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5. Compliance with CUP, 4141 Kings Rd CITY OF s CHANHASSEN 690 COULTER DRIVE. P.O. BOX 147. CHANHASSEN, MINNESOTA 55317 (612) 937-1900. FAX (612) 937-5739 MEMORANDUM TO: Don Ashworth, City Manager FROM: Cynthia Kirchoff, Planner I DATE: November 5, 1997 SUBJ: Review Compliance with Conditional Use Permit, 4141 Kings Road, Lowell Carlson Recently, staff notified Lowell Carlson again that the City intends to install a wood fence along Kings Road and assess him for the work. Mr. Carlson met with planning staff to discuss an alternative to the fence installation. Staff would like direction from the City Council on how to proceed with this marter. . BACKGROUND , A contractor's yard has been in operation on Lowell Carlson's property since the mid-1960s. Since the operation has been in existence prior to the adoption of the City zoning ordinance in 1972, it is a legal non-conforming use. In 1985, the Carlsons were notified that a conditional use permit would be required to continue operating a contractor's yard on the property. When the CUP was approved, several issues where made conditions of approval. Namely, that the property be cleaned-up. When this did not occur, Mr. Carlson was charged with enlarging the contractor's yard and creating a nuisance with the outdoor storage of miscellaneous material. In 1993, a stipulation agreement required Lowell Carlson to install a fence surrounding.an outdoor storage area and to remove all material and equipment not used for business purposes and all motor vehicles not used for personal use. The fence was to be installed in May 1994 and the outdoor storage was to be removed by January 1994. The City believed that Mr. Carlson was exerting a good faith effort in resolving the situation, however, the fence has never been installed. Don Ashworth, City Manager November 5, 1997 Page 2 ANALYSIS The fence installation has been an ongoing issue since 1994. Several extensions were given to Mr. Carlson to install the fence. Since the fence was not installed by March 1995, the City notified Mr. Carlson that the fence would be placed on the property at his expense. Based upon his word that he would install the fence, the City never followed through with the placement. On October 24, 1997, Mr. Carlson was notified that a fence would be installed at his expense by the end of November. In response to this letter, he met with stafflast week to discuss a potential residential subdivision being located on his property. LOWELL CARLSON'S PROPOSAL Mr. Carlson has stated that a developer is in interested in purchasing his property for a residential subdivision. He does not believe that it is practical to install a fence that will be removed when the property is developed. Mr. Carlson has not indicated when the property will be sold. OPTIONS Staff would like direction from the City Council on how to proceed with this issue. Staff would like to take into consideration the fact that the property may be sold in the future for residential development. However, the fence should have been installec;i in 1994. Staffhas developed the following options for this issue: ' 1. Establish a deadline for Mr. Carlson to install the fence. 2. The City will install the fence and assess Mr. Carlson for the work. 3. Require Mr. Carlson to remove outdoor storage items, but not install the fence. However, require a letter of interest from the developer. Inspect the property every 3 months to make certain the project is progressing. If complaints surface, the fence will be installed at the expense of Mr. Carlson. ATTACHMENTS 1. Stipulations for Entry if Judgment dated January 31, 1994 2. Letter to Lowell & Janet Carlson from Elliot Knetsch dated April 18, 1994 3. Letter to Lowell & Janet Carlson from Elliot Knetsch dated May 19, 1994 4. Letter to Lowell Carlson from Kathryn Aanenson dated July 1, 1994 5. Letter to Lowell Carlson from John Rask dated March 15, 1995 6. Letter to Lowell Carlson from Cynthia Kirchoff dated October 24, 1997 i ',/ / Ui ~ 3 I -'I ,/ RECEIVED:"::' CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. Attorneys at Law .. C I; r. (; 1994 - !, " i, , I "l ' ! ,'rl', II F..\\~lT ~ hnllr'(1I1 Th,)Ill<1- \1 ~('lf( l ~,Ir\ l J FIKh- lalllc'- R, \\'<11,(, In 'EIIIl)t[ B f.:1lL'Nh January 31, 1994 Eli:<1"crh A Lun:c'r AnJrea \ldJ,m-d1 Poehler ell' VI ...., ,{"\, ~nr\SSEN. {(,12) 4)2-)(\\1 Fa:>- (612) 452-5550 Ms. Kate Aanenson Chanhassen City Hall 690 Coulter Drive, Box 147 Chanhassen, MN 55317 Manager's Comments: Approval is recommended. DWA (2-8-94) RE: Lowell and Janet Carlson vs. city of Chanhassen Dear Kate: Enclosed please find the following documents: 1. Two original Stipulations for Entry of Judgment, Order for Judgment, and Judgment. 2. One original First Amendment to Stipulation for Entry of Judgment, Order for Judgment, and Judgment by and between Lowell and Janet Carlson and the City of Chanhassen. Please put these agreements on the next available City Council agenda for approval by the Council. If the agreements are approved, each of the originals ~hould be executed by the City and returned to me for submission to -Judge Goggins for entry of judgment. Please let me know if you would like me to prepare a report to the Council detailing the terms of this settlement. This item may be placed on the consent agenda if staff deems it appropriate. Please call if you have any questions. Very truly yours, EBK:slc Enclosures CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.:t ~. BY: Elliott B. tsch cc: Mr. Don Ashworth (Enclosures) Mr. Bruce Olander ,,~ ~lInl' 31, · EaganJale Office Center · 1380 Corrorate Center Curye · Eagan, MN 55121 STATE OF MINNESOTA DISTRICT COURT COUNTY OF CARVER FIRST JUDICIAL DISTRICT CASE TYPE: 10 - Other Civil Lowell and Janet Carlson, Court File No. C2-90-270S1 Plaintiffs, vs. STIPULATION FOR ENTRY OF JUDGMENT, ORDER FOR JUDGMENT AND JUDGMENT City of Chanhassen, Defendant. --m~~::~:~:::-::::-::::-L day of J)C<'1n i~ f- , 1993, by, between, and among the CITY OF CHANHASSEN, a Minnesota municipal corporation ("City"), and LOWELL CARLSON AND JANET CARLSON, husband and wife ("Owner"). RECITALS WHEREAS, Owner owns the following described property ("Subject Property") located in the City of Chanhassen, Carver , , County, State of Minnesota and leg~~ly described as follows, to- wit: That part of Lot Two (2) of Section Seven (7), Township One Hundred Sixteen (116), Range Twenty-three (23), Fifth Principal Meridian, according to Government Survey thereof, described as follows: Commencing at the Northwest (NW) corner of said Lot Two (2), thence South along the West line of said Lot Twenty (20) rods, thence East, at right angles, Thirty-two (32) rods, thence North at right angles, Twenty (20) rods, to the North line of said Lot, thence West, along said North line, thirty-two rods to place of <beginning. That part of Lot 2 of Section 7, Township One Hundred Sixteen, Range 23, Fifth Principal Meridian, according to Government survey thereof, described as follows, to-wit: commencing at a point on the North line of said Lot Two (2), distance thirty-two (32) rods form the Northwest corner of said Lot; thence East, along said North line, eight (8) rods; thence South at right angles, 40 rods; thence West at right angles, 8 rods; thence North at right angles 40 rods to the place of beginning. 10088 R 12-03-93 and WHEREAS, in 1985, Owner was notified by the City that it had enacted an ordinance which required that all property owners having a valid non-conforming use of their property as contractor's yards were required to apply for a conditional use permit as a condition of continued use as a contractor's yard; and WHEREAS, the City commenced criminal proceedings against Owner alleging violations of the City's zoning ordinance; and WHEREAS, on December 10, 1990, the Honorable Eugene Atkins issued an Order Allowing Writ of Mandamus and Alternative Writ of Mandamus in the above captioned matter; and WHEREAS, on February 12, 1993, the ,City initiated a , counterclaim against Owner alleging-that the operation of the contractor's yard on the Subject Property constitutes a violation , of the Chanhassen nuisance and zoning ordinance. WHEREAS, the parties desire to amicably resolve and settle their differences and to avoid the cost of further litigation. NOW, THEREFORE, the parties stipulate as follows: 1. Building. Owner is allowed to construc~< one building up to a maximum of 6,000 square feet on the Subject Property. a. The building must comply with all applicable building codes and City ordinances, except as expressly provided otherwise in this Stipulation. b. The building may have a basement. The square footage of the basement wh~ch is below grade shall not be -2- considered to enlarge the square footage of the building allowed herein. The basement must meet all applicable building codes. c. The building may be a metal pole barn type structure of a color which is compatible with the residence. The building may run north/south parallel to the east line of the Subject Property, or it may run east/west parallel with Kings Road. d. The construction of the building must be completed by July 15, 1995. e. Owner must file a complete application for a building permit for the building and fence by April 1, 1994. Owner must obtain a building permit for the building and fence before starting construction. Owner may have the building permit extended for six (6) month , intervals, at no cost to owner, upon application to the City. Any extension of the building permit will not operate as an extension of the deadline to complete the building. 2. Workshop. Owner may construct one workshop up to a maximum of 1,600 square feet on the Subject Property. a. If the new shop is constructed, the two <~2) existing small garages, as shown on the Site Plan, attached hereto as EXHIBIT A, must be totally removed from the Subject Property within thirty (30) days after the shop is substantially completed. b. The workshop must be located within the outside storage area, as provided in this Stipulation. -3- c. The workshop must meet all applicable building codes and City ordinances. d. Owner must obtain a building permit for the workshop. e. The appearance of the workshop must be compatible in color with the residence. f. If the new workshop is constructed, Owner must roof, repair and paint the existing shop garage, as shown on EXHIBIT A, to be compatible in color and building materials with the residence. 3. Outside Storaqe Area. An outside storage area is allowed as shown on EXHIBIT A. a. The outside storage area must be completely fenced, with either a chain link fence or a wood fence as shown on EXHIBIT A. b. The wood fence must be a slat ~oard type fence, six and one-half (6 1/2) feet in height. The chain link fence must be six and one-half (6 1/2) feet in height. The wood fence may be less than six and one-half (6 1/2) feet on the east property line of the Subject Property based on the existing grade. c. The area between the Kings Road right-of-way and the wood fence must be landscaped with deciduous or coniferous trees. Deciduous trees must be at least two and one-half inch caliper. Coniferous trees must be at least six feet in height. At least one tree per thirty feet around the chain link fence is required. The trees must be selected from the list attached as -4- EXHIBIT B. Owner must also install the landscaping on the west chain link fence as shown on EXHIBIT A. d. If Owner fails to timely submit an application for a building permit pursuant to Section Ie., the fence must be completed by May 20, 1994. e. If the building permit is applied for on time as provided in Section Ie., the fence must be completed by July IS, 1994. f. If Owner fails to complete construction of the fence for the outside storage area as required by Section 3a., Section 3d. and Section 3e., whichever are applicable, the City may enter the Subject Property and construct the fence and assess the costs as provided in Section 5. g. All materials, equipment and personal property of any , kind must be moved inside--the outside storage area within thirty days after completion of the fence. h. Owner must maintain the fence as long as it exists on the Subject Property. 4. Outside Storaqe. No storage of any motor vehicles, material, equipment, or other personal property of any kind is allowed, except completely within the allowed out~ide storage area. Owner may have personal motor vehicles, as allowed by City ordinances, which may be parked outside the allowed storage area. 5. Materials and Eauipment. Owner agrees to remove from the Subject Property all materials, equipment, or other personal property which is not currently used for business purposes. -5- a. Owner and City staff will make a list of items to be removed ("Listed Items") by December 23, 1993. b. Owner must remove all listed items by January 23, 1994. c. If any Listed Item remains on the Subject Property on or after January 24, 1994, the Owner grants the City permission to enter the Subject Property and remove any Listed Item which remains. d. All costs incurred by the City in removal and disposal of the Listed Item shall be paid by Owner. If Owner fails to pay the costs within thirty days, the costs shall be assessed against the Subject Property as a special assessment and certified to the County Auditor for collection with real estate taxes on the Subject Property. The assessment is due and payable the first year after certification if the costs incurred are , , $1,500.00 or less. If the costs exceed $1,500.00, the assessment will be spread over five years, with an annual interest rate of eight percent (8%). e. Owner waives all rights granted by Minn. Stat. Ch. 429, with respect to this assessment, including but not limited to, the right to notice, hearing and to appeal the assessment to district court. f. Owner hereby releases and forever discharges the City from any and all actions, causes of actions, claims, and demands (whether civil or criminal), damages, costs, including attorneys' fees, and expenses on account of or in any way arising out of the City's -6- actions in the removal and disposal of Owner's property as provided herein. 6. Sheds on East Property Line. The five wood sheds and one van body located on the east line of the Subject Property, as shown on EXHIBIT A, may remain until July 15, 1995, only if Owner has applied for building permits as required by Section 1d. a. If Owner fails to timely submit an application for building permits pursuant to Section 1e., the five wood sheds and one van body must be completely remoyed from the Subject Property within thirty days after completion of the fence. b. If the five wood sheds and one van body remain on the Subject Property more than thirty days after completion of the fence, the City may enter the Subject Property and remove the sheds, van body, and all their contents, , , and assess the costs as p~ovided in Section 5. 7. Dirt Stockpile. Stockpiling of dirt or other materials is not allowed, except as provided herein. a. Thirty (30) days after completion of the fence, all dirt or other materials which have been allowed to remain on the Subject Property, or which is to be used in Owner's business, must be stockpiled, < loaded, and unloaded only completely within the approved outside storage area. 8. Landscapinq Generally. The Subject Property shall be landscaped according to the Landscape Plan attached hereto as EXHIBIT A. Owner must maintain and mow the Subject Property, except for the area within the approved outside storage area, and -7- the area labeled pasture on EXHIBIT A. Owner must replace trees or other plantings which die within two (2) years of their installation. 9. Owner's Petition for Writ of Mandamus will be dismissed with prejudice and without further costs to either party. 10. Failure of Owner to carry out any obligation under this Stipulation will constitute immediate and irreparable damage to the City not compensable in money damages and will entitle the City to preliminary and other injunctive and equitable relief upon application to the district court. 11. The district court shall reserve and retain jurisdiction to enforce this Stipulation and issue additional orders against either party as it deems just and proper. 12. Nothing herein shall be construed to give the City any greater rights to enter the Subject Prop~rty than what is expressly provided herein, or otherwise granted by law or ordinance. CITY OF CHANHASSEN BY: Donald J. Chmiel, Mayor AND Don Ashworth, City Manager CAMPBELL, KNUTSON, BY~ FUCH~4 Elliott B. K sch, #168130 Attorneys for Defendant 1380 Corporate Ctr. Curve, #317 Suite 317 Eagan, MN 55121 (612) 452-5000 d~ -8- OWNE~,-/ (;) BY:W~C~ Lowell Carlson AND 1/2~~~ J.ii;ret Carlson BY: X~L<2 __ ~uce A. Olander, #81334 ~- Attorney for Plaintiffs 200 First Street East Jordan, MN 55352 (612) 492-6990 , , -9- c:\~ r["HELL. l(\-'lJT~l ;\:, :--'Cl ')TT & FL}CII~, 1'...\. \ I!, "'ill \, ,11 1.,1\\ '\"'-\ r', 1':1;1:"', 1) ~ ; :' J!: ' 1 lit I j' i - ~ )! 1 ~. I ,. j"; 1, .;: l. I" '. 1 .....~ \' ! \ Iii"'. (J hll!l... \ ( i: I .j;:; ,', , /"1\ I( J~l-1-)~ ;.:~\, I , i il''''!\ ,\ I!...r ]1 April 18, 1994 i"lilll!! n ~ :1l1"l11 ., I ' \ ' ~ : ::.1 'l r 11 '\ L, jjj~l_ r \11-1;", \lell. II,:: r",!,I,,. Lowell and Janet Carlson 4141 Kings Road Excelsior, MN 55331 Re: Carlson City of Chanhassen Dear Mr. and Mrs. Carlson: Pursuant to the terms of the stipulation for Entry of Judgment, Order for Judgment and Judgment, which was signed by Judge Goggins on March 15, 1994 and the First Amendment to stipulation for Entry of Judgment dated January 28, 1994, you were to have submitted a complete application for a building permit, and a complete application for a fence permit, by April 1, 1994. I have been informed by City staff that they did not receive a building or fence permit application from you. Therefore, under the terms of the above-referenced StipUlations, you must obtain a building permit for the fence, and construct the fence as shown on Exhibit A, on or before May 20, 1994. Please note that pursuant to Section 1 of the First Amendment to Stipulation for Entry of Judgment, the portion of the fenc~ which runs parallel to Kings Road must be continuous from the east point to the west point as shown on Exhibit A. Please be advised that if you fail to complete construction of the fence by May 20, 1994, the City may enter your property and construct the fence and assess the costs as provided in Section 5 of the Stipulation (see Section 3f of the Stipulation). Very truly yours, EBK:slc CAMPBELL, KNUTSON, SCOTT & FUC/rtt~:.. ~ By: ~- Elliott B. K e ch cc: Mr. Bruce Olander Mr. Don Ashworth Ms. Kate Aanenson :-:1111l' )j7 ~ r:,I~,JI"LJ!l'('lI:l' ("'1,n Q I )''-\'(.'()I'j''lr.lll'(\'I1ll'rClInL' . t,I~;I!), \1'< ')')I~l vl/ Lr" ! ;' L/ ' C.-\\1pnELL !(:-~LTSU\:, SCllTT &. FL;CHS, l').:\. '\ \.p '1 \ \ '--' \ttl;rI1L'\' .It 1..1\\ 1111 '1:.1' t ( IPli h, Ii ::, ':...\. r', I, 11!1!"', \11 Tl", 1111" \ I ....~\;, l ~ r\ l ~ f-::...! 1" ! lilll..... 1\ \\ t1 t :1 !:l111llT); 1-..1":\.I....h EI:: 11'l~! i -\ Lun:\. r \11.1r, \ \1-1), '.\,i! I'.,,!,!,r \,,1 ~ I -1;~'=' ':, 1,,\ (h).;U;2.=;;,' May 19, 1994 Lowell and Janet Carlson 4141 Kings Road Excelsior, MN 55331 Re: Lowell and Janet Carlson -- City of Chanhassen Our File No. 12668/205 Dear Mr. and Mrs. Carlson: Confirming my recent telephone conversation with Janet, we have agreed that the terms of the Stipulation for Entry of Judgment, Order for Judgment and Judgment, required you to submit a fence plan by April 1, 1994. It is also undisputed that no fence plan was filed by that date. However, you did file an application for a building permit, although that application is still incomplete because you have not filed adequate building plans. ' I have discussed this matter with City staff. We have reluctantly decided, based upon your confusion over the fence plan, to extend the deadline for you to obtain a building permit for the fence and finish construction of the fence by June 6, 1994. Please be advised that the City will not grant further extensions. If the fence is not completely constructed by June 6, 1994, the City may enter your property, construct the fence, and assess the cost against your property pursuant to the Stipulation. You are also hereby notified that you must furnish complete building plans to the City Building Official, Steve Kirchman, by June 6, 1994. ~lIJ1\.' 1], .. E.l)..:.m'!.lk ('!11''-'' ('LlllL'r . ]1.)l'1CIlJ"j'llLilL'l\'nrL'rClInL' · E.1~.1I1,\1~ )l]~l Lowell and Janet Carlson May 19, 1994 Page 2 . . Please contact me if you have any questions. Very truly yours, CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A By: EBK:sIc cc: Mr. Don Ashworth vMs. Kate Aanenson Mr. Steve Kirchman , , CITY 0 F CHANHASSEN 690 COULTER DRIVE. P.O. BOX 147. CHANHASSEN, MINNESOTA 55317 (612) 937-1900. FAX (612) 937-5739 July 1, 1994 Mr. Lowell Carlson 4141 Kings Road Excelsior, MN 55331 Dear Lowell: This letter is a follow up to our meeting on June 30, 1994. At this meeting you indicated that you were unable to put up the fence you had previously agreed to by June 30, 1994. The city has already agreed to one extension of the required installation of the fence. You have indicated to me that this is your "busy" time of the year and that buildings and materials need to be moved in order to install the fence. I have tentatively agreed to give you an extension of the fence installation but this is subject to the following things happening: 1. I will call you the week of July 5-8, 1994 to'set up a meeting to inventory what materials can be removed from ypur site. 2. At this meeting, a schedule will be set up for removal material, as well as a new date for the completion of the fence installation. The city is tentatively agreeing to this extension based on the good faith effort on your part to show progress in removal of unnecessary materials from your site so that the fence can be installed in a timely manner. Failure on you part to these conditions will result in the city installing the fence. Sincerely, i ."-th \ll'''' ~ro1\VfJJ6'v'\ Kathryn R. Aanenson Planning Director KA:v pc: Elliott Knetsch, Campbell, Knutson, Scott & Fuchs CITY OF CHANHASSEN 690 COULTER DRIVE. P.O. BOX 147. CHANHASSEN, MINNESOTA 55317 (612) 937-1900. FAX (612) 937-5739 March 15, 1995 CERTIFIED MAIL Mr. Lowell Carlson 4141 Kings Road Excelsior, MN 55331 Dear Lowell: This notice is to advise you that the city will begin soliciting bids for the installation of a fence on your property because you have not taken the appropriate action to correct the violation and install the fence. You originally agreed to have the fence in place by June 6, 1994. The city tentatively agreed to several extensions of this deadline based on the good faith effort on your part to show progress in removal of unnecessary materials from your site so that the fence could be installed. The city has been more than reasonable in giving you adequate time to erect a fence. We will have a contractor J,ined up to install the fence as soon as the frost is out of the ground. I currently have one estimate for $11,978.00. I would strongly encourage you to take the appropriate actions to resolve this problem so that the city is not forced to hire a contractor at your expense. If you have any immediate questions, please contact me at 937-1900, ext. 117. Sincerely, ~v~~L -..;.;.- John Rask Planner I pc: Kate Aanenson, Planning Director C ITV OF CHANHASSEN 690 COULTER DRIVE. P.O. BOX 147. CHANHASSEN, MINNESOTA 55317 (612) 937-1900 . FAX (612) 937-5739 October 24, 1997 Mr. Lowell Carlson 4141 Kings Road Excelsior, MN 55331 Dear Mr. Cdson: This letter is to advise you that the City will begin soliciting bids for the installation of a fence on your propelty. As you are aware, the fence was to be installed in 1994. You have been given a reasonable opportunity to install the fence and correct the violation. Thus, you give the City no choice but to install the fence and charge you for the work. The City will have a contractor complete the work before the end of November. I would strongly encourage you to take the appropriate action to resolve the problem so the City is not forced to install the fence at your expense. Should you have any questions, please feel free to contact me at 937-1900, ext. 117. Sincerely, {~(2J_07.1~YlJ1~ij;- Cynthia R. Kirchoff Planner I Enclosure: 'Letter from John Rask dated March 15, 1995 Letter from Elliot Knetsch dated June 14, 1994 c: Kate Aanenson, Planning Director Elliot Knetsch, Campbell Knutson, P .A.