6. Zoning Ordinance to Amend Section 20-237 Revocation and Inspection CUP's CITY O F P.C. DATE: July 5, 1989
ClIANIIASSZN NI ' C.C. DATE: July 24 , 1989
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CASE NO 89-1 ZOA
I Prepared by: Olsen
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STAFF REPORT
1 PROPOSAL: Zoning Ordinance Amendment to Section 20-237 of the
City Code, Conditional Use Permits
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2 LOCATION:
IR: APPLICANT:
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IPRESENT ZONING:
ACREAGE:
IIDENSITY:
ADJACENT ZONING
11 AND LAND USE: N-
Q S-
I 1 � E-
I W-
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WATER AND SEWER:
Ii PHYSICAL CHARAC. :
[ 2000 LAND USE PLAN:
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ORDINANCE NO.
I
CITY OF CHANHASSEN I
CARVER AND HENNEPIN COUNTIES, MINNESOTA
AN ORDINANCE AMENDING CHAPTER 20, SECTION 20-237 I
OF THE CHANHASSEN CITY CODE CONCERNING
CONDITIONAL USE PERMITS I
THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS AS
FOLLOWS: I
Section 1. Section 20-237 of the Chanhassen City Code is
amended to read as follows:
Sec. 20-237. Revocation and Inspection.
(1) Failure to comply with any condition set forth in a I
conditional use permit shall be a misdemeanor and shall also
constitute sufficient cause for the termination of the
conditional use permit by the City Council following a public I
hearing.
(2) The City Council may order annual or more frequent
inspections to determine compliance with the terms of a I
conditional use permit. The property owner shall be notified in
advance of the City Council's review of the permit.
Section 2. This ordinance shall be effective immediately f
upon its passage and publication.
I
ADOPTED by the City Council of the City of Chanhassen this
day of , 1989.
II
CITY OF CHANHASSEN
II
BY:
Donald J. Chmiel, Mayor II
ATTEST:
Don Ashworth, City Manager II
11
I1
441
1i
iI
ORDINANCE NO.
CITY OF CHANHASSEN
' CARVER AND HENNEPIN COUNTIES, MINNESOTA
AN ORDINANCE AMENDING CHAPTER 20, SECTION 20-237
OF THE CHANHASSEN CITY CODE CONCERNING
CONDITIONAL USE PERMITS
THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS AS
' FOLLOWS :
Section 1 . Section 20-237 of the Chanhassen City Code
' is amended to read as follows :
Sec. 20-237. Revocation and Inspection.
' ( 1) Failure to comply with any condition set forth in a
conditional use permit shall be a misdemeanor and shall also
constitute sufficient cause for the revocation of the conditional
use permit by the City Council following a public hearing. The
property owner shall be notified in advance of the City Council' s
review of the permit.
' ( 2 ) The City Council may order annual or more frequent
inspections to determine compliance with the terms of a con-
ditional use permit.
' Section 2. This ordinance shall be effective imme-
diately upon its passage and publication.
' ADOPTED by the City Counci of the City of Chanhassen
this day of , 1989.
CITY OF CHANHASSEN
' BY:
Donald J. Chmiel, Mayor
ATTEST:
Don Ashworth, City Manager
1
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Planning Commission Meeting
II
July 5, 1989 - Page 11
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Emmings : No , but I agree with you. That ' s the one thing - I don' t see here"
that should be here. It should be specific as to what we' re doing.
Batzli : So remaining Lots 2, 3 and 4 shall be renumbered 1, 2 and 3
II
respectively.
Erhart: Okay, I ' ll amend my motion.
Conrad: Dave, will you amend your second? II
Headla : Yes . i
Erhart moved , Headla seconded that the Planning Commission recommend
approval of Subdivision #87-28 as shown on the plat dated June 23, 1989 II
subject to the following conditions :
1. A change in lot numbering including the redesignation of Lot 1 as
II
Outlot A and renumbering the remaining Lots 2, 3 and 4 to 1, 2 and 3
respectively.
2. The provision of additional easements as per Exhibits 1 and 2. All t
easements to be verified by BRW before filing of the plat.
i 3. Acquisition of requisite cross easements over Lot 1 and Outlot A.
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4. Vacation of sanitary sewer easement .
All voted in favor and the motion carried .
PUBLIC HEARING:
I
ZONING ORDINANCE AMENDMENT TO AMEND THE CITY CODE, SECTION 20-237
REVOCATION AND INSPECTION REGARDING CONDITIONAL USE PERMITS.
Jo Ann Olsen presented the staff report . Chairman Conrad called the publiII
hearing to order .
II
Emmings : I have a procedural question here I think. Under the open
discussion packet, this same thing appears . My impression was that under
the open discussion stuff, we' re just going to take a look at these. I
Olsen : This one was published .
Emmings : Okay, so then we won ' t be considering this one again? II
Olsen: No. What happens is we've been sending things back and forth to II
Roger . I 've been working with him and he just combined everything at once
r This had already been separated out.
Erhart : I assume the sequence here is if someone complains , then they hal
wording that Scott Harr can go out and check, which they could do anyway.
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planning Commission Meeting
July 5, 1989 - Page 12
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' Olsen : Right. This really is just for the public to hear .
Batzli moved, Emmings seconded to close the public hearing. All voted in
favor and the motion carried . The public hearing was closed .
' Batzli : I have a couple problems with this. One is , it appears that
you' re going to give notice in advance of a City Council review. Does that
mean that an inspection is part of that review?
Olsen: Well we usually call . It' s practiced now. We always call and let
them know that we' re going to be coming out.
' Erhart : That' s not what this says . This says the City Council will review
it. It doesn' t say that you' re going to notify them that you' re going to
go out and look at the property.
Olsen: This says review of the permit itself. What we' re doing with
Lowell Carlson next Monday.
' Batzli : It doesn ' t appear to me that there ' s proper antecedent basis if
you will for what you' re talking about. When I read this I had no idea
what it meant and I kind of feel like I 'm kind of familiar with that Code
Section. Maybe other people felt comfortable with it.
Conrad : So you' re concerned that there' s not cause for calling an
inspection?
Batzli : I don ' t know what the City Council ' s review of the permit is? Has
the City Council ever reviewed a permit?
Olsen : A conditional use permit?
' Batzli : Yes .
Olsen : Yes .
Emmings : I think I can remember some.
' Conrad : What we do , when an applicant comes in typically for expanded use.
Olsen: The one I remember now is Lowell Carlson.
' Emmings : Of course he never had a permit .
Olsen: No, he does have a permit. He' s had one since 1985 but he' s never
' met any of the conditions so we' re bringing that up for consideration of
revoking his permit next Monday.
t
jErhart : Brian , to make it consistent with the first run on sentence where
it goes on to say sufficient cause for the termination of the conditional
use permit by the City Council following a public hearing . We could change
Planning Commission Meeting
July 5, 1989 - Page 13
the last sentence to say the property owner shall be notified in advance o'
the City Council ' s review of the permit following a public hearing .
Batzli : Do they need a public hearing to review it the second time around'
Olsen: To review the conditional use permit?
Batzli : Yes . i
Olsen: For the possible revoking of it , yes it is a public hearing .
Emmings: I think that gives them their due process .
Erhart: What you' re saying is the language just isn ' t clear .
Emmings: I 'm not sure what' s bothering you. Can you explain it again?
Batzli : Yes . I guess this sentence, this dangling sentence. The proper"'
owner shall be notified in advance of the City Council ' s review of the
permit. As I recall , we don' t talk about the City Council reviewing the
permit before we say that in this section. '
Olsen : But in the section right before it, I don' t know if it says for the
termination of a conditional use permit by the City Council following a
public hearing .
Emmings : And the section is called , part of the title of the section is
revocation and the first section deals with the fact that failure to compl
with the condition can be sufficient cause for termination or actually tha
should be revocation. Where that says termination, if that said revocation
that would help it make sense I think. '
Olsen: Maybe the last sentence in Section 2 isn' t even necessary or we
could maybe add , maybe that actually belongs up in Section 1.
Emmings: Well does the Council ' s review take place concurrently with the
public hearing? Do those two things happen at the same time so the fact
that there' s a public hearing , that' s notice to the owner but this is just'
to be sure there' s a separate notice that goes to the owner in addition to
be sure that he knows that something is taking place on his permit I
assume. '
Erhart : No . Jo Ann I think hit it on the nose. That last sentence
belongs in the first paragraph. It belongs at the end of the first
paragraph because you' re dealing with the subject of revocation and in the
second one you' re dealing with the subject of inspections .
Batzli : Yes. I like that a lot better . That makes more sense then. '
Erhart : And change the word termination to revocation I think.
Batzli : Currently in the code it' s termination .
Planning Commission Meeting
July 5, 1989 - Page 14
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' Emmings : Well you could change the title if you wanted to . One word ought
to get changed. It doesn' t matter which one.
' Olsen : Okay I ' ll go through that because I know revocation is another
section in itself. I ' ll make it consistent.
Batzli : My other question, my first one was such a big hit, why again are
you removing, or any other violation of this chapter? Was that Roger ' s
idea?
' Olsen : We' re just cleaning things up. One of his reasons was that the
conditional use permit, you have those specific conditions and then your
general conditions of a conditional use but if you' re going to revoke it or
' do anything as far as misdemeanors or penalties against it, that it should
be specifically that they' re in violation of those specific conditions of
the conditional use permit and not for the Council to say, well their
lights were on one night or something . It was just to make it more
specific.
Batzli : I see two things happening then if you do that. One is you' re
going to get a lot of additions that Steve likes to put in that says they
have to comply with every other thing that they put in front of us like the
site plan, the this, the that, the this , the that. You' re going to end up
listing a bunch of other things in there . Or alternatively you' re going to
end up with a catch all thing in the wetland alteration permit that says ,
' they have to comply with every other section because otherwise you' re going
to have people for instance on let' s say a wetland alteration permit and a
' conditional use tied together where they violate the wetland alteration
permit. You want to cancel their conditional use permit but now you can' t
because that' s not the thing that they' ve violated . So either the staff
' has to be very, very careful to include as conditions to tie it all
together or we have to review it. You' re taking away a large club.
Olsen: It wasn' t, we weren' t really strongly, we could go either way.
That was just his feeling that we should focus on this specific condition
and the general review. Focus on the conditional use. He was looking at
it in the other way where it could be too general .
' Emmings: I agree with that .
' Batzli : It could be too general but then just as a caution to us and you,
if we do conditional uses requiring compliance with a lot of other things ,
we should include those conditions .
Emmings : My guess what Roger is thinking is , you ' re taking away a real
substantial property right and they' re going to fight you tooth and nail
and you' re going to have a hard time withstanding a vague and indefinite
' Constitutional type challenge.
Batzli : You' re cited for a nuisance because you leave your lights on all
1rnight and a neighbor complains .
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Planning Commission Meeting `"
July 5, 1989 - Page 15
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Emmings : Yes and I think he wants to get away from that and you' re right,'
we're going to have to be real careful on the conditions to be sure that
we' ve got all the bases covered when we write them.
Batzli : But that' s putting a heavy burden on us . I
Conrad : Yes , which is appropriate .
Emmings : And that ' s fine because you want it to be a significant breach II
before you ever invoke something .
Conrad : You also want to force the conditions , us to make a decision what'
the conditions are. If you don' t, then there' s no reason to have it. Then
it' s a catch all but it' s not enforceable.
II
Emmings : Although some of the conditions we do put on are pretty trivial
too . Lights is a good example. You ought to shut them _off at 8:00. Well
what if they' re on until 8 : 10? Now they can' t be there anymore? You hope'
people use good sense on stuff like that but you worry, especially about a
highly charged political issue like Eckankar. This is coming out in
response to Eckankar is creating the thing that is ripe for abuse . There' ll
so many people that don' t want Eckankar here and made it so obvious and ou
City Council had 3 people on it who didn' t vote yes for it . At least not
out loud. This bothers me because it comes out as a response to that. It'
r like let ' s design something so we can, this certainly could be interprette�
;- that way. As a way to maintain a measure of control to get rid of them
later and I 'm sorry to see it for that reason but I don' t think this says
anything that we couldn' t do already really. I think we could have put in!'
as a condition that unless they live up to all the conditions we' ll revoke
their permit. We can put that as a condition in each one and accomplish
the same purpose . I
Batzli : Well what was the last conditions , speaking of that? Didn' t they
put in some condition that it was going to be inspected annually on the
Eckankar one and that ' s because this ordinance amendment hadn ' t been passe
yet for review?
Olsen : Right . A lot of times with a conditional use that condition is
II
always put on. Not always but most the time.
Emmings : It ' s so punitive though. Okay, we have to pass your permit but II
we' re going to be watching you. That' s what it sounds like.
Olsen : That' s what people wanted to hear .
Batzli : In the past there have been abuses of conditional use permit wherA
this probably would have been , put a little bit more teeth into . . .
Conrad: My only other comment on this is the City Council may order annual!
or more frequent . That ' s sort of wishy washy and I guess I 've always felt
( that it' s important on conditional uses that they be reviewed every year
for compliance . I think we set , I don' t believe that staff has the time tct
really, or it is a priority right now, let' s put it that way. I don' t
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Planning Commission Meeting
July 5, 1989 - Page 16
believe it is a priority for staff to go out and review conditional uses .
I think it should be.
Batzli : How many conditional uses does the City currently have
approximately?
' Olsen : Lots . I can ' t tell you exactly.
Conrad: There definitely is a staffing impact on what I just said. To
annual review. We' re not talking about something that doesn ' t cost money.
' Batzli : Like is lots 100? 200? 500?
' Olsen : I would say 50 to 100.
Conrad : So talk about each one being half a day to review a year .
' Batzli : It' s going to take somebody a month to review them all .
Conrad : Yes . So the word may is real , my preference would be to put teeth
11 in conditional uses so there' s an annual review. I 'm not going to make
that an issue of mine right now but I 'd like to send that signal through to
the City Council that I think that ' s significant. That they should have an
annual review and that if they can justify the cost , it should just that .
The terminology could still read or more frequent based on this specific
need or cause but I 'm not going to change the language or I don' t propose
that we change it from what I see here. I just want to raise that flag to
the City Council so they can review that . Anything else?
Erhart : I agree with you 100% . You could set up a process where people
would have to pay for an annual review. They have to get licensed every
year .
' Conrad : It ' s a significant priviledge on their part .
Emmings : You' re talking about licensing again now. It' s more like
licensing than it is like a conditional use permit and I think that ' s a
real interesting idea. I ' ve been interested in it. I think it ' s a good
idea .
' Erhart : Licensing?
Emmings : Sure. When you sell cigarettes you have to come into the City
every year and get a license. You pay a fee and if there ' s been trouble
' with you selling cigarettes to minors in the past year they slap your hand
and say you better shape up or we may not pass this next year. The same
thing with the liquor license . Why not with conditional use permits?
' Headla: You brought that up before and I think you had a good point.
Emmings : I think the trouble is just it would overwhelm the staff .
Conrad : It' s more paperwork, yes .
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Planning Commission Meeting
July 5, 1989 - Page 17 '
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Emmings : But I don ' t know that.
Erhart: Except I 'm not sure staff has to do that . We' ve just added an II
enforcement person to the city, Scott Harr. Since that position wasn' t
filled 2 years ago, it might be that maybe he would have time plus the
additional income coming in from the licensing might off set his expense.
Usually when you create a new position, there' s a period of time there
where you kind of create your work.
Emmings : Arguing the other side of the issue, I think the problem is, I'm'
not going to build my business here if you can' t give me some assurance
that I 'm not going to be allowed to continue it ' s reasonable operation .
Usually when it' s a conditional use permit, a lot of times there' s real II
substantial building going on or people are spending a lot of money to
locate something here and they come in, they bought an option on the
property but they' re not going to go any further unless they' re sure
they' re going to be able to operate and a licensing would result in so muc'
uncertainity, they'd go someplace else with their use .
Batzli : You said it earlier in regard to the vagueness and the indefinite'
issue is people probably have a substantial property right or interest as
part of the conditional use.
Emmings : That ' s the problem with that idea . '
Batzli : But then again, a liquor store probably has a very significant
interest in something like that too . '
Olsen : The problem with conditional uses is that even like with Lowell
Carlson, even if they revoke it Monday night, so what? It doesn' t stay II there . Still , he ' s just a non-conforming use. Maybe if it is licensed,
it seems like I asked Roger about that. Did I give you an answer on that?
I remember asking him about licensing conditional use permits . I think
it's something you can do .
Emmings : We talked about doing that in a situation where we wanted to hav
an interim or a temporary conditional use and then the legislature made it
possible to have it so I assume we just forgot about going that other
route.
Conrad : On the item in front of us , does anybody want to give any '
different direction on this other than what we see and trust that City
Council will read the Minutes and review the tape .
Emmings: Do we need a motion?
Conrad : We do need a motion , yes . Is there a motion? '
Emmings: I ' ll make a motion that the Planning Commission recommend
' approval of Zoning Ordinance Amendment #89-1 to Section 20-237 of the City
Code as written in the attached ordinance with the following changes. '
First of all that in paragraph 1, the word termination be changed to
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Planning Commission Meeting
July 5, 1989 - Page 18
revocation. Secondly, that the second sentence in paragraph I paragra P 2 be moved up
to the end of the first paragraph. That' s it .
Erhart: Second .
Emmings moved , Erhart seconded that the Planning Commission recommend
' approval of Zoning Ordinance Amendment #89-1 to Section 20-237 of the City
Code as written in the attached ordinance with the following changes : In
paragraph 1, the word "termination" be changed to "revocation" . Secondly,
' that the second sentence in paragraph 2 be moved up to the end of the first
paragraph. All voted in favor and the motion carried.
' Batzli : I would like to pass a resolution on to City Council to strongly
urge the Council to explore the possibility that all conditional use
permits be inspected annually.
Conrad : I think that would be a good resolution to pass forward .
' Batzli : Well I 'd make a resolution like that.
Conrad : Do we need a second on that resolution?
Erhart: Are we going to discuss it?
Conrad : Yes .
' Erhart : I guess before we do that , I 'd like to see us look at the various
conditional use permits and look at each one and see what kind of abuse
' we' ve seen or abuse is possible before we just pass up a resolution like
that. We may, without really thinking about it, we may be suggesting , if
we' re suggesting a licensing or an annual review, maybe we ' re suggesting
something that' s not needed.
Batzli : The resolution is to explore doing that. Not that we immediately
implement it.
Erhart : But why don ' t we explore it?
' Batzli : It certainly isn ' t on our list of things to do that they gave for
us to do.
Erhart : That doesn ' t mean we can ' t do it.
' Batzli : You' re going to have a staff person look at 50 to 100 conditional
use permits and tell us what they all say.
' Erhart: No. I was thinking in terms of the various conditional uses that
exist, what are those that would really be a benefit to the City to have
them reviewed annually.
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Planning Commission Meeting
July 5, 1989 - Page 19 ,
Batzli : But see I think that would involve having a
g them look o at every
conditional use. You' re going to take a lot of a certain staff person ' s
time.
Erhart : Well what are you asking for?
Batzli : I 'm asking for the City Council to kind of put it on our list ofil
things to do so we can get somebody to look at it. I don' t want to ask J41
Ann to go off and do something that the City Council isn' t going to want us
to look at .
Emmings : You' re basically asking them if they think it' s worthwhile for
to take a look at it?
Batzli : Yes . ,
Conrad : You' re right . I think that ' s really wise but I didn' t hear. I
think Brian is ask the City Council to say this is a priority for us to
take a look at. That' s how I understood your resolution.
Batzli : That was the intent. 1
Emmings : Right now do we primarily depend on complaints?
Olsen: An annual review would be great. I think it ' s needed .
N-
Emmings : Are our files arranged or our permits arranged in such a way tha
you can just go up to your office and say, I can identify every conditional
use that ' s been approved in the City Light here? In something?
Olsen: Yes. We've got a listing, a notebook. ,
Emmings : A list in a notebook of all conditional use permits .
Olsen : Yes , and then they' re all in the file cabinet together . You can I
just look through them.
Batzli : We' re in the 60 ' s. ,
Olsen : We' re trying to get them on computer too and what I was trying to
do was to have it so I could sit down every day and punch in and see what II
would be up for an annual review. What the conditions were and we just
haven' t got it on computer but we ' re getting it. We've got an assistant,
an intern working .
Conrad : So Brian , what' s your resolution again?
Emmings: Maybe this is too formal . Maybe we could just ask them if they
want us to look at it.
Batzli : That was the intent was whether we should explore whether an
annual review is needed on conditional use permits. Should be i.mplemented.,