; additionally, Mr. Lindbery is required ' to appear before the City to defend the reasons his building is not constructed and, indeed, defend the continued use of his property 1 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 1 any factual basis or support, cannot be the basis of City action. Mr. Lindbery urges you to consider the above facts and to weigh the relative equities before taking or confirming any adverse 4 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 1 and unlawful. Staff has already concluded that Mr. Lindbery's use should end. There was no fact - finding hearing but mere 1 conclusions, statements made regarding the status of the property. Mr. Lindbery continues to use his ro ert for lawful P P Y purposes P contemplated by the 1988 Conditional Use Permit. We urge you to affirm his position. Respectfully submitted, CARSON AND CLELLAND 1 DATED: / ,5 Jef e , X'. Carson; ID #1543X Atney for Harry Lindbery 63Ot Shingle Creek Parkway Suite 305 Minneapolis, Minnesota 55430 -2190 (612) 561 -2800 1 5 1 EXHIBITS TO MEMORANDUM TO 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 ' 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 Exhibit 9 - Inspection Report dated October 22, 1990 11 Exhibit 10 - Notes attached to Conditional Use Permit dated October 23, 1990 ' Exhibit 11 - Planning Commission Minutes from April 19, 1989 meeting ' Exhibit 12 - Copy of Chanhassen City Code Section 20.237 Exhibit 13 Heating system brochure • 1 1 § 20.1 CHANHASSEN CITY CODE 1 Church means a building or edifice consecrated to religious worship, where people join together in some form of public worship under the aegis and direction of a person who is II 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, 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, 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. Class A wetlands means wetland types 3, 4, 5, 6, 7 and 8. In the case of wetlands adjoining I a public waters designated as lake or pond this class shall also include type 2 wetlands. Type 2 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 or pond nor within the one - hundred -year floodplain of a stream designed as public waters. 111 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 Con ference /convention center means a preplanned, centrally managed development con- taining facilities for business or professional conferences and seminars and containing ac- t 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. Conforming building or structure means any building or structure which complies with I all the regulations of this chapter, or any amendment thereto. Contractor's yard means any area or use of land where vehicles, equipment, and/or 1 construction materials and supplies commonly used by building, excavation, roadway con- struction, 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 I building used in conjunction with a contractor's business. Cul- de-sac means a minor street with only one (1) outlet and having an appropriate 1 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- sation is charged for the care of children and which is licensed by the state as a day care 1 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 i developable acreage of the site. Developable acreage excludes wetlands, lakes, roadways, and other areas not suitable for building purposes. 1144 1 EXHIBIT 1 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 i approval do not exist. (Ord. No. 80, Art. III, 1 1(3. 1-4(6)), 12-15-86) 1 Secs. 20-61-20-70. Reserved. DNISION 4. NONCONFORMING USES* Sec. 71. . 24 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. 1 (Ord. No. 165, § 2, 2 -10-92) Sec. 2472. 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. _J Supp. No. 4 - 1164 1 EXHIBIT 2 CITY OF CHANHASSEN CARVE. ...ID HENNEPIN COUNTIES, MIN _.,OTA II CONDITIONAL USE PERMIT 1. Permit. Subject to the terms and conditions set 1 forth herein, the City of Chanhassen hereby grants a conditional 1 use permit for: Contractor's yard activities 2. Property. The permit is for the following described property in the City of Chanhassen, Carver County, Minnesota: That part of the East Half of the Southeast Quarter of Section II '34, Township 116 North, Range 23 West of the 5th Principal Meridian which lies northerly of the center line of U. S. Highway II No. 212 and southerly of the southerly line of Chicago North Western Railway Company. Subject to an easement for Highway No. 212 over and across the II southerly 50.00 feet thereof. 3. Conditions. The permit is issued subject to the 1 following conditions: See attached Exhibit A. 4. Termination of Permit. The City may revoke the 1 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. II 5. Criminal Penalty. Violation of the terms of this conditional use permit is a criminal misdemeanor. II ;Y Dated: September 12, 1988 . � :;2:ssz TY • :.... crl l % . I I '- Ma • , J TA By: glif �V � Its Clerk II STATE OF MINNESOTA) - ) ss COUNTY OF CARVER ) 1 The f regoing instrument was acknowledged before me this 0 'day of , 1951, by Thomas L. Hamilton, Mayor, and Don shworth, City Manager of the City of Chanhassen, II a Minnesota municipal corporation, on behalf of the corporation. 1/13(jilL4 11 - - -% t r• J r-.,,= etary P lic .: . _�: ` , .:., - ETA M a . '.cs•an e. _ 1 5;.91 / 3 EXHIBIT 3 (2 pages EXHIBIT A 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. 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. 8. Protection of the two septic system sites during construction. I 9. Installation of a holding tank. 10. The building must be sprinklered. il. 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 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. 1 CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. Attorneys at Law 1 T: 1 Can,rhell (612145_ -K.;: R. \ Kr,llt•. Thom— \1 Sr' „ - - Fay (6121 4:•2-555,2 Gar. G Fuch• lam.• R .' a!•,.,n Pt. Eli, r B- Knrt•ch N1:ch.iel .A Br,'r act 1 Renae D Sit Iner January 13, 1993 1 Attorney Jeff Carson CARSON & CLELLAND Brookdale Corporate Center Suite 305 6300 Shinglecreek Parkway 11. 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 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.” 1 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 1 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. 1 Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121 EXHIBIT 4 (2 page' Attorney Jeff Carson January 13, 1993 Page 2 1 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 1 February 19, 1987." 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 1 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). 1 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. 1 CAMPBELL, SON, SCOTT & FUCH A. ' By: .t ..ri Elliott B. Kni EBK:mlw ' Enclosure cc: Don Ashworth Paul Krauss Sharmin Al -Jaff • STATE OF MINNESOTA DISTRICT COURT '• COUNTY OF CARVER CRIMINAL DIVISION FILE NO. -( STATE OF MINNESOTA (City of Chanhassen) Plaintiff, COMPLAINT - SUMMONS I vs. FOR MISDEMEANOR OR PETTY MISDEMEANOR HARRY LINDBERRY e Defendant, DOB: 1 6901 Maloney Avenue ' Minnetonka, MN 55343 } CO CD i COMPLAINT • • $cott Harr being duly sworn makes complaint to th y ove- =• named Court and says that he /she believes this information and other persons j .from who it is obtained to be reliable and that there is probable cause to _ • believe that the above -named Defendant committed the offense described ▪ below. The complainant states that the following facts establish probable I cause: Your complainant is Scott Harr,' Public Safety Director for the City of Chanhassen. In that capacity I have reviewed City I records, files and inspection reports and believe the following 1 facts to be true. � The defendant, HARRY LINDBERY, is the owner of certain real -1 property located at 1700 Flying Cloud Drive in the City of - _. ( Chanhassen, County of Carver, State of Minnesota (Subject Property), legally described as follows: _ . I • That part of the East Half of the Southeast Quarter of Section 34, Township 116 North, Range 23 West of the 5th II 1 Principal Meridian which lies northerly of the center line ?: of U.S. Highway No. 212 and southerly of the southerly line 1 of Chicago North Western Railway Company. (continued) THEREFORE, Complainant requests that said Defendant, subject to bail or conditions of release where applicable, (1) be arrested or that other lawful steps be taken to obtain II 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. ' 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 I ' / W Elliott B. Kn' ch, #168130 1 Prosecuting Attorney, City of Chanhassen SEE REVERSE SIDE FOR COURT DATE 1380 Corporate Center Curve, #317 I Eagan, MN 55121 (612) 452 -5000 • EXHIBIT 5 (3 page' II 11 CITY OF CHANHASSEN V. HARRY LINDBERRY PAGE 2 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 1 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 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 1 COUNT I - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 20 -909 - 0 - 90 days and /or S700 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. I COUNT II - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 20 -909 0 - 90 days and /or S700 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. 1 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 • CITY OF CHANHASSEN V. HARRY LINDBERRY ----------------- COUNT IV - ILLEGAL OUTDOOR STORAGE - Chanhassen Cit C 20 -909 - 0 - 90 da s and or 700 h day thereafte That on or about July 15, 1992' and eac of ereaft City of Chanhassen, County of Carver, gp,RRY LINDBERY, then and there be wry and d unlawfully permit aning, di th d e dn ermit illegal outdoor storaq 'Property. 1 1 1 1 • i 1 1 1 t 1 1 PUBLIC SAFETY DEPAr -MENT i SERIAL NO B 354 3 1 Building and Zoning Di► ,n 690 Coulter Drive — P. 0. Box 147 Chanhassen, Minnesota 55317 'TV 612 — 937 -1900 SIB . 3 • P�.I'� S'I' �'..._ ' APPLICATION FOR BUILDING PERMIT CITY OF DATF 10- 2E � - $9 SITE ADDRESS 1703 Flying c� Drive CHANHASSEK EST. BUILDING VALUE I w Name r Tr - i+ ZONING DISTRICT cr Z Address f t1 6 pi (TiP .. 1�Vi'_ RES COM X IND. PUBLIC O City IT)i - -t7S /1. Tel. f93h -5 9 70 i NEW 'Jr EXISTING P.I.N Name S3... #-.01- SUBDIVISION LYIPt Address 6.< LOT BLOCK H City Tel No I I hereby acknowledge that I have read this application and state that the SECTION NORTH HALF SOUTH HALF F_ information is correct and agree to comply with the •anhassen, Minnesota r1 ordinances and the S :te of Minnesota Ia� egulati _ Awe:iog construction. Building $ :$ Signature of ' / $ I m1ttee AVII • A d' 1 `/ Plan Chec . p - any $ 49.00 CALL FO "LL INSPECTIONS LIS ,• � Surcharge 7- 0 BUILDING CARD nia PHONE 937.1900 S.A.C. $ FIICSii SPACE REQUIRES 75.00 Sewer Surcharge S SEAM = DO NOT WRITE IN THIS SPACE Park Dedication $ - PERMIT ISSUED F Trail Dedication $ TO 1I1L-11.-7 T n7 Water Uni Tt`'4 3� �t" $ . ` On the express condition that all work shall be done in accordance + with the ordinances and building codes of the City of Chanhassen FINAL FAA lann and the State of Minnesota. This Permit is void if work is not com- - Sewer Unit um . AtorrecuAt menced within 120 days or abandoned for 120 days. Bui46ing lnspefrion Division Water Meter i �? j Public Safety Dedica n I (� //L{ S 0 BY ��.-� ' �� .�.t,� � ii[" � � � • q5 �/Mb. J Other Fee ii L- TOT FEE PAID $ 1SITEADDRESS SI- T. PMaT (7j'LV Date SERIAL NO. B I 1700 Flying C1CLX Dr. 1 10 -26-89 'Subdivision Propert I.D. No. Contractor Phone No. =platted 33ar ry I,ir, -ry 93s -9570 Lot No. Block Section No. Estimates Completion Date Building Valuation 34 ❑N% ps% $98+000. 'Survey No. Newt Alteration ❑ Repair ❑ Addition ❑ Demolish ❑ Other ❑ x 'Residential 0 Single Family 0 , Multiple Dwelling ❑ No. of Units Other ❑ Commercial E Industrial 0 Specific Use: Storage of caxzst. equipe0it & supplies ,Kind of Construction Type of Construction IFR IIFR 111 1 -hr,N 111 1-hr,N IV H.T. V 1 -hr,N - 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 0 x = Sq.Ft. Conditional ❑ Setback: Front Non - conforming ❑ Variance ❑ Side x = Sq.Ft. Rear TOTAL FLOOR AREA Sq.Ft. • 1 REM f 630 50, plan check $409.83, tax $49.00, sewer such. $75.00 $1-1.33 / / D r46 1 1 EXHIBIT 6 WedgCor, Inc. DELIVERY /PICK -UP INVOICE ' Jame st ownND584Q2 DEALER DEMAND TO COLLECT FUNDS 701. 252.7380 P.O. # D5 -9396 DEALER: REGENCY STEEL SHIP TO: Harry Lindery "CPU" , 6901 MaLoney Avenue Hopkins, MN 55343 , Prorate /Community Freight Private Freight t Per our notification on Ma rr_h 14, 1989 , your order is scheduled to be delivered Within Ten (10) Days I of , or picked up on 8 AM, MARCH 22, 1989 . Est. weight: 55,386 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 you with a more specific delivery date. The dealer has ordered WedgCor to collect funds. WedgCor requires Certified Funds in the amount 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 Toss, storage charges, unloading and any other costs incurred by WedgCor. Refer to your dealer and/or dealer manual. Buyer or buyers agent acknowledges the dealer is independent and not an agent or I contractor of WedgCor. Original C.O.D. $34,752.00 1 REVISIONS AND CHANGES: *Certified or cashier's check Current C.O.D. $34,752.00* NOTICE: Your building freight was calculated to Hopkins city 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 z :;;;E0(22f 5442 - Two Rivers Printing, Int. EXHIBIT 7 a ItN 4 Minnesota yo_ Department of Transportation District 5 2055 No. Lilac Drive i'oFTstA Golden Valley, Minnesota 55422 (612)593- 844 Novemer 1, 1988 Harry Lindberg ' 6901 Maloney Avenue Hopkins, Minnesota 55343 ' Re: Permit 5- A- -88 -56 T.H. 212: C.S. 1013 Loc: Near Jct. County Road 10 ' Dear Harry: ' The above referenced Access Permit has been approved based on your application dated September 26, 1988. II( 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, Department of Transportation. Upon obtaining this permit, you will be authorized to perform the ,' 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, 4 William G. Warden Roadway Regulation Supervisor HARRY LINDBERY 2135 6901 MALONEY AVE. HOPKINS, MN 55343 Nov. 4 198_ rd- 1!92/010 ' PAYTOTHEState of Pin.Dept.of Trans. J r500.00 ORDER OF ' * ** Five Hundred & No /100 * ** DOLLARS l SOUTHWESTfrieliqSTATE BANK 7600 PARKLAWN AVE EDINA, MINN. 55435 ..Permit 5- A -88 -56 /' 1:09 10L49241: 20us.2L05 :II'�2L35 � / Ya v EXHIBIT 8 1 1 E ' _ INSPECTION REPORT CITY OF CHANHASSEN, MINNESOTA 937 -1900 INSPECTION FOR AM . i 1 C� DATE TIME. TIME 8A DATE INSPECTION DESIRED 1 I ( �1 • - • ADDRESS 0 r( 1 '^L � e�V` o a f PERMIT NO CONTRACTOR (r *. 1--/Kriltpt rrL TAKEN BY: 1 WATER METER NO REMOTE NO. 1 LOCATION 1 CORRECTIONS ) S LAI ; ct c,F AM Dot- pi i ��r elf i � ( - tT :, t . , a ^rtU4j Z� lou 6(avi r 1 I D p t4 t C. f/av\ 1 3 f [`1h I! LQr j )QL1 - ` , ■ 4 1 1 1 � ', 521 UO Ai i, i.4' j p 1.74' / `t-, 1► t -t C • v C. C. • 1 r/.-Ept a V 1 L . O (' C. C. C • O 0 C. C_ O 1 ' O( C:c0• C • C. C. ` • 4 O(,t' . _ _ If no corrections are listed above, approval is hereby given to proceed. You will be in 1 violation of the ordinance if you do not call for the proper inspections and make cor- rection as called for. C 101 2 29O it ee ' k Dat Time IOspector 1 • 1 EXHIBIT 9 1 t EXHIBIT A • 4/ 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 hrough Saturday. Work on Sundays and holidays is not permitted. ight sources dhall be shielded. II 4. No outside speaker systems are allowed. r �� gy , ' Compliance with the conditions of MnDOT including installation of k r a right turn lane and a left turn lane if required by MnDOT. F le �; .6. Installation of bituminous driveways, parking areas and loading areas. II 4 � Compliance with the conditions of Resource Engineering as written 1 • in their memo dated August 9, 1988. ' 1E1 Protection of the two septic system sites during construction. 1 9. Installation of a holding tank. • 10. The building must be sprinklered. 1 IIESProvision of one handicap parking space. 12. Contractor's yard activities only as defined in the zoning.ordi- ,: q,) nance, are permitted. There shall be no shipping or other non - ri - . 1.(.w' contractor's yard activities. '3 The applicant shall obtain and comply with all conditions of the , ' t permits from the Department of Natural Resources and the Watershed ✓,. ,,1,� t 13 ' 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 . 100 -foot intervals in all proposed drainage swales. I 16. The plans shall be revised to include erosion control measures for the proposed construction within the immediate area of Bluff /� =�,�Creek. ;l 17/The pond outfall shall be revised to include a submerged outlet n .— detail in place of the wooden skimmer. Ir / 18. Submission of a vehicle inventory list. '• 19. No heavy equipment or machinery shall be operating between 6:00 II ` p.m. through 7:00 a.m. • 2Q. No shipping activities shall originate on site. I pek,exarcl∎ 4t 14 HIBIT 10 S EX Planning Commission Meeting April 19, 1989 - Page 30 /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, 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. 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. 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? (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? Hanson: It won't... ' Headla: Then 1 don't see any reason to not approve it. Conrad: It's just that, would we learn anything additional? 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? Elison: You've got to tell the neighborhood. 11 Hanson: It's the same way we'd know that a conditional use now had expired. EXHIBIT 11 (2 pages" I Planning Commission Meeting April 19, 1989 - Page 32 II Erhart moved, Emmings seconded that the Planning Commission recommend I approval of the amendment to the City Code to delete the following sections from the zoning ordinance: Section 20 -255 II Section 20 -574, Subd. 6 Section 20 -773, Subd. 6 II All voted in favor and the motion carried. Erhart: My comment is, as time has gone on on this thing, it's become II more and more clear that we are recommending the correct thing... APPROVAL OF MINUTES: Batzli moved, Wildermuth seconded to approve the I Minutes of the Planning Commission meeting dated April 5, 1989 as presented. All voted in favor and the motion carried. II ITEMS FROM THE PLANNING STAFF. Steve Hanson updated the Planning Commission on what work had been done on the following items: convenience stores, wetland articles, zoning code, Ise of matrix and letter from Roger Knutson dated April 12, 1989. II Emmings 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 II 1 * II II 1 II ' ' ; yY ' § 20 -233 CHANHASSEN CITY CODE , -.: ,ate (b) In determining g conditions, special considerations shall be given to protecting 1 g 1 .' 2.2. - ately adjacent properties from objectionable views, noise, traffic and other negative chars '�"- istics associated with such uses. "' (Ord. No 80, Art. III, § 2(3 -2-4), 12- 15 -86) _ "` "' - X - s =�1t• - T _ '�� if s ' y Sec. 20 -234. Deni al for noncompliance. -.--, : _ -._ _ -._• :,, If the council denies a conditional use permit, it shall state findings as to the way :':. ' -' ." - 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. " � A conditional use permit shall be issued for a particular use and not for a parti ;_ - person. • ; I (Ord. No 80, Art. III, § 2(3-2-6), 12-15-86) _ • R -T YF'N * w . Y1 Sec. 20 -236. Expiration. +, ""�` ' : _ �- - - mss s' If substantial construction has not taken place within one (1) year of the date on whi the conditional use permit was - ., P granted, the permit is void except that, on application,- - "j- =:: �.' council, after receiving recommendation from the planning commission, may ext : . _ _ 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 sli- E'i`-_"--_7, v __:. �; issued apply to conditional use permits iss rior to February ` = -' • a P ary 19, 1987, but the six -month peri ..1: ' == 5-:-.: ._ shall not be deemed to commence until February 19, 1987. `= ^" :. • -' i (Ord. No 80, Art. III, § 2(3.2 -8), 12- 15 -86) _�. K : , L j T J i Sec. 20 -237. Revocation and — '` inspection. - - - . (a) Failure to comply with any condition set forth in a conditional use permit shall la • rte__ misdemeanor and shall also constitute sufficient cause for the revocation of the conditional " ,--, f permit by the city council following a public hearing. The property owner shall be notified i n -_ >_- advance of the city council's review of the permit. _ _ (b) Inspections will be conducted at least annually to determine compliance with the _ terms of a conditional use permit. - _: >- i (Ord. No. 80, Art. III, § 2(3 -2 -7), 12- 15 -86; Ord. No. 106, § 1, 8- 14-89) = 7 1 - Secs. 20- 238 -20 -250. Reserved. - - - DIVISION 3. STANDARDS FOR AGRICULTURAL, AND RESIDENTIAL DISTRICTS _.. - Sec. 20 -251. Scope r • 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. rd- -- (Ord. No. 80, Art. V, § 9(5 -9 -1), 12- 15 -86) ' _ No. 2 Supp. N 144 1176 ' -. 1 c EXHIBIT la ' I Hydronic Heat Distribution F Y ; tl In a hydronic underfloor 1 heating system. the entire m MIMI floor surface of the area to be heated becomes the • - - radiant heat source. Heat is i I delivered b} circulating hot . --- water or another fluid "" "'`' :: sue through tubing suspended 1 I inside the floor joists or _ f entrained within the i . concrete or poured -floor I 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 I 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 than radiant hearing 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. din, 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 I The true beauty of wood, marble and tile floors rises, heat collects at the ceiling while cold air pushes 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 cleaner and less cluttered. system is transferred ri Draperies can be Ming and from the Wirsbo -pePEX furniture arranged without tubing directly to surfaces I compromises based on the within the space to be location of heating vents. heated. Radiant heating completely eliminates the v n a Wirsbo-pePEX hot -air draft created by I hydronic underfloor heat forced -air systems. temperature and comfort opv. t.� I. system, In rooms heated with a 1 : ;�_ _ "�1 x a I can be controlled on a Wirsbo - pePEX hydronic : �_ room-by-room basis. system, people typically 79" ) � ; r - Individual zone and system find they are comfortable / 7 , 1 controls replace the single ' centralized thermostat with the thermostat set as ` low as 65 °F. That saves t t 6: 1 ' _ — common to conventional energy. And because heat ,Q �� _ X, hydronic underfloor in a h heating systems, thus Y ' improving comfort while system is delivered directly, providing energy savings, low - temperature power Forced Air Heating Radiant Floor Heating sources — including water Heat 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 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 I 3 1 1 Comfort Without Compromise 1 1 T T he human food) is a Farthest away from the the height of a normal adult at floor level. the room must 1 h a c heating heart are the feet. the body's — meeting and satisfying be overheated at the level of system. It circulates heat most sensitise 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 1 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. maintain the temperature at system (as illustrated in the distribution profile of the 1 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 toward the extremities. consistent temperatures of thermodynamics: Hot air 1 from the floor to just above rises. To put sufficient heat _ _ a rr ' s ' e 70 ' c DEGREES FAHRENHEIT 1 ' -1.4- ; S- , - E LY .�}= c -i �t' S _- ,! c. � � ..�,i Idea! - � -s'�- Hearing Cunc 1 o- ? 2 T � a " a -r, n u 1 1 . t "'r - \`' Wirsbo Radiant Floor V it -; ` Heating Cune % A �`y �^ ' 1 sr r , - s 3 -` ©• • 65° • • - 74° • • _ 1 a, -..4- i t V 21c- t y E - NO c y 7 " ; °` c .+ a _ THERMOSTAT - lit c - ` nY f HEIGHT s _,- , 't ' ,> r : - Forced Air 1 £r >4 `y �,- Heating Curve § . 4 . -'a -,- � 5 — x i t A mat a*- �: d ,- 4 - "i t 5 0 O O O O " ? W �' DEGREES FAHRENHEIT 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 be relatively precisely according to the Ideal must be forced into the room to constant from floor -level to just Herring Curve, aWirsbo -pePEX maintain a comfortable 1 about the height of a normal adult system assures that all of the heat 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 People literally 'feel" more energy. 1 comfortable De• yea en research by T. Bedford ( Warmth Factor in Comfort at Work'), F A Chemko ( - The Effects of the Floor Temperatures of Roar Surtaee and the Au on Tner'ra Sensor or. and the Sim Temperature of 100 feet'), and PO Fender ( Comfort') I 4 1 Ho7 es A Design For Any I Type Of Installation Wirsbo -pePEX underfloor Apa - : ' , - heat distribution systems can be installed m and type I of floor and in any kind of structure: 0 e_ 1 Store_ Rest.... - a --:. s , . 4- - - _ = ,i , ,. -..... . - - • -,/... . Nurse -les j s Factories :" - -. -f' r - .. ` - , ` Rood With Aluminum Plates Wood With Poured Floors Ware . Ses In residential and other forms of Using Wrrsbo s PEXgrid plastic I construction using suspended track system or construction wood floor construction, Wirsbo- staples.15irsbo -pePEX is fastened Scnoo S pePEX tubing is run within the to the surface of the wooden sub - suhflooring joists To maximize flooring before the addition of a I heat distribution uniformity the poured floor underlayment tubing rests in grooved aluminum Dayca heat emission plates that absorb I and radiate heat from the system into the floor above Hospita's 1 _ z . Gymnasiums 4. 1 = s _ -- .�y '` " - t ie 1 .. _ ' t r . .. Coliseums "' , � - t ,€ - -�� .. ,+ a. Clubhouses Concrete Slab Floors Concrete With Pound Floors I 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. layer of lightweight concrete is Parking Ramps Once in place and pressurized, poured. To maximise the speed Wirsbo -pePEX is virtually immune and efficiency of the installation, R io damage from construction the tubing can be held in place by Parking Lots equipment. Wirsbo's unique PEXgrid track 1 system. 1 5 1 Make Wirsbo Your Design Partner i 1 1 W irsbo is one of A Design For Any Technical Design Europe's largest and Type Of Heating Plant Assistance most experienced manufac- Wirsbo-pePEX 's oxygen No organization in the turing and technology diffusion barrier is one- world has more experience companies. Founded in thousand to fifteen- thousand with hydronic heating Sweden in 1620. it has times more resistant to technology than Wirsbo. No pioneered hydronic oxygen penetration than any matter how large or unique underfloor radiant heat other unprotected synthetic the installation being distribution in more than tubing used in underfloor planned, Wirsbo has the 600.000 installations heating today. Conse- design experience and throughout Europe. Our quently. boilers, fittings and resources to support it. exclusive patented Wirsbo- other components are not pePEX tubing technology is limited to high -cost stainless Technical design support . proving its reliability in steel and other non - ferrous also is available through applications from homes materials. Boiler loop Wirsbo's network of trained and apartments to offices isolation heat exchangers sales representatives coast and stores. industrial shops are not needed. Neither are to coast. From the heat loss and manufacturing plants to expensive and questionable Individual :one controls allow and structural specifications hospitals and schools. corrosion inhibitors. temperatures to be controlled of your project. we will room -by -room. provide a complete system diagram and materials list Tubing runs assure even 4 (including the tubing layout distribution of hear m even part and full installation of the room. _ . instructions). Well also \ '� consult with you on heat _ - -. 1 ` \ �1 plant sizing and other design decisions. r ,://e -4" - -- ; it ® c II Manifolds on each floor provide 4.. �� 'E quiet reliable distribution of heat ° l R ' s Mechanical where it's needed. 1 Room 7 t-----------)ii ,,,i.., , . , \ \ \ , ,____________________3 //(r i ( \\ mom. 6 i I Wirsbo Tubing Manifold f, Specification furnish and install. in accordance Compact design allows Telestat Junction Bat with the recommendations of the pia, emenr in „all., • closets. Slay. c/Ls nl manufacturer. a hyoronic heal • distribution. system System shalt kir i spar ct — use a nomina. 518 - Inside diameter ` �— Thermostat Sethurk Clock crossI rucec polyethylene tube Return titeeliog ASTM standard F876 877 a • : _ _ _ Tubes s:al oe rated 180 °F /1O: PSI - ,,,—.—..-- Thermostat and shall have an Integra' oxygen I diffusion barrier to reduce the t Supph - potent;a: of system- corros +or - End cap with valve hose ii I r adapter and air vent System shad be complete and seal' i i .. Precision-manilla, include system design. tubes. tube dr_inrifrun bends. tube tie - wires. heat- n- resistant `- - = t brass frttur;'c corm in r - emission sheets (it required). I double and triple arrays to Bend Support Valves. fittings. manifolds. manifold accommodate up to 10 _ = supports, telestats (valve individual loops 1 - actuators). room thermostats and 115/24V AC (UL approved) ° �' , bra `s �� -1'" Install in minute. with transformer. Tube shall be common hand tools _ warranted for 20 years: associated accessory items furnished by i manufacturer shall be warranted for 18 months from dale of sale Complete Pre- Typical Data For Various Applications Engineered Package - Notes Application RESIDENTIAL COMMERCIAL INDUSTRIAL SNOWMELT A Wirsbo radian heal distribution A Wirsbo -pePEX underfloor heating. system Room Temp 65 -72 °F 60 -72 :F 55 -68 °F 25=F system can be installed in most comes complete with all the Water Temp 95 -160=F 90 140 =F 85-110"F 90 130rF floors with extremely favorable I manifolds. alp es. couplings Surface Temp 75 -88 °F 0 - 14 0F 70-85"F 35 -4 ='r results. Tubing should not be installed underneath walls. in and accessories — including Hear Output 2G- 35B:.," sc 1! 15- 30B1j' so t1 10- 20Bisrr so n 80- 150B., so fl closets. on stairs or in locators installation tools — needed I Temp Drop 10-20'F 10-20"F 10 -20`F 20-35'F where future contructton is like•y In addition. \\ irsbo -pePEX systems are supported u ith Temp Loop =O7gpr =1 gym =1gpr. =2gpm Care must be taken during installation to avoid punctures to a full line of thermostats and Pressure Drop 5 -2011 1120 15 -40n 1120 20 -5011. 1120 20.501, 1120 the tubing due to tai•, or staple I telestats (valve actuators) to Loop Length 150-375 ` 250-40011. 300 -450 150-24 o. ". meter and regulate each heat Tub -< of renter E -'.2' 12-18' 12 -24' 8 -10' holes or construction damage. zone according to \Virsbo•s Wirsbo-pePEX tuo,ng is designed J11 computerized design NOTE: Above examples are not a complete list of applications. Above factors for use in a low - temperature program. are dependent on each other Do not base a system design on these average system- Operating water values. The lengths shown are averages and not compatible for at installations temperatures depend on a variety within the application. The heat outputs are averages only. Heat loss analysis is of factors. and may need 10 be required for an actual system. increased in installations where there is an unusually high heat -loss A tf n -pePEA .astern rot requirement. in suspended wood operate from anv Ape of hailer nr floor construction, and in water hearine plant installations where thick carpeting \ 1 will be installed over the flooring. Where a combination of adverse - _ - _� � factors makes it impossible for the \ - underfloor hydronic system to \� \ �� Y __ - `\ provide adequate heat output at an s - '�` '- acceptable water temperature. the -_ _ _ — _ — _ _ \ installer is cautioned to reduce mil _ resistance to upward flow (by `� decreasing the thickness of carpet _ or pad), use an alternate type of � — -- floor construction, or provide a supplemental heat source such as radiant baseboard. 1 W irsbo PEX technology Wirsbo • - is bnnging the proven Patented PEX tubing - potential of crosslinked with its five- laver oxygen i' polyeth) lene tubing to the diffusion bamer is being ' United States. No matter used in hydronic underfloor what kind of application is heat distribution systems of under consideration — all types and sizes as well as I underfloor heating. small -scale snowmelt and snow melting. de- icing. groundfrost control systems. refrigeration. chemical Il transfer. potable water Wirsbo Meltaway • - suppl). agricultural tubing _ _ For larger snowmelung and ` ` 'y = _ -_ � < — a Wirsbo product can ground frost control. Melts- _ • s - I meet the need _ , . ,.t, -� -r > wa) tubing's one -inch diam- eter is proving its usefulness - - _- Made In America in streets and sidewalks. Our new manufacturing. parking ramps. athletic .,,_ • ' distribution and training fields and racetracks, and • center in Minnesota allows other outdoor locations. • Wirsbo to support Europe's I leading hydronic heat distribution technolog} with Wirsbo R -PEX • t \\ \ \s \ \ \ \ \ \\ • \ \ \ \\ close -to- the - customer sales Wirsbo's pre- insulated \ \ \ \ \ \ \` / pi- iii; �� # ��t ''� • and service. R -PEX tubing is ideal for if r ); >�/ , ' �����\ \ I .. >� large-scale district heating ;,e , A Wirsbo Distributor and heat distribution Is Near You systems. i 4 '- _all \ � \ To find your nearby Wirsbo representative. simpl} call - - the Sweets Bu) line Sery ice: 4,- . I 1- 800 - 521 -2737 At the • prompt. enter the Wirsbo Wirsbo - hePEX • ID# 3792. A supply tubing with an - -' oxygen diffusion barrier that I has the ability to replace : - copper pipes in distribution j applications. , I 0 Wirsbo -inPEX • ei+' 1 - Designed for industrial and - I other processes from food " ° ' 3 plants to dialysis machines; .f , , 4 available in diameters ` from 1/8" to 4 ". t 1 - & " e • c F e e I T h e H e a t wiRBBID 1 5925 148th Street West • Apple Valley, Minnesota 55124 I WIRSBO CANADA 580 Park Street • Regina, Saskatchewan S4N 5A9 1 11 City Council Meeting - February 22, 1993 11 some money even though we have to spend some. Next item. INTERPRETATION OF CONDITIONAL USE PERMIT VALIDITY, CUP #88 -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 II 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 I 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 I questions you might have. Thank you. Mayor Chmiel: Thank you Sharmin. Is the applicant, Jeff Carson here? II 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. Mr. Lindbery did indeed, I should also indicate that we were before the Board of 11 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 L - J interpretation as Sharmin has indicated. That the permit be voided. Mr. I 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 I 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 I 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 I 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 I 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 II 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 I 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 City Council Meeting - February 22, 1993 1 he bought the shell of the building in 1989, and he's spent $36,000.00 doing 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 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 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 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. 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, 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 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 9 1 11 City Council Meeting - February 22, 1993 has since corrected the problem, by his perception at least, and put the boxes II 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 II 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 I 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 II 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 I 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 I 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 II 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 I 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 the permit that relate to construction haven't been met. That also was a I 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 I 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 II 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. I Mayor Chmiel: Okay. Are there any questions? Mark, do you have any questions at this time? Sitting on the Zoning Appeals. I 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 ticurrd e on ui. he reasn I hahaouble a II in cons the ruct co nditional has oc use permita b t lding he conditionTal o use permit ve lack s any tr reference is tht to` • 1 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. 11 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? i 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 1 1 il City Council Meeting - February 22, 1993 out and that's why if they're tied into the floor. And we had a problem with II 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 -- A in a lunchroom for the fellows. And then another one for the floor drain. So II 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 I 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 I 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 SOX of the time that would be froze up I 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 II 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, II 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 I 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. L..f So that kind of tied up the building. But we had drivers going in there and II going out of there with different supplies during this time so we didn't abandon II 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 I 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 I that so I mean, I don't think we've ever bothered anybody. Mayor Chmiel: Thank you. Colleen, do you have any? II 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 I 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 II complaining because you got caught. Jeff Carson: No. If I may respond to that Mr. Mayor. I'm complaining I guess, I 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 II 12 II 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. 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 own personal finances in the future. If it's granted and if the dollars are 13 City Council Meeting - February 22, 1993 spent to put this in, is it in fact in your best interest, even in the short II 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 I 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 II here. *1,200.00 for a permit and *3,500.00 for a building and MnDot 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 II 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 I 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 I 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 I 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 I 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 I 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 I be in an accelerated manner. Harry Lindbery: May I ask a question? II Mayor Chmiel: Yes, if you'd like to come up to the microphone. Harry Lindbery: Would that be for the building to be totally complete because I 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, II 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. II 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? 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 1 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 1 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 r - 3 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. 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 r i. 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 __f 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 16 City Council Meeting - February 22, 1993 Sharmin Al -Jaff: June 8th of '92. 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 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, 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 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 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 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. 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 considering what may be coming his direction. Or, I don't know what date it is. 1993. - 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 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 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 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 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. Jeff Carson: Well, that's not unfair. 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 business but it never, that was never said before. You can say what you will. 19 City Council Meeting - February 22, 1993 You can say that Mr. Lindbery is difficult and all of that but really don't y b I r ly 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 ae City Council fn the J Conditional Use Permit 488 - 11 for a contractors yar d on th property locate d at ds 1700 Flying Cloud Drive is still valid and to schedule a public hearing to consider I revocation of CUP $88 -11 for non - compliance. All voted in favor except Councilwoman Dockendorf who opposed and the motion carried with a vote of 4 to 1. II 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 I and let you know when this comes back before us. Jeff Carson: Thank you. Does that come before the Planning Commission? II Mayor Chmiel: Yeah. You go before Planning, it comes before us. Item number 3. II 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. B. CONDITIONAL USE PERMIT TO ALLOW AN AUTO SERVICE FACILITY IN THE BH DISTRICT. Public Present: I Name Address II Al Beisner 7549 Mariner Point II 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 II Councilman Senn: Mr. Mayor? Mayor Chmiel: Yes. II 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 I work session next month. Mayor Chmiel: Okay. For what specific reasons? I 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. II ' 20 1 II CHANHASSEN BOARD OF ADJUSTMENT AND APPEALS REGULAR MEETING FEBRUARY 22, 1993 i Chairman Johnson called the meeting to order. MEMBERS PRESENT: Willard Johnson, Carol Watson and Mark Senn II STAFF PRESENT: Paul Krauss, Planning Director; Sharmin Al -Jaff, Planner 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. II 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 contractor 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 procee 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 II interpretting the ordinance the same way. In this case the application comes in front of you and the Board of Adjustments and Appeals will deci 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, Buildi 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? II Kirchman: I'll just answer questions if you have any. Al -Jaff: Okay, thank you. II Johnson: Are you the Attorney? Jeff Carson: Yes sir. II Johnson: State your name please. II 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 II Board of Adjustment and Appeals February 22, 1993 - Page 2 1 was before the City Council, Planning and City Council to apply for and ' receive his conditional use permit. That was issued in September of 1988 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 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 view ' of things because they're suggesting that so much time elapsed and a building wasn't built and therefore the conditional use permit lapsed. It is my interpretation, as I read the definition of contractors yard, which 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 that 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 the conditional use permit was issued and if this were the first blush at this 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 City Council even more significant frankly because if you concur with the staff 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. I '1 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 - conforming 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 1 that's an important feature because as you may recall, if you went through 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 nobody here except the staff and the Planning Commission and the staff technically, correctly said well, we don't have to invite every contractor 1 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 changed 1 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 ' 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 Board of Adjustment and Appeals February 22, 1993 - Page 3 1 use permit more than 2 years after the issuance of the permit itself. Now 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 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 II 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 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 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 issu of the building itself. And there are exhibits attached to show this. H 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 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 o 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 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 II 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 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 II on the property. Probably in 1989. I think there's something else that 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 workll for a year. So you know these periods of time, they seem like great 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 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 II 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 to their sites. He was storing them on his property and they could be II 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 anything for one reason or another. They're huge for one thing. They're, difficult to move. Watson: What are they? Jeff Carson: What are they called Harry? 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 1 Board of Adjustment and Appeals February 22, 1993 - Page 4 I ground. They're 10 foot. No, they're 8 foot wide and 8 foot high and 20 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 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 the units were? ' Watson: Yeah, sure. Jeff Carson: They were big and heavy and. ' Harry Lindbery: They're 20 foot long and 8 foot square. I Jeff Carson: They became the subject of inquiry by the staff and actually have since become the subject of a criminal complaint, which is pending in 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, but 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 building up, etc, etc. Well, before you know it it's alleged and claimed that his 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's 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's 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 1 contractors yard. He would like indeed to put the building up and there's 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 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 was written here. A couple of points I think I should make about this. I said Mr. Lindbery had used his property since receipt of the conditional use permit as a contractors yard. The response is, if the applicant used the property as a contractors yard, then he did it without complying with 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 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 1 Board of Adjustment and Appeals 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 us 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' 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 II 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 th` 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 b� the city on the property. The last note that we find is October of 1990. October 23rd of 1990. 5o 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 I 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 till 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 t the City Council that Mr. Lindbery be recognized as an existing use, suc 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 11 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. I� 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 ' 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 be 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. I 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 and all that? Kirchman: No we don't. Watson: 5o no forms were filled out at that time? Kirchman: I inspected the footings and heating was never brought up to us 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. 1 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. II Board of Adjustment and Appeals February 22, 1993 - Page 7 II 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. Jeff Carson: I don't think the records would ever reflect just that but II from Mr. Lindbery's point of view, that's what happened. Johnson: Did he ever apply for a heating permit? It was required. II Jeff Carson: I think, I'm not really that well versed on the permitting process. I think it was all encompassed in the. Watson: Original building permit? The original building permit says just a shell. Harry Lindbery: Are you familiar with radiant heat? II Johnson: No, I'm not an engineer on radiant heat. Harry Lindbery: May I show them? II Jeff Carson: Well they have a copy of that. ' Johnson: We have a copy of that. Watson: Yeah, it's okay. We're just trying to get inspections and permits straight. 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 II done as a part of the conditional use permit. Jeff Carson: Fencing of? I expect the only fencing that would have beer done would have been to block. Johnson: Yeah, blocking fencing I guess or. II Watson: To screen. Jeff Carson: Screening. Well you know, the lay of this land is such thal you can screen items, if you will, from view. Is everybody familiar with 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 an you've done more harm with the fence itself. It's been our view of that, 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 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 II fencing, berming or landscaping? Al -Jaff: No they're not. 11 Board of Adjustment and Appeals II February 22, 1993 - Page 8 I Senn: Was a proposed screen plan ever filed at the time of the issuance of the building permit? II 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... 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? II Al -Jaff: No. Watson: Because the original intent was to enclose this, was it not in this building? II Al -Jaff: Correct. I Senn: Well yes and no, except it takes kind of a giant leap it seems to 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 II permit? Al -Jaff: There is a limitation on the hours. It was between 6:00 and 7 :00. I Senn: But there hasn't been, there's no problem in relationship to that. How about light sources? Are all the light sources shielded? II Al -Jaff: There isn't a building. II Senn: There are no light sources? Al -Jaff: No. II Senn: Okay. Al -Jaff: There isn't in operation that we are aware of taking place. II Senn: Okay. Have they complied with the conditions of MnDot, including the installation of the right turn lane and left turn lane? II Al -Jaff: No. Senn: Okay. Is there bituminous driveway, parking areas, and loading II areas? Al -Jaff: No. II Senn: Is there compliance with the conditions of the resource engineering has written? I don't have that memo of August 9th so I don't know exactly what it says but. II Harry Lindbery: That would be septic systems. II Board of Adjustment and Appeals 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 constructe 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 II itself. Senn: Okay. Is there a handicap parking space on the site? 1 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. 1 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. Submissioll 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 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 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 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? 1 Krauss: Well that's been the subject of a lot of discussion and maybe the 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 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 been 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 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 a ' 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 we 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 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 he 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 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? 1 11 Board of Adjustment and Appeals II February 22, 1993 - Page 11 Elliott Knetsch: That's my position. 1 Senn: So you're saying there's no need to revoke something that doesn't exist? 1 Elliott Knetsch: Right. Senn: Okay. Why doesn't it reference in the conditional use permit or II 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. II Krauss: It pre -dates all of us Councilman Senn. II 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. II Senn: Would you answer these questions for me again then and dispute an 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 II the bituminous and the lane and all that. Senn: Bituminous has nothing to do with the building being built. II Jeff Carson: No. That was all going to happen at the time that the building was put up. II 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. II 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 fac 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 II 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 II preceding close to four years. II i Board of Adjustment and Appeals February 22, 1993 - Page 12 ' Jeff Carson: Well you would hope so but keep in mind we've been under criminal penalty or prosecution since. ' Watson: '92. Jeff Carson: Yeah, for a year. So I mean that's what I meant when I said periods of time. Watson: Then we have 3 years. ' Jeff Carson: Periods of time come and go here and they seem like long, incredibly long periods of time. You can understand them if you take them one date to the next date to the next date. I'm not saying that this is the ideal by any stretch. Johnson: Steve, could I ask you a question? Did at any time they come in for a heating permit? ' Kirchman: No. On my inspection of 10/22/90, I asked that they submit a floor plan, plumbing plan, HVAC plan and sprinkler plan so that they could continue with the heating and do as they wish and also asked that they set up a meeting with the Planning and Building Department to clear up these misunderstandings and we never heard from them again. Krauss: Mr. Chairman, the reason why it's brought to you here tonight is for an interpretation of the Code which is in your area. The Code states that if substantial construction has not taken place within one year of the date in which the CUP was granted, the permit is void. We've determined that the permit is void. The applicant's contesting our determination. I mean what it boils down to is, who's position do you ' agree with. Johnson: I understand what you're saying. Jeff Carson: And you can readily understand why the parties are taking the different positions but look at that section of the Code contemplates that you have to have a building in order to have the permit. In other words it says, construction isn't within a year you're out. To operate a contractors yard you don't need a building. Krauss: That's not true. I mean this was approved with a set of conditions. The applicant's attorney seems to be arguing that conditions are irrelevant as long as you manage to squeak something on the property and go do it anyway. This is a package of conditions. It's typical of ' the package of conditions that we adopt with every CUP that we approve. You expect compliance with all the conditions. ' Senn: And the Code says. Krauss: If substantial construction has not taken place within one year of the date in which the CUP was granted, the permit is void. Senn: Okay, so let's get off the issue of the building which may be fairly vague. Okay. Has any of the other construction, other than the II Board of Adjustment and Appeals February 22, 1993 - Page 13 II building, occurred on the site? II Krauss: No. Jeff Carson: But the point is Councilman, you wouldn't do any of the 1 other construction until the building is in place. That's the timing of it all. You wouldn't do that. You'd do it immediately after the buildin is in. Senn: So now you're saying the building is part of it. I thought I heard you a little bit ago saying the building wasn't part of it- II Jeff Carson: I'm saying the building doesn't have to be according to the literal terms of this permit. But we want the building. II Senn: Well but see you're talking, excuse me out of both sides of your mouth. You're telling me the building doesn't count. Then the building counts. You're telling me none of the other conditions count unless the II building built. . Jeff Carson: I'm saying that that's what was contemplated. II Senn: That's not what the permit says. Jeff Carson: No. But logically. II Seen: Okay. Alright. But you are in agreement that's not what the permit says? 1 Jeff Carson: No. We're reading the permit the same way and frankly it could be clearer. II Johnson: I feel is there was a dispute over the heating, I would have asked, went to City Hall and asked to have gone on the agenda to tack to the Council and iron it out if I disagreed with the Building Inspector. II I'm not taking the Building Inspector's side but I've been down here jumping on. Jeff Carson: I might have done the same thing sir. You know, and II especially in hindsight I'm sure Mr. Lindbery would do the same thing as well. I mean if I knew he was going to be told at some later date his contractors yard was void, I can assure you that's what he would have done. Why somebody does something or doesn't do something at a particula point in time. Johnson: As I understand, it's one year as I look been involved in this,, there's nothing done substantial in a year and I realize the building didn't have to be completed. There was very little activity done and the" city did let you slide for a couple of years. I'm assuming that's why they let them slide. Hope there would be some activity without putting some pressure on you people and all of a sudden, nothing's been done. , Jeff Carson: Well to back off the literal reading of this and that for a moment, I would say this. I would hope that if at a point in time the II i Board of Adjustment and Appeals 11 February 22, 1993 - Page 14 I 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. 11 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 fact that there's still no construction by 1992, I'm sorry. I mean any reasonable person. Senn: It's inmaterial. It's not even an issue in the permit. II 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. Watson: Which tells me there was intent to build a building in 1989 which ' is not there. 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. But I'm saying that it's, what you're doing if you take the pro- offered action 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? Al -Jaff: Correct. Watson: That's basically the action that you are recommending? Krauss: Well I guess the action is basically to agree or disagree with ' staff's interpretation of that section of the Code. Watson: Now 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 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 applying for another one? i 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. 1 AI -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 II 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? 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 1 Board of Adjustment and Appeals 11 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's 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 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 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 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 favor and the motion carried. The public hearing was closed. 1 1 Board of Adjustment and Appeals February 22, 1993 - Page 17 Johnson: Okay, now go ahead with a motion. 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? Elliott Knetsch: Well it's published as a public hearing interpretting II the zoning ordinance. Watson: That's kind of why I asked you how do you want us to say this? II 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 II and he's made a different motion so, that's the motion that's on the floor. 1 Johnson: Do you want to rescind your motion? Senn: No I don't. I'm comfortable with that motion. I'm not comfortabli with the other one. Watson: I want a motion that takes care of what we need or we're going till 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 oll the Zoning Ordinance as it relates to this application. Watson: I'm happy. I so move. Johnson: I second. Any more discussion? Watson moved, Johnson seconded that the Board of Adjustment and Appeals II concurs with the staff's interpretation of the Zoning Ordinance as it relates to the Conditional Use Permit validity of CUP #88 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 February 22, 1993 - Page 18 Jeff Carson: Sharmin, will there be Minutes of this? Al -Jaff : Yes there will be. Jeff Carson: Printed? Watson: We've got Minutes. 1 Jeff Carson: Printed Minutes of this action? ' Watson: We've got them right here. Jeff Carson: No, of this action. 1 Al -Jaff: Correct, there will be. Krauss: Now this is also scheduled on the City Council agenda. 1 Jeff Carson: Thank you. ' Al -Jaff: For tonight. 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 Adjustment and Appeals meeting dated January 25, 1993 as presented. All voted in favor, except Councilman Senn who abstained, and the motion carried. ' 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. 1 Submitted by Paul Krauss Planning Director 1 Prepared by Nann Opheim 1 1 1 1 1 [ y:IlL ar • - iNt,1 w, , • 1 we r C <9 • fr , c t \---- . c — ■ c i, ,- .7"'■ --_%- ) 1 — 4: -. AL '- -P 1 1 1 1. 'O4 0 1*. 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