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1975 12 01 I I I REGULAR CHANHASSEN CITY COUNCIL MEETING DECEMBER 1, 1975 Acting Mayor Kurvers called the meeting to order at 7:30 p.m. with the following members present: Councilmen Hobbs, Neveaux, and Shulstad. Mayor Klingelhutz was absent. The meeting was opened with the Pledge to the Flag. MINUTES: The Council would like a progress report from the City Attorney on the Hanus properties at the next Council meeting. Councilman Hobbs vlould like a report on what has happened with Project 75-5 to date. Amend the November 17, 1975, City Council Minutes under FULL TIME EMPLOYEE as follows: A motion was made by Councilman Shulstad and seconded by Councilman Neveaux to hire a girl full time from December 7 to January 7 not to exceed $2.50 per hour. The following voted in favor: Mayor Klingelhutz, Councilmen Neveaux, Shulstad, and Kurvers. Councilman Hobbs voted no. Motion carried. A motion was made by Councilman Shulstad and seconded by Councilman Hobbs to approve the Regular Council Minutes of November 17, 1975, as amended. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. A motion was made by Councilman Hobbs and seconded by Councilman Shulstad to note the Planning Commission Public Hearing Minutes on Rossing/Wilson Planning Case 75-03 of November 12, 1975. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. A motion was made by Councilman Shulstad and seconded by Councilman Hobbs to note the Planning Commission Public Hearing Minutes on the Proposed Preliminary Plat of Donald Berkey of November 12, 1975. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. A motion was TIade by Councilman Hobbs and seconded by Councilman Shulstad to note the Planning Commission Public Hearing Minutes on Non-Conforming Use Permit for BMT of November 12, 1975. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. .A motion was made by Councilman Shulstad and seconded by Councilman to no·te the November 12,1975, Regular Planning Commission Minutes. following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. Hobbs The PROPOSED LOTUS LAKE INTERCEPTOR: The Assistant City Attorney, Craig Mertz, discussed this proposed interceptor. The City in cooperation with Eden prairie is trying to get this declared an interceptor. The Attorney's Office is waiting for the appropriate maps and engineering data so that resolutions can be drawn up. PENDING SEWER ASSESSI~NT - ROBERT CAIRNS: The City Attorney has received a letter from Mr. Cairns who is purchasing a house in Carver Beach and is requesting a reduction in the pending assessment because the bids came in low. Mr. Cairns will have to escrow 150% of the amount of the pending assessment. The City Attorney's office made no recommendation in this matter. Regular City Council Meeting December 1, 1975 -2- A motion was made by Councilman Neveaux and seconded by Councilman Hobbs to deny the request of Robert A. Cairns in his letter of November 24, 1975, requesting a change in the pending assessment I against his property at 6620 Iroquois. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs and Neveaux. Councilman Shulstad voted no. Motion carried. MINNEWASHTA PARKWAY (COUNTY ROAD 15) The City received a letter from Pat Murphy, Director of Public Works, Carver County. The City is requesting of the County final payment on a portion of this road. The Public Works Director is concerned with blacktop curb on Minnewashta Parkway. There are no plans for blacktop curb by the City. Mr. Murphy wants to be sure that when the County turns this road over to the City that the City will not require them to put in a blacktop curb. The Acting Clerk-Administrator will write Mr. Murphy a letter stating there are no plans to put in blacktop curb. COUNTY STUDY COMMITTEE: A motion was made by Councilman Neveaux and seconded by Councilman Shulstad that the Council appoint Nick Waritz of the Planning Commission to the Study Committee of the Carver County Zoning Office in re Don Welch's letter of November 20, 1975. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. PROJECT 75-3 GREENWOOD SHORES SEWER, WATER AND BLACKTOP STREET IMPROVEMENT PROJECT: The Council would like comments from Mr. Chenoweth regarding bonding for the City Projects. I RESOLUTION #75-56: Councilman Hobbs moved the adoption of the following resolution: WHEREAS pursuant to a resolution passed by the Council on September 15, 1975, the City Engineer has prepared the plans and specifications for the Improvement Project 75-3 and the Engineer has presented such plans and specifications to the Council for approval. NOW THEREFORE BE IT RESOLVED by the City Council of Chanhassen, Minnesota, 1) that such plans and specifications are hereby approved 2) that the City Engineer shall prepare and cause to be inserted in the official City Newspaper an advertisement for bids upon making of such improvement under such approved plans and specifications. The advertisement shall be published for 21 days, shall specify the work to be done, shall state that bids will be opened and considered by the Council at 11:00 a.m. on January 8, 1976, .in the Council Chambers of the City Hall and that no bids will be considered unless sealed and filed with the Clerk and accompanied by a cash deposit, cashiers check, bid bond or certified check payable to the Clerk for 5% of the amount of the bid. Resolution seconded by Councilman Shulstad. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. LAREDO LANE ADDITION: Doug Hansen and Jim Hawks were present. A letter was received from Hansen and Klingelhutz requesting deletion from the plans mountable curb on Laredo Drive and on Iroquois as they are not a part of Laredo Lane Addition. I A motion was made by Councilman Neveaux and seconded by Councilman Hobbs to accept the Engineer's recommendation of August 4, 1975, in regard to the $8,700 cost figure for placing concrete mountable curb on Laredo and Iroquois Drives and opt for option #3 to leave that item out until such time as a general curb and gutter improvement is - - - -- - - --- I I I Regular City Council Meeting December 1, 1975 -3- I contemplated. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shu1stad. No negative votes. Motion carried. DEVELOPMENT CONTRACT FOR LAREDO LANE ADDITION: A motion was made by Councilman Hobbs and seconded by Councilman Shulstad that the escrow bond for Hansen and Klingelhutz.be reduced to $15,565 in accordance with the table outlined in Schoel1 and Madson's letter of November 25, 1975. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. KIOWA CIRCLE: The Acting Administrator suggested the Council table action on this. A motion was made by Councilman Neveaux and seconded by Councilman Hobbs to table the drainage problem on Kiowa Circle until the next regular meeting. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. EASEMENTS FOR PROJECT 75-2: Craig Mertz gave a progress report on the 37 easements for this project. Councilman Neveaux asked for a monthly progress report from the City Engineer on this project. PRELIMINARY PLAT - DONALD BERKEY: Mr. Berkey was unable to attend. These 20 plus acres are located on the northwest shore of Lake Minnewashta. He is proposing to plat this property into one large outlot of 19 acres, an outlot to provide pedestrian access to Lake Minnewashta and three buildable lots. The existing zoning is R-l. The City Planner explained that there is a localized drainage problem on Lot 2, Block 2 of this proposed plat. There is sufficient land area in Lot 2, Block 2 to handle the drainage problem but he feels this is a separate issue from this plat. The Planning Commission recommended that Mr. Berkey pay up all past due accounts on the original proposal before the Council consider the preliminary plat. Mr. Berkey was sent a statement on November 18, 1975, and has not had a chance to respond to it. The Planner recommended that the City take action on the preliminary plat and not do anything with the final plat until Mr. Berkey settles up with the City. The Planning Commission held a public hearing and recommended that the Council approve Mr. Berkey's subdivision subject to the transfer of Minnewashta Parkway to the City of Chanhassen. The Planner stated he felt at that time that the transfer of Minnewashta Parkway to the City was in the very immedîate future but it could be upwards of two or three years. The Planning Commission has considered the impact of future buildings on Outlot A on the lake access via Outlot B and feel there is nothing more appropriate that can be done at this time. Outlot B is not large enough to be built on. The City Attorney recommended that if this is approved, approval be conditioned upon the owners of the property executing the appropriate drainage easement in favor of the City across the southerly most portion of this property located between County Road 15 and the lake. Said easement be of the width recommended by the City Engineer. A motion was rriadeby Councilman Neveaux and seconded by Councilman Hobbs to approve the Berkey Preliminary Plat of Minnewashta Creek First Addition dated October 2, 1975, with the condition that Mr. Berkey bring Regular City Council Meeting December 1, 1975 -4- up to date all outstanding charges by the City for this and previous platting procedures with the City. That he work closely with the City I Attorney and Engineer to eliminate the drainage problem across the south portion of Lot 2, Block 2 of his plat. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. Councilman Hobbs - I did have some concern with Outlot B but based on the Planners comments that this is in accordance with good land use planning I will vote for this. MINN-KOTA PROJECT 71-lE: The Assistant City Attorney informed the Council that there is a meeting set up with Minn-Kota's Attorney, the City Engineer, and City Attorney for Wednesday December 3. NON-CONFORMING USE PERMIT - BMT: Bill Turner was present. The following letter dated November 26, 1975, was received from William Haug, Mr. Duane Johnson's Attorney: "Please be advised that this office represents Mr. Duane E. Johnson with regard to the application of William M. Turner (BMT) to revise the existing nonconforming use permit which was initially granted by the City of Chanhassen on July 11, 1973. Mr. Johnson is the owner of the property surrounding the property which is the subject of that use permit. This letter is to serve as a record of our opposition to the said application and to further serve as our request that when this matter is heard on December 1, 1975, that you make a finding that BMT has failed to comply with the conditions of the existing permit. I Mr. Johnson and I appeared at the Chanhassen planning commission meeting on October 22, 1975, and informed the commission that BMT has failed to abide by several of the terms and conditions of the original nonconforming use permit issued in 1973. We reminded them that this permit required strict compliance. The matter was then set over for a public hearing on November 12, 1975, in which the planning commission recommended that the City Council approve the application. At that meeting your city attorney advised the planning commission that the scope of their review should be limited to the following: a. Review BMT's compliance with the conditions of the existing permit. b. Review the current application to determine whether the requested changes would constitute a use more intensive than that granted by the original permit. It appears clear that Section 20.02 of your zoning ordinances prohibits any enlargement, alteration or intensity of a nonconforming use. It would be my opinion that modification of any of the 20 terms and conditions of that original use permit would be enlarging, altering or intensifying that nonconforming use permit. We respectfully request that you deny this application and that you further enforce the existing nonconforming use permit with respect to the terms and conditions which require strict compliance. We feel I that you have no authority to enlarge this permit and we are prepared to put this matter before the District Court in the event you should approve this application and also to seek from the Court enforcement of the existing permit if it is not enforced by the City of Chanhassen. - I I I Regular City Council Meeting December 1, 1975 -5- Neither my client nor I shall be in attendance at the meeting of December 1, 1975. You may read this letter into your record as evidence of our opposition to this application. II Bruce Pankonin - BMT is a small manufacturing facility operating as a non-conforming use on Highway 41. Councilman Hobbs - Is it true, does Mr. Johnson's property actually surround this property as outlined in this letter of Mr. Haug's? Bill Turner - It is on two sides, south and east. Bruce Pankonin - Just as a point of clarification the reason you received the approximately 25 page epistle on the Planning Commission deliberations on this project is because we anticipated Mr. Johnson's letter of December 1, 1975. We wanted a complete and accurate record of the proceedings stating what everybody said and what caused the Planning Commission to act the way they did. BMT is a legal non-conforming use operating on this land as more or less of a home occupation that employs a few people. Most of the people they employ are housewives and students. They manufacture small electrical components for the automobile industry and others. When Mr. Turner leased this property from the owners who operated a box plant at one time, an antique shop, a manufacturer and distributor of artifical flowers and all sorts of things, Mr. Turner headed into an agreement with the City called a legal non- conforming use permit which spelled out his operation and he signed this document. Annually Mr. Turner comes in for review as per the agreement. In April of this year the City Council took a look at Mr. Turner's operation and they gave him a permit for another year. On October 16 Mr. Turner petitioned the Planning Commission to consider certain changes to his non- conforming use permit. Although there isn't a specific ordinance authorization for the Planning Commission to hold a public hearing to consider changing a legal non-conforming use the Planning Commission did so and held a public hearing on November 12. The record of the hearing is that 25 page epistle. The Planning Commission on November 12 reviewed the terms and conditions of Mr. Turner's legal non-conforming use permit and they identified four non-compliances to the terms of the permit. He is renting a portion of the property in violation of item #5 of his agreement with the City. Products other than small electrical components were manufactured and assembled on the premises. This is the Arteka firm which is leasing part of his property and they made a number of benches and other things. They are the landscaping firm for the East Hennepin rejuvenation in Minneapolis. Shipment of goods and materials has been via trucks in excess of l~ tons as stated in item #14 and outside storage was observed in violation of item#17. The Planning Commission on November 12 recommended to the City Council that certain changes be made to Mr. Turner's Regular CitX Council Meeting December 1, 1975 -6.... non-conforming use permit. They said essentially that they feel that Mr. Turner should be allowed to rent the garages to someone else and that the people I that rent the garages should live within the terms of the non-conforming use contract. The Planning Commission also on November 12 recommended that item #14 be deleted, that's shipment of goods via vehicles of less than l~ tons be deleted because that's totally unenforceable; Mr. Turner has no control over things coming into his factory on vehicles less than l~ tons. The Planning Commission felt that this was unenforceable. That's basically the Planning Commission's recommendation. They found four violations of his non-conforming use permit and recommended that item #5 be changed and item #14 be changed. My comments on this issue are that the City has recognized the legitimacy of non-conforming uses; By the mere fact of adopting a zoning ordinance you are naturally going to create certain non-conforming uses as you amend the ordinance in the future and you are going to create additional non-conforming uses. In order to make.Ordinance 47 feasible back in 1972 from political, financial and really a constitutional point of view Ordinance 47 allowed these non-conforming uses to continue in existance conditioned upon specific requirements, they cannot enlarge, they cannot intensify, and if its partially destroyed by fire, act of God, I riot or any of these things less than 50% he can rebuild it like they did the cement plant. If it's more than SOt destroyed any use that goes on the property has to be in conformance with the ordinance. There is a period of amortization. This being a block building it's 27 years or something like this. Any new uses that come onto the property can continue in existance just like Mr. Turner's operation or new non-conforming uses could come in which are less intensive that Mr. Turner's operation. The City Council back in 1973 determined that Mr. Turner's operation was less intensive than the operation previous to that, therefore, the continuance of a non-conforming use. In July 1973 Mr. Turner agreed to operate a small manufacturing facility on Hazeltine Blvd. subject to certain conditions as outlined in his non-conforming use contract. It's my view as Zoning Administrator that the 20 conditions as outlined in BMT's non-conforming use permit are the minimum standards for the use of his property and any new use or re-use of the property would have to be less intensive or in conformance with the permitted uses of the R-lA use district. I recommend, therefore, that the proposed changes as suggested by Mr. Turner and the recommendations of I the Planning Commission are inappropriate and would violate the spirit and intent of Ordinance 47. The only action that the City Council can take is to allow Mr. Turner to continue in operation for the specified period of amortization in conformance with the agreement with the City. -- - - - - - - ---..- I I I I City Council Meeting December 1, 1975 -7- Councilman Neveaux-Let me open the Council discussion by making a statement for the record that I intend to participate in the discussion and the voting on this particular issue notwithstanding the fact that I have a son that works full time for BMT. He is 20 years of age, does not live at home and is not a dependent so I feel I can look at this in a very effective manner but in view of the fact that there might be possible litigation involved I want the record to state that this is the fact and I want everybody to be aware of that. Craig Mertz - Mr. Neveaux, do you feel that you can make an impartial decision on this matter? Councilman Neveaux - I honestly feel that I can. Craig Mertz - I would like to make a comment then. At this point you have Russ's (Russell Larson) letter of November 10 and in that letter the last two sentences he says, "it is my opinion that Section 20.02 prohibits a more intensive non-conforming use" thus it is the opinion of our office that the only way you can accommodate Mr. Turner is by making a finding that the changes he proposes do not constitute a more intensive use of the property. If you cannot in good faith make such a determination you have no other recourse. If you feel that this is a more intensive use you cannot accommodate Mr. Turner because reforming the non-conforming use permit here would not be authorized by the ordinance. Councilman Hobbs - tet me ask the attorney a question. What do the Courts do when they feel that, and I am sure that's happened at some time in the past, that "bad law" has been made. How do they go about correcting that? Craig Mertz - There is a peculiar wrinkle in this cé1.se in that there is a contract involved between the two parties, the City and Mr. Turner and he agreed to the previous terms. I also would like to state for the record that I received a call today from Mr. Bill Miller, the Attorney for Mr. Turner, and Miller related tome that he was not going to attend but he wanted me to state his position for the recordc and that was 1) with respect to the Arteka tenancy in the subject property, it is Turner's position that Arteka was in this property at the time the first permit was issued and that this is simply a matter of where the written document fails to conform to the intentions of the parties to this document, hence he thinks a reformation would be appropriate. The second argument with respect to the truck size is that his client did not realize the implications of what he was signing when he put his name on this doc~ent that restricts him to l~ ton trucks. Councilman Neveaux - May I ask the attorney where the requirement of a non-conforming use permit appears in Ordinance 47? Craig Mertz - I don't think it does appear in Ordinance 47. The rationale as· I see it for this permit is the fact that when the zoning ordinance was first enacted the use on that property was a greenhouse, warehousing, wholesaling f¡o~er txpe operatiQn. That use was discontinued. Jf City Council Meeting December 1, 1975 ~8~ we look at Section 20.04 of the Zoning Ordinance it says that in the event that a non-conforming use is discontinued for more than one year any subsequent use of the premises shall be in conformity with the ordinance, hence the property should have reverted to residential agricultural type use. Bruce Pankonin - I do not believe that a year elapsed. Councilman Neveaux - Section 20.04 does not apply in this case. Section 20.02 is what we should be looking at and I find nothing in 20.02 in regard to the necessity for a non~conforming use permit having to be issued. I think we would find it very difficult to support said permit. I think it was selective action that was taken by the City Council at that time specifically against Mr. Turner when there are other non-conforming uses that change hands throughout the City in the past several years where such permits were not required. Craig Mertz ~ I would have to look back in the minutes but by virtue of the fact that such a contract or permit was prepared and executed by both parties, the Council must have found that there was a change of use. Councilman Neveaux - Obviously there was a change of use but that could have been covered in 20.02 and I think that this is the problem we are having as I read the minutes of the public hearing of the Planning Commission that Mr. Turner has made a commitment to, in I good faith, to fulfill some obligations that were as the Planning Commission says unenforceable. Craig Mertz - Did Mr. Turner make any structural alterations in the building when it changed from the greenhouse to manufacturing? Bill Turner - Not on the exterior. I have on the interior¡ painting, moving walls, I put in a kitchen. Acting Mayor Kurvers - I guess I can't understand why when Mr. Turner agreed to the contract why that is law. Councilman Neveaux - I think this was on the recommendation of the City Attorney at that time. It is a contract. Acting Mayor Kurvers - Is that the right contract? Is that the only contract? Councilman Neveaux - I don It think the contract is necessary according to the strict interpretation of Section 20 which is non-conforming uses of the ordinance. Contracts or permits are necessary for Section 23 under conditional use which could have been handled too. Councilman Hobbs - If Mr. Turner has to come in once a year then are you telling me that this contract goes on in perpetuity or does it expire at the end of that twelve month period when he has to re-apply for his non-conforming use? Jerry Schlenk - It is from year to year. Councilman Hobbs - Maybe the simplest way to handle the problem would be to all live with it until the first of April of 1976. Councilman Neveaux I think actually for all practical purposes it has expired now. Jerry Schlenk - It was renewed last year, April 21, 1975. I I I I I City Council Meeting December 1, 1975 -9- Councilman HobÞs - At that time we could rewrite or eliminate it completely whatever the case might be. In the interim let it stand status quo. Acting Mayor Kurvers - I think that this one has just about lived up to the obligations. Councilman Hobbs - His record is better than average if he has only been questioned on four out of twenty. Bruce Pankonin - This is not a conditional use permit. It is a non- conforming use and we have a few non-conforming uses. Councilman Neveaux - This is the only one that has a permit. Bruce Pankonin - In the Zoning Ordinance under Section 25.02 the Zoning Administrator shall conduct inspections of buildings and use of land to determine compliance with the terms of the ordinance. What that means is that the Zoning Administrator is to determine and set the standards for a non-conforming use. In 1973 you operated like this, from now on you can operate it like this, any new non-conforming use has to be more restrictive or in conformance with the existing use. Hence the permit because the issue was raised in 1973 when Mr. Turner came in probably by Mr. Johnson that, hay, this is a non-conforming use but the City Council said however, a non-conforming use can continue in existance and these are the terms and conditions that he will operate under, therefore, he can because he is going to be conducting a business which is less intensive than the previous use. Councilman Neveaux - You are doing some surmising, Bruce. Acting Mayor Kurvers - Why is that any different than Halla Nursery? Councilman Neveaux - It is a permitted use. This is a non-conforming use. I don't think anyone will question that fact. Mr. Turner admits it's a non-conforming use. I question why we have to hold him to conditions as a non-conforming use that we don't ask of other people that are non-conforming uses. In fact some of those restrictions are such that he can't even operate as a permitted use and not accept deliveries from a l~ ton truck. It is absolutely ridiculous. I question the necessity for the whole permit to begin with. I can see when you have someone in question that perhaps has a history of non-compliance where you want to make sure that the mark has been towed but I think with Mr. Turner's track record there is no question but that he has been more than an acceptable neighbor. My idea of what's happened down there is nothing but good. He has made it a very acceptable piece of property. But tÒ- - penalize a man that's first of all a Chanhassen resident himself and supplies a need within the community for this kind of activity and operates it totally within four walls of the building. Councilman Hobbs - I think, John, (Neveaux) your point is well taken and realizing that nei~her you or I are attorneys but I think that out of the 20 points there are four or five that are completely unenforceable and I think that some of the language lends itself to many interpretations, what's a small air press, ~hat's a small welder. I think item #6 as far as City Council Meeting December 1, 1975 -10- Craig Mertz - outlining, and I wasn't on the Council at that t.i..me, the sp ecificproducts that can be manUfacturedl is reall~ r~diculous. I think we have a bad contract or permit or whatever it is and I think we should take the most expeditious route around it. I think some of the items are probably good, vehicle parking and things like that, that we write into other permits. There can be some restraints put on there you don't give them a blank Check but I just think it is a unenforceable document. Kurvers - I think he took care of most of the items. He tried to follow it. The matter of the permit or contract is signed. question raised by Mr. Johnson or his allegation these four violations that were discussed at the Commission level amount to an intensification or enlargement of a non-conforming use and that issue has to be faced regardless of whether or not you think a permit is wise. Kurvers - The is that Planning Acting Mayor Acting Mayor The violat~ons are there according to this contract but we have a right to change that, don't we? Craig Mertz - I think so. Councilman Neveaux - If it's mutually agreed. Bruce pankonin - I think Craig's (Mertz) opening comments to you come into play now. If you feel it is not an intensificatiol of the legal non~conforming use. Craig Mertz - Thatls a factual question that only the Council can deal with. The Planner can give his recommendation as to how he views the facts. The Attorney should not and I am not going to give an opinion. Councilman Hobbs - There is certainly a wide area here and we can create many jobs for a lot of people if it goes to court but looking over the planning report of November 21, 1975, item A, he wasn't doing anything that wasn't being done previously so I don't see that he's expanded the use. Item B talking about the wooden things that were made, at least Mr. Turner and Mr. Bailey seem to think they got the tacit approval of Mr. Johnson to do this. They didn't embark on it and some of the testimony Mr. Turner was concerned about Mr. Johnson who supposedly Mr. Bailey had talked to. I think item C we have discussed. Item D relates back to item B and that Mr. Johnson was told by Mr. Bailey that there would be outside storage and evidently tacitly agreed to it. Of the four items that were pointed out as being in violation I don't see that they are all violations in the first place and in the second place I don' -t see that any of them expand the use on that particular piece of property. Councilman Shulstad - I have to disagree with Walt (Hobbs). I think if W8 are going to look at this objectively and by the letter of the agreement and Ordinance 47, 20.02 that the City Planner is correct. I support his position on the thing. Craig Mertz - A motion to find that these four things do not intensify the use would require a 4/5 vote. I I I I City Council Meeting December 1, 1975 -11- Councilman Neveaux - Can you (Bruce Pankonin) list the four issues? Councilman Hobbs - While you (City :Pla.nner) a.re doing tha.t,two of those were temporary in nature, the storing of the material and the construction of the wooden whatever. Bill Turner - The period that we talked to Mr. Johnson about and the period that we had intended was something between four and five weeks and then Arteka suffered a strike which shut down the whole project. That kind of closed them down too so they weren't doing anything but the materials were still stored outside. The materials were 6 x 6 timbers ten feet long and there were two neat piles of them. They did stay there for a period of seven or eight weeks. Councilman Hobbs - The reason I asked that I think if they were going to into this on an ongoing basis it would definitely be expanding the use. I think that they were aware of the permit they had signed here and they made an exception to the rule and evidently according to these people felt they had the blessing of Mr. Johnson. Mr. Johnson may tell us something different. I guess I don/t find that that strange that somebody might go outside of something for a temporary period. I would agree with Craig (Shulstad) if you were going to do this on an ongoing basis and it would be an enlargement of the use. Bruce Pankonin - One point for my clarification, it appears that when BMT came in they gave the City a letter and said this is who we are and this is how we are going to operate. The attorney at that time took the letter and wrote up this contract saying that Turner says he is going to be doing a lot of these things let's have him put his signature to a piece of paper. So that the attorney did not dream up these things they were from a certain letter. Bill Turner - I wrote a letter in which I said this is typical of the way we operate and he turned around and said fine, we will turn that into a contract. Bruce Pankonin - And at that time the Council made a judgment saying that your operation was less intense than the Park Avenue Greenhouse operation. Why did the permit all come about? Was Johnson at that time putting pressure to get rid of the buildings and any uses going in there? Hence a contract or something definitive to spell out the operation. Bill Turner - The pressure at that time was mainly from Russ Larson. He had written this contract. We can go back into the records but I objected vigorously to the document point by point finally I was kind of told well you don't want to sign this you don't want the property. I finally signed the document and at the time I said I don't think I can live, I say I do not own antruck I do most of my shipping with a station wagon. This is still a matter of absolute truth but at the time I turn around and see a document to sign saying I will never let a truck on the property bigger than l~ ton I said gee, I don't know that I can do that. Finally somebody says look you either want the property or you don't. You sign this you get the property and after that it's largely a matter of living with your ne~ghbors. This is where I made my mistake I relied upon my ability to clean that place up and live with the people around there and I have done a pretty good job. I have got one exception but City Council Meeting December 1, 1975 -12- basically I am getting along swell with the neighbors. They all came down here and I think they 'are pleased to have me there. I think it's a matter of some importance I that Mr. Johnson says he lives with me and can see me this is not true. Any of you who have been by know that Mr. Johnson can't see our plant most of the year because there is a grove of trees between me and him. Three of the other neighbors who can see it and see it all the time not only approve os us but were not aware of this horrible project that went on. They did not see the timbers. They did not see all the trucks. They did not see anything at all that bothered them. Acting Mayor Kurvers - Who owns this property? Bill Turner - It is owned now by Park Avenue Greenhouses which is now a conglomerate of some sort in Florida and is called united Horticulture and the guy I deal with is Wayne Anderson who is a Vice President of united Horticulture. Acting Mayor Kurvers - How much land is involved in this? Bill Turner - About 2 3/4 acres. Johnson is to the south of me and to the east of me and of course the road is on the front. Mr. Johnson actually drives into his property on an easement across the front of the United Horticulture plant property. Mr. Donlin is only 50 feet away from me. His living room windows look at me. Councilman Neveaux - We/ve got two issues here that I am concerned about. Of course we've got Mr. Johnson's request for action to be taken by us in regard to the four violations of the existing contract in which we have got I to come to grips with. We also have to come to grips with the fact of shall we allow Mr. Turner to continue in operation there and if so then we mus either renew the IIcontract: as such in April when it comes up again or we must respond to his request for a change of the conditions that he has requested. I can't see really legally anything other than taking Bruce's (Pankonin) recommendations as such, that he should be allowed to continue under the existing permit. In other words disallow his request for the changes in the permit because in fact they would intensify land usage under the non- conforming section 20.02. I am hung up on the reason that we have to have him operate as a non- conforming use under a permit which is oppressive. So that I guess we are going to have to come to grips with also. If we then allow him to continue, in other words if we tell him that he can't get the changes that he wants and he agrees to that, if in fact this could happen, so he says just let me go by the old permit and I'll do the best I can, we have still got to answer Johnson on these violations. What kind of wrist slapping procedure then do we administer to Mr. Turner and he admits basically to doing all of these four things that were in violation of the "permitll. Can we then say to Mr. Turner you were naughty and you violated four of the twenty conditions of the permit and you now say that you will not do it any longer and will operate within the permit, can we administer some kind of punishment to him other I I I I City Council Meeting December 1, 1975 -13- than taking away his right to operate? As far as I can see under Section 20 there is no place for any kind of action to be taken for violations. Bruce Pankonin - It is spelled out in the permit. Councilman Neveaux - I have a question about the necessity for the permit. Councilman Shulstad - The fact is that it exists and was signed by all parties. Acting Mayor Kurvers - We are at a stage where do we want him to operate out there or not and he is a reasonable person and we have dealt with other people that weren't reasonable. I can see some of these violations now #2 I think that is something he should not have in there. #3 should not be in there. The other two are debatable. Councilman Shulstad - I don't think any of us disagree with that Frank (Kurvers). Isn't the solution what was originally suggested by Walt (Hobbs) and that is that somehow we manage to get by until the whole thing is up for renewal and then write a more appropriate non- conforming use permit. That's the only way I can live with it. If I have to make a judgment call on whether or not (a) there have been violations and (b) whether current requests will intensify the use I have to go along with the City Planner. I think he is right. Jerry Schlenk - Table action for further study and let it go until then. Councilman Hobbs - I think we should deal with these violations in a similar manner as we have dealt with other and note them. That's basically what we do with all the rest. We note that illegal signs are up. We note people haven't cleaned up their premises. Councilman Shulstad - I wouldn't like to have that on the record. There is a lot of truth in what you are saying but that doesn't give us any reason to condone that. Councilman Hobbs - I don't condone it. But what's come up a couple of times before on things that were much more serious than this we said Russ (Larson) what can we do and he basically says you can't do anything. You can't fine him. You can't write him a ticket. I don't know. We can tell them that we are very concerned about it and we certainly hope it won't happen again. I don't know what else you can do. Craig Mertz - Mr. Johnson could bring an action against both the City and BMT to enforce the terms of the permit which is a contract that Johnson is a third party beneficiary. It would seem to me that if you want to accommodate BMT you should go through those points one by one and someone make a motion to the effect that the Council finds that point #1 is not an intensification of the non-conforming use in existance on the BMT property. Bruce pankonin -- There are two things, Craig (Mertz). These are violations of the permit and the Planning Commission made two recommendations to change the permit. Those recommendations took care of some of these violations. Craig Mertz - If they are going to want to change the permit they are going to have to make a finding that those points are not an intensification. Council Meeting December 1, 1975 -14- Councilman Neveaux - I question point #2. The permit states that the use shall be solely for the manufacture of small products. Define that one. And welded wire CirCUitlT and the subcontract assembly and packaging of small products. It doesn't say electrical. Bruce Pankonin - I just paraphrased that. Councilman Neveaux - I don't think there is anything there that keeps them in the electrical specifically. I think it allows them quite a bit of latitude in small product manufacture and assembly. Bruce Pankonin - It was brought out by Arteka that they were manufacturing benches, planters, for the revitalization of East Hennepin Avenue. Councilman Neveaux - The question that I would have of Mr. Turner is do you feel that the renting of the property to Arteka should be other than just the renting of the spaces for vehicle storage? Bill Turner - I would not like to have, if I am successful in keeping the ability to rent the garages, you have to tell me that I can rent only to Arteka. What I am saying is that I rent the garages I should ask that the people who rent the garages live up to whatever the non-conforming regulations are. I am not too keen on the permit that I signed but I think that I should live within the non-conforming regulations which say that you shouldn't be intensified. This would simply preclude them bringing in big loads of timber and storing it out in the yard. Councilman Hobbs - They were renting those garages when you took over the building. Bill Turner - They were renting for a year before I took over. Councilman Neveaux - They weren't doing any fabrication? Bill Turner - From time to time they did some. They did most of what little fabrication they do in a garage which is on Jonathan property which burned down. Which is one of the reasons when this particular piece of work came along they asked me if they could perform it in one of the garages. Councilman Neveaux - But previous to that time they did fabrication on your site? Bill Turner - I would say yes because all of the tools were there, etc. I am not completely conversant in detail of what they did on that premises where I moved in. I was pretty handy about that place for about seven months before I moved in because I was making all the plans to move in and our move in was kind of a transition. I moved in and there was a period of about four or five months when both the Green Thumb operation and my operation were cohabiting and gradually they got moved into their new plant and I proceeded to move into the plant from our home. Acting Mayor Kurvers - If Park Avenue Greenhouses stayed there they could have gone on forever. Bruce Pankonin - For the period of amortization. Acting Mayor Kurvers - They could do anything they wanted to do. Bruce Pankonin - As long as they did not intensify it and for the period of amortization. Acting Mayor Kurvers All of these things are more restrictive than what was there. What are we arguing about? Councilman Neveaux - A permit was issued with specific conditions which were not adhered to to the true letter of permit. He should be allowed to continue but how do we I I I I I City Council Meeting December 1, 1975 -15- do it facing litigation. Craig Mertz - I view this permit largely as a contract between the two parties and if both sides are willing you can always reform the contract. The only legal point that's involved is the fact that the ordinance says that you can't intensify a non-conforming use. Hence if you want to reform the contract by dealing with some of those points you are going to have to make a finding that you do not feel that one or more of those items is an intensification of the use that was in there on the date that our zoning ordinance became effective. Acting Mayor Kurvers - Let's do that. How do we go about doing that? Craig Mertz - I would go through those points one at a time and Councilman Hobbs - Wait a minute, let's remember we've got four violations up here and they don't necessarily tie in with the suggested changes, the truck does but I don't think Mr. Turner is asking for outside storage. I think as far as the manufacture of other products we are talking about the large beams coming in. I think John (Neveaux) answered that point. Councilman Neveaux - The thing is there are two fabricators there. There is BMT, Inc. that does small product manufacture basically. He has sublet a portion of that property to Arteka who is involved in other than that small electrical component kind of small produce manufacture. Councilnlan Hobbs - I thought that was a one shot deal. So they are back to just storing their trucks and doing some maintenance on their trucks. The same thing they were doing before. Bill Turner - That would be my intention. I would say this, that what I would like to see is that if we could do something inside that building. I think it kind of ridiculous that I am pinned down for example, I am almost pinned to a product line that is almost obsolete. We no longer make the battery warmers, this is the last year we will make mobile home heaters, and this will be the last year we make the dip stick. Councilman Neveaux - I don't think we are pining you down. A small product to me is not a 10 x 10 six feet long or 6 x 6 20 feet long. I don't think that is small produce manufacture. The non-conforming use was specifically to you and Arteka I don't think we can consider them as being a part of that building in any way. I even question the renting. If you are going to allow them in there and do anything they want that is in clear violation. Bill Turner - What I have said is that if somebody rents that garage they should have to live up to the requirements of a non- conforming use. Which means they should be limited to the amount of noise they make, the odor they make and they shouldn't have outside storage. Councilman Neveaux - If they weren't doing it before we can't give them that right to do it from this day forward. That is definitely expanding that use. Bill Turner - For those of you who haven't seen the property those garages are truck garages. They have 16' x 18' high doors, 35 feet long and they have 24 foot ceilings. The garage has compressed air, 22 3 phase. It is heated and lighted. I am not likely to rent this garage just for the storage of -- City Council Meeting December 1, 1975 -16- something. I get $100 a month for the garage. I don't think Arteka should conduct a business out of there and the one time they did it was a one shot deal that was agreed to. I don't think they are going to be in there on a basis of fabricating products to be sold or anything like that. Their main idea in being in there is to perform maintenance upon their vehicles in the winter months. Councilman Neveaux - And they did that before. Bill Turner - Yes. Councilman Hobbs - are really of no use to you in your I These garages business. Bill Turner - I expect they will be someday. I hope that someday I will own a truck. I hope that someday I will have a use permit that will allow me to own a truck. Councilman Neveaux - Probably in an industrial park somewhere. Where the proper zoning is. Acting Mayor Kurvers - We should either act on it or set up some kind of meeting where reasonable people should be able to get together and talk this particular problem out. I guess Mr. Johnson has a problem but I think Mr. Turner has a problem too. Craig Mertz - Rather than try to deal with this whole package I would suggest going through each point and someone making a motion putting it to a vote as to whether the Council finds that specific point is an intensification of the use and if the Council finds it is not then make a subsequent motion I that the permit be reformed to permit such a use. Acting Mayor Kurvers - We would need all five members present to vote on this. Councilman Neveaux - I don't think we will get past number 1. Councilman Hobbs - We talk about grandfather clauses and non-conforming uses and this that and the other and if the people that are in there now were actually there before this gentleman was there with his company how can you look again and say you're intensifying the use. He is doing nothing that wasn't done before and in all other areas he is doing less. When we talk about 35 foot garages with 18 foot doors and air compressors and 3 phase 220 I think that the man that's leasing the property or the owner would have a good case if you say you have to get everything out of there. Councilman Neveaux - Did you get a statement from Wayne Anderson to the affect that they (Park Avenue Greenhouses) did in fact rent garage space to Arteka, Inc. from a period of so and so to so and so and could you get this statement? Bill Turner - Sure. Councilman Neveaux - This would then solidify the fact that this use did indeed exist. Craig Mertz - If we want to be cautious we could ask for a sworn statement. Councilman Neveaux - I don't have any hang up with renting of the garages and have them overhaul the motors or do whatever maintenance kinds of things but when they are in there and fabricating something. Did they do that before? I I I I City Council Meeting December 1, 1975 -17- Bill Turner - That I cannot tell you but we can find out. I am not on record as having asked permission to have them fabricate in there. Councilman Neveaux - I don't doubt that they rented the garage space but I do question whether they did fabrication. Councilman Hobbs - I think everybody realizes this is an exception a one shot deal that didn't conform with this. They talked to the guy (Mr. Johnson) and got the ok. It would be like your neighbor putting his cabin cruiser in the back yard for the summer to paint it up and you say fine and it stays longer. Councilman Neveaux - I think the point is what kinds of activities were going on in those garages prior to 1972 when that became a non-conforming use. Craig Mertz - Perhaps you would want to make a motion then that this matter be continued until such time as Mr. Turner can produce a letter from a officer of Arteka detailing what activities Arteka was carrying on within the subject property before February 8, 1972. Councilman Neveaux - So move. Bill Turner - Arteka was in there prior to the issuance .of the permit b~t not prior to the Zoning Ordinance. Councilman Neveaux - Then we would have trouble. Councilman Shulstad - We have a legal problem and I think we are trying to play court and we are not in a position to do so. Councilman Neveaux - We are trying to allow this business to continue. Councilman Shulstad ~ I know and I think the best way to do that is to table this. Councilman Hobbs - Let's approach it this way. If we are in agreement that there is nowhere in the ordinance that sayd we have to have the type of permit that was drawn up, it's a non-conforming use, it's less intensive than the one before, that's all it says in here. Why couldn't we ask Mr. Turner to get ahold of his attorney and ask his attorney to have this contract declared null and void? For whatever legal reasons he would set up. Then start allover. People break contracts. I don't know how they do it. Councilman Shulstad - Why not let it expire? Councilman Hobbs - That was my original thought. the simplest way. Councilman Shulstad - Let's continue this thing until it expires. That way because I think you are inviting action on Mr. Johnson's part if you declare a contract that you held up to be valid be suddenly non valid. Craig Mertz - As I mentioned before both parties to a contract can always agree to reform it and that includes wiping the thing out. Councilman Shulstad - I think that would be I think John (Neveaux) is right if we can get some kind of documentation concerning Arteka's prior involvment that should help on the first one. Councilman Neveaux - Prior to the date of the initial non-conforming use permit. Councilman Shulstad - Then I think if we can just let this thing expire on its own that's the best way to deal with the permit. I guess we are risking court action. Craig Mertz - As I mentioned before, Johnson, I don't know how much justice he can afford but he could sue both parties to that City Council Meeting December 1, 1975 -18- contract alleging that he is a third party beneficiary being he is a citizen and a constituent of Chanhassen and if he wants this contract that both parties freely I entered into to be enforced. Councilman Hobbs - Why can't we beat him to the punch and dissolve it? Then we are on firm ground. We can dissolve it on grounds that we feel in certain areas it is an unenforceable contract. Which it is. Councilman Shulstad - I thought that contract was between the parties involved and therefore should be resolved by those parties rather than the Council. Councilman Neveaux - We are the City. It is between the City and BMT. Councilman Hobbs - If we do that then we take away the basis for him to sue us. Why don't we have our attorney contact his attorney and see what they can work out. Craig Mertz - We have already talked. Councilman Hobbs - I don't want to be sued and we have got a problem and if that would at least wipe out that part we could start clear. I would be agreeable to doing that. Acting Mayor Kurvers - When you've got good housekeeping it IS sure tough to have a business isn't it. Councilman Neveaux - I would be in favor of trying to dissolve or reformulate: the non-conforming use permit. Craig Mertz - Mr. Turner has distilled his requests down into two so we know what his position is. what two points he wants to have reformed and if you want to so reform the contract the only way you can do that is find such a reformation I is not intensification of the use. Bill Turner - What about the concept though that there shouldn't be a permit in the first place? This is the line that my attorney, I didn't bring an attorney into this until Friday. Obviously I should have two years ago. This is the position he would like to take. He says you should not have a permit. You should not have been required to have one. There should not be one now. Acting Mayor Kurvers - Are we doing something illegal? Craig Mertz - No. Both parties freely agreed to enter into this permit or contract. Councilman Neveaux - If he didn't sign it he could have taken us to court for forcing him to sign. As we look at it now it was a contract that was really oppressive to Mr. Turner. It had some good points to it but I think it went overboard a little bit. Councilman Hobbs - I think if you just get rid of it and say that he's got a non-conforming use and it has to in the spirit of the ordinance be less intensive than the use before it. If an individual or citizen has a complaint they can bring that complaint or complaints up to the Council and we can review them in light of that and say you are right or you are wrong. Let each one stand on its own merit. That's how I I would like to see it done. Councilman Neveaux - That's the way the ordinance reads. I made a motio but I guess it died for lack of a second. Councilman Hobbs - I didn't know you made one. Craig Mertz - The motion as I recall was to table the matter until such time as Mr. Turner produced a letter from an officer of Arteka explaining what activities Arteka carried on in I I I City Council Meeting December 1, 1975 -19- the subject property before July 11, 1973. Bruce pankonin - Was there anybody renting the garages other than Arteka? Bill Turner - Not since I have been there. Bruce pankonin - No, prior to the existance of the zoning ordinance. Bill Turner - I would have to find out. I don't know. Craig Mertz - The key date here is the date that the zoning ordinance went into effect. What we were suggesting is that maybe if these garages were rented previously that might be part of the non-conforming use. If that's true it would have had to have been engaged upon before the ordinance was enacted and the date the permit was first issued would be irrelevant. Councilman Neveaux - Do you want to make it the date the period between the date of the zoning ordinance adoption and the date of the contract. Craig Mertz -It wouldn't have any legal affect if you are searching for any facual grounds it would indicate that renting that subletting property is part of their non-conforming use we would have to have facts that would demonstrate that subletting was going on prior to the enactment of the zoning ordinance. It would have to be prior to February 1972. Bruce pankonin - The key dates are one year before the adoption of the ordinance and the date of the adoption of the ordinance. Within that period. Craig Mertz - I would say Arteka or its predecessors. Bruce pankonin - I stand corrected it would have to be on the date of the adoption of the ordinance because before the adoption of the ordinance you had nothing. No uses were permitted. It was zoned something else. It would have to be on the effective date of the ordinance someone had to be renting those garages. Bill Turner - On that exact day? Craig Mertz - Existing at the time of the adoption of the ordinance. Bill Turner - Supposing there had been a pattern set up of ~rregular renting. Councilman Neveaux - The only pattern that was set up was after the adoption of the zoning ordinance. Then it had to continue or if it was discontinued for a period of a year then it would have to be replaced by a conforming use. It would have to have been existing either directly on the date of the adoption of the zoning ordinance or before and been carried through that date. Acting Mayor Kurvers - Is there a second to that motion? A motion was made by Councilman Neveaux and seconded by Councilman Shulstad to table this matter until such time as Mr. Turner produces a letter from Arteka or its predecessors as to what activities were carried on on subject property prior to February 8, 1972. The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. Bill Turner - It started out that we were talking about whether the garages had been rented prior to my taking over now all of a sudden it has gone back two years earlier than that. What changed the issue? Craig Mertz - We are looking for the key date on this rental of garages issue if we want to say that this is a part of your non- conforming use as to demonstrate that someone was subletting those garages on the day that the ordinance was enacted. City Council Meeting December 1, 1975 -20- Bill Turner - The real question is am I a more restrictive or equally restrictive than the previous and that means Councilman Neveaux - You are less restrictive if you allow the I renting of the property to Arteka according to the terms of the permit that you agreed to in 1973. We are trying to establish that that was an on-going kind of operation. Bill Turner - On-going means that it was before I got in there it was already going on. I am reasonably certain Arteka was not in there and had never rented a garage. Councilman Neveaux - How about somebody else. Councilman Hobbs - The thing that disturbs me is if you are talking about those large garages, they seem to be very, large, and I don't think that if they were there before this ordinance was adopted you can put the kind of restrictions to completely eliminate the use of those structures I think then that property owner would have cause to file suit. I think we have got the same thing if you look at 20.05 under junkyards and you go down to 169 and 212. No junkyard may continue as a non-conforming use for more than one year after the effective date of this ordinance. He was there and he is still there and I think if, again I don't know the value of those buildings, if a man built a 35 foot garage 18 feet high and you tell him he can't use that garage I am not so sure he doesn't have very I good grounds to say ok compensate me for it. Councilman Neveaux - He can use it. But can he rent it out to another kind of business? Bill Turner - You have to understand that what used to be in there was a fleet of trucks and they were great big refrigerated semi-trailers. They were big. Acting Mayor Kurvers - You should have more capabilities of use than you have because of what was going on there before. We will try and help you as much as we can. KOEHNEN DUPLEX: The Assistant City Attorney stated that Gordon Koehnen through his attorney has re-opened the lawsuit that was tried some time ago. He is seeking an order from the court that he be allowed to have triplexes. This matter is not going to come up for trial until at least 60 days. The Acting Administrator has talked with Hr. Jim Penberthy, Attorney, on this matter. Mr. Penberthy would like to meet with the Council. STREET SIGNS: The Acting Administrator presented a sample number sign that could be attached to street name signs at a cost of $2.25 each. The Maintenance Superintendent is trying to find a less expensive sign. RAY BRENDEN: RESOLUTION JÞ75-57: Councilman Neveaux moved the adoption of a resolution assessing Ray Brenden for one water lateral unit $1,132.00 and one water trunk unit $380.00 payable over a period of 13 years to coordinate with the north area sewer service district. The first installment payable with taxes in 1976 at an interest rate of 7% retroactive to October 1973. Resolution seconded by Councilman Hobbs. I I I I City Council Meeting December 1, 1975 -21- The following voted in favor: Acting Mayor Kurvers, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. BURROUGHS: A representative from Burroughs will be out Thursday morning at 8:30 a.m. regarding the accounting machine. A motion was made by Councilman Shulstad Neveaux to adjourn. The following voted Councilmen Hobbs, Neveaux, and Shulstad. adjourned at 11:30 p.m. ¿/ /? ~/¿112¿)or;L,¿L ~ ~e ~¿<;e¿I/ Jerry Schlenk Acting Clerk-Administrator and seconded by Councilman in favor: Acting Mayor Kurvers, No negative votes. Meeting