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1993 02 22CHANHASSEN BOARD OF ADJUSTHENT AND APPEALS REGULAR MEETING FEBRUARY 22, 1993 Chairman Johnson called the meeting to order. MEMBERS PRESENT: Willard Johnson, Carol Watson and Hark Senn STAFF PRESENT: PauI Krauss, Pianning Director; Sharmin AI-Jaff, PIanner I; Elliott Knetsch, City Attorney; and Steve Kirchman, Building Inspector INTERPRETATION OF CONDITIONAL USE PERMIT VALIDITY. CUP #88-11 FOR A CONTRACTORS YARD. 1700 FLYIN~ CLOUD DRIVE. JEFF C~SON. A1-Jaff: This site is located north of Flying Cloud Drive, south of Chicago/Northwest Railroad. This application first appeared in front of the City Council in September of 1988. The request was for a contractors yard. The application process went through a conditional use permit and the City Council did approve the application. Conditions are attached to your report. One year before the application expired, the applicant applied for a building permit and it was for the shell of the building only. Since then, they built a foundation. However, they didn't proceed with the construction and the ordinance states that if substantial construction does not take place within 6 months, the application expires. The applicant is contesting that the conditional use has not expired. That it should go through a public hearing process before their application actually expires. And right there we're having, we're not interpretting the ordinance the same way. In this case the application comes in front of you and the Board of Adjustments and Appeals will decide whether the application has expired or not. We are recommending that you find the application had expired. There are some statements that were made by the applicant's attorney, Mr. 3elf Carson and they are regarding the building and the building permit-. With us is Steve Ktrchman, Building Official. If you have any questions, he will be available to answer them. And I don't know if Steve would like to make any comments at this time, or would you rather just answer questions? Kirchman: I'll just answer questions' if you have any. Al-Jaff: Okay, thank you. Johnson: Are you the Attorney? Jeff Carson: Yes sir. Johnson: State your name please. Jeff Carson: My name is Jeff Carson. I represent Mr. Lindbery. Good evening. I wonder, as part of the paperwork, do you have the documents that I submitted? Johnson: Yes. Jeff Carson: Okay. I'll sort of follow along that line of thinking. As I indicated, I represent Mr. Lindbery and in fact did so in 1988 when he Board of Adjustment and Appeals February 22, ~993 - Page 2 was before the City Council, Planning and City Council to apply' for and receive his conditional use permit. That was issued .in September of 1988 and it was for the operation of a contractor's yard on his approximately 40 acres, as indicated on the overhead. In preparation for this I went to the Code and the definition of a contractors yard because one of the points that we are here to make tonight is that Mr. Lindbery has indeed been operating his property as a contractors yard ever since that date. And I think that's a paramount issue, at least as I read the staff's view of things because they're suggesting that so much time elapsed and a building wasn't built and therefore the conditional use permit lapsed. It is my interpretation, as I read the definition of contractors yard, which I've put on my, reprinted on my'material' It doesn't require that there be a building on a contractors yard. There may be indeed and so I point that out because Mr. Lindbery has during this entire period of time, although he has had some difficulty, not all through his own fault or devices, getting up his building, which I'll discuss later. The idea that he could operate a contractors yard never changed. He has indeed operated a contractors yard since he was issued his conditional use permit. He would like to finish his building. He has footings poured, and as I said, I'll get into the problems that he ran into in constructing the building later. Some of the things that I point out, that I'd'ask you to consider in dealing with this. Obviously zoning has changed in the city since the conditional use permit was issued and if this were the first blush at this subject, we could not ask you for a contractors yard in this zone today. And so that makes the impact of your decision and the decision of the City Council even more significant frankly because if you concur with the staff and take away Mr. Lindbery's right to use his property, as he has been using it, it reverts really to agricultural use and he's not a farmer. I won't, if you've had a chance to read through these, I won't go through each and every point that I make but a couple of things I think are important. I contend that under your code, Mr. Ltndbery has at all times since the Code changed, operated his contractors yard as a non-conforming use. And I have a list of exhibits that I've attached and your non- conforming section, if it does anything, it's an attempt to keep uses that exist lawfully at the time that a zone changes, in operation. I think that's an important feature because as you may recall, if you went through the Minutes of the 1989 planning meeting when'they changed the or took contractors yards away from the agricultural area. I found it interesting. One of the gentlemen at the meeting was concerned that there was no contractors in the audience and pointed that out. He said, there's nobody here except the staff and the Planning Commission and the staff technically, correctly said well, we don't have to invite every contractor to something like this. We've published in the paper that we're going to do this. But they went on to say that, and people who are operating already are non-conforming. In other words they're protected. Ne changed the law but we don't go and erase all the uses that exist. So the Planning Commission I think was comforted by that and went forward and changed the law. Ail the while anticipating I believe that it would not impact already existing uses. A couple of other things. The staff has been dealing with Mr. Lindbery over the years. And in fact, as I point out, and I have exhibits attached, they dealt with him on the issuance of the building permit and two different inspections. Those would be Exhibits 6, 9 and l0 to this attachment. The point being this. That the City was dealing actively with Hr. Lindbery on this site as a conditional Board of Adjustment and Appeals February 22. 1993 - Page 3 use permit more than 2 years after the issuance of the permit itself. Now the building wasn't up at that time, and what these exhibits show, Exhibit 6 is the building permit which was referenced by staff. Exhibit 9 is a report that was made about this project on 10/22/90. And Exhibit 10 is a copy of the reference page. That is actually the attachment of the conditional use permit showing at the bottom that on 10/23/90 there was some research going on and that they were going through the different areas of the permit itself. The point being that for over 2 years after the issurance of the permit, the City Nas still dealing with the property as a conditional use permit. There was no discussion about the building isn't up and it's been a year. Or the building isn't up and it's been two years. They were going through the process. Now I also point out that Mr. Lindbery has expended a great deal of money in this, just on the issue of the building itself. And'there are exhibits attached to show this. He has spent over $36,000.00 with the building permit and the purchase of the building shell. What happened, and what I explained in a little more detail, is that he got into a dispute with a former building official who's not employed now, as I understand, over the type of heating the building was going to have. I've attached, my last attachment is a copy of the floor heating. He intended to put heating in the floor and then pour cement, which is a fairly typical and believed to be better method of heating than what might be more or less traditional at the time. I don't think it's terribly innovative but the point was that it was certainly an authorized method of heating by the Uniform Building Code and by the Chanhassen Building Code. But they got into a dispute over 'it and so that, he would not permit him to do that. That dispute unfortunately is not very well documented by from our perspective he would not have gone ahead and obtained the permit and expended the funds if he was not very serious about getting the building.and getting it up. As I said, the footings are out there and so really the building was ready to be placed on the property. Probably in 1989. I think there's something else that entered in here that kept Mr. Lindbery personally away from the project of building the building for about a year and that was an injury. He received an injury, work related, and crushed his leg and was out of work for a year. $o you know these periods of time, they seem like great lengths of time when we talk about a year here and a year there, but when you think about this process and you think about the time that has gone. by, and in Minnesota you think about the period of time when you really don't construct typically, the winter. Not all. that much time has happened. What really has happened here is this. It was last summer or spring when part of the use of Mr. Lindbery's property was the storage of these big commercial units. He would rent them to contractors for taking to their sites. He was storing them on his property and they could be seen from the highway, and so it was drawn to staff's attention. They contacted Mr. Lindbery and communicated with him and he just didn't do anything for one reason or another. They're huge for one thing. They're difficult to move. Watson: What are they? Jeff Carson: What are they called Harry? Harry Lindbery: They are storage containers that we rent to electricians and plumbers. They take them to a job and we set them on the Board of Adjustment and Appeals February 22, 1993 - Page 4 ground. They're 10 foot. No, they're 8 foot wide and 8 foot high and 20 feet long. They have swing doors and they put their electrical supplies or plumbing supplies in there and then they can lock them up. Because if they take them out to a job site, and the delivery truck would deliver their supplies and by the time they'd come the next morning, thieves had run off with them because construction jobs don't have watchmen all night long. Jeff Carson: I think that, does that answer your question as to what the units were? Watson: Yeah. sure. Jeff Carson: They were big and heavy and. Harry Lindbery: They're 20 foot long and 8 foot square. Jeff Carson: They became the subject of inquiry by the staff and actually have since become the subject of a criminal complaint, which is pending in the District Court. Mr. Lindbery believes he has solved the problem with respect to the placement of those boxes on his property at this point, but that's what led to the inquiry. That's what led to the question of, now I'm editorializing a little bit. This guy isn't playing ball with us. What are we going to do? What can we do to him? Well, let's see. Go back through his permit and oh gee, you know. -He hasn't got his building up, otc, etc. Well, before you know it it's alleged and claimed that his permit is void and he's out of business. And I think that's what happened. I think reality is that it became a personality thing and it's unfortunate. It's unfortunate on the one hand that Mr. Ltndbery didn't respond when he was notified and satisfy the staff. It's unfortunate that we get into this debate really of what does the permit mean? What does the law mean? What has happened? Is it a non-conforming use? What happened in the process? You know there's a lot of things to look at but I think in reality that's what happened. Otherwise, why would the staff have gone out 2 years after the issuance of the permit, inspect the property and make notes and go on with things. It just feels like that's what happened. It is our hope frankly that we can get this thing back on track. That Mr. Lindbery can continue to operate the property as a contractors yard. He would like indeed to put the building up and there's a good reason to put the building up so that he doesn't have'to store a lot of the things that he might be storing and has stored on the property outside. I mean there's a good reason he's putting the building up, and that was always intended. There's a couple of things I would, I guess I feel I should comment. In staff's report, which I received today, I guess I'm sort of following the, my comment. Their comment format that was written here. A couple of points I think I should make about this. I said Mr. Lindbery had used his property since receipt of the conditional use permit as a contractors yard. The response is, if the applicant used the property as a contractors yard, then he did it without complying with the conditions of approval of the conditional use permit which was approved by the City Council. Now frankly, it was an ongoing process. The property has always been used as a contractors yard so I don't frankly understand that comment. But I take issue with it. He is in compliance to the extent that the conditional use permit, that the points in the Board of Adjustment and Appeals February 22, 1993 - Page $ conditional use permit are applicable. Another point. It says although, I said, although your zoning code has now been amended, Mr. Lindbery's use has been modified or he's got a non-conforming use. The response was, the contractors yard never received a certificate of occupancy. Now I didn't see in the permit itself any requirement that he obtain a certificate of occupancy. If the code requires him to receive a certificate of occupancy, he was frankly unaware of it. I'm not aware of the section that requires that. I'm not suggesting it doesn't but he never knew of the requirement of a certificate of occupancy. It goes on to say that staff visited the site on different occasions. I take that to mean that we don't believe that he's been operatin~ his property as a contractors yard during this period of time. We've been through staff's, you know the entire file on this property and although staff has been out to the property on a few occasions, there hasn't been a great deal of activity by the city on the property. The last note that we find is October of lggO. October 23rd of ~990. $o I submit that staff is not in a'position, or nobody other than Hr. Lindbery is in a position to say with any certainty whether he operated the property continuously as a contractor's yard. Ny comment number $ on the staff report, that staff continue to deal with Mr. Lindbery on the conditional use permit as recent as October, The response is, no records were found to support this statement. Well I submit Exhibits 6, ~ and l0 are in the official record. They do note activity by the City. By the City officials with respect to the property so I consider that evidence of activity on the property. But it is not our hope here or our point to take issue with each. I mean you can get doNn to the real picky issues and the nitty gritty of things and Ne don't want to do that. Mr. Lindbery wants to continue to operate his property as a conditional use permit. As a contractors yard. He feels genuinely that he has the right to continue to do that. He would like to put up the building that was started some years ago and hasn't been completed yet. We don't feel that the construction of that building was the, without Nhich you don't get the conditional use permit. That's what the conditional use permit says. Obviously it was contemplated as one of the things that Nas going to happen in the use of the property but look at what a contractors yard is. You obviously can operate a contractors yard without a building. It's probably a lot better for the business and. for the city to have the building in place. I guess that's sum and substance of our approach. I would hope that you could see your ~ay to recommend to the City Council that Mr. Lindbery be recognized as an existing use, such as he is, and that Ne don't have to continue to debate or fight about the facts. The historic facts of this case. Thank you. I'll answer any questions if anybody has any. Johnson: I have a question. Why wasn't the shell put up to begin with? I guess that's Nhat, I've got a problem Nith that. Jeff Carson: Well, that gets into the business about the type of heating. He bought the shell. He owns the shell. He physically owns the shell. It cost $34,000.00 and some dollars and he purchased it. At the time he was ready to put the shell on the property, he was going to put the heating units in the floor and pour cement and the Building Inspector said, no. You can't do that. They got into a debate. That's Nhat stopped the project frankly. Board of Adjustment and Appeals February 22, 1993 - Page 6 3ohnson: Does the floor have anything to do with the construction of the building itself? Why couldn't it be put on the foundation? Jeff Carson: Well the floor had to be poured before the building would be put. Johnson: But as I understand, you had the foundation there.. Jeff Carson: No. Not the foundation. Just the footings. Johnson: Footings. I'll take it back. The footings are there. Jeff Carson: Well, the plan for the building included a cement floor and so you wouldn't, what he wanted to do was put the heat units in the floor. The Building Inspector didn't want the heat units in the floor and.he couldn't, I suppose that debate should have been brought to the City frankly. Watson: $o this debate occurred in Kirchman: 3elf Carson: '$9. 1989. Because the permit was issued in 1989 and that's when all this started. Watson: Do we have records of those discussions about the heating units and all that? Kirchman: No we don't. Watson: So no forms were filled out at that time? Kirchman: I inspected the footings and heating was never brought up to us at any time. Harry Lindbery: It was to your Building Inspector. Senn: Nell I think we're getting off the point. Jeff Carson: That was the point. Mr. Lindbery had an idea and he had the plan for the heating at that time and the inspector, were you the Inspector sir? Kirchman: I was the inspector that's noted on the 10/22/90 inspection report. Jeff Carson: No, no. But were you the inspector on site dealing with the heating? Probably not. .. Kirchman: There's no heating in the building so a heating inspector was never out. Jeff Carson: Again, it's not probably worth the debate here. Board of Adjustment and Appeals February 22, 1':)93 - Page 7 Watson: No, I was just trying to figure out if we had records indicating that that was the reason the building didn't go up. Jeff Carson: I don't think the records would ever reflect just that but from Mr. Lindbery's point of view, that's what happened. 3ohnson: Did he ever apply for a heating permit? It was required. 3elf Carson: I think, I'm not really that well versed on the permitting process. I think it was all encompassed in the. Watson: Original building permit? The original building permit says just a shell. Harry Lindbery: Are you familiar with radiant heat? Johnson: No, I'm not an engineer on radiant heat. Harry Lindbery: May I show them? Jeff Carson: Nell they have a copy of that. 3ohnson: We have a copy of that. Watson: Yeah, it's okay. We're Just trying to get inspections and permits straight. Johnson: And I guess another question I have, why wasn't the fencing process started or finished or whatever? It was indicated it would be done as a part of the conditional use permit. Jeff Carson: Fencing of? I expect the only fencing that would have been done would have been to block. 3ohnson: Yeah, blocking fencing I guess or. Watson: To screen. Jeff Carson: Screening. Well you know, the lay of this land is such that you can screen items, if you will, from view. Is everybody familiar with the property? You go down and then around and actually there's a berm that screens quite nicely and as I've said, and it was our, you know in this big units. Sometimes you build a fence to hide the biggest thin~ and you've done more harm with the fence itself. It's been our view of that, that the permit required screening, opaque fence, berming or landscaping and that that was satisfied by getting the units that were being stored out of sight essentially. And they really were out-of sight too and are today. It's Just that they weren't. They were up closer to the road and that led to the problems. Senn: Sharmin? Are the outdoor storage areas screened with'opaque fencing, berming or landscaping? Al-Jarl: No they're not. Board of Adjustment and Appeals February 22, 1_993 - Page $ Senn: Was a proposed screen plan ever filed at the time of the issuance of the building permit? A1-3aff: I have not found anything in the file. The only thing that has...is this one. Right here is the existing building that you see... driveway. The proposed building would have been here. Parking is right here. But this is all we have. This is the only thing in the file. Senn: Okay. So there is no proposed screening plan? A1-3aff: No. Watson: Because the original intent was to enclose this, was it not in this building? Al-Jaff: Correct. Senn: Well yes and no, except it takes kind of a giant leap it seems to me. Did the, well hours I suppose aren't really an issue here right? I mean the hours of operation aren't an issue under the conditional use permit? Al-Jaff: There is a limitation on the hours. It was between 6:00 and 7:00. Senn: But there hasn't been, there's no problem in relationship to that. How about light sources? Are all the light sources shielded? A1-3aff: There isn't a building. Senn: There are no light sources? A1-Jaff: No. Senn: Okay. Al-Jaff: There isn't in operation that we are aware of taking place. Senn: Okay. Have they complied with the conditions of MnDot, including the installation of the right turn lane and left turn lane? Al-Jarl: No. Senn: Okay. Is there bituminous driveway, parking areas, and loading areas? A1-Jaff: No. Senn: Is there compliance with the conditions of the resource engineering has written? I don't have that memo of August 9th so I don't know exactly what it says but. Harry Lindbery: That would be septic systems. Board of Adjustment and Appeals February 22, 1993 - Page 9 Senn: That would be septic systems? Okay. Is there protection of the two septic system sites during construction? Nell, they never constructed so that's a non-issue. Has there been installation of a holding tank? 3elf Carson: itself. think that would come at the same time as the building Senn: Okay. Is there a handicap parking space on the site? A1-3aff: No. Senn: Okay. Building must be sprinklered. Well, that's a non-issue if the building hasn't been built. Contractors yards, okay zoning ordinance. Okay. Comply with all conditions and natural resources and watershed district permits. Did they ever get those permits? Al-Jarl: There is a permit? 3elf Carson: Yes, we did. Senn: Have they been complied with? Al-Jarl: Nell there isn't a building. Senn: No, I understand that. Krauss: So no, they did not. Senn: No, okay. Have all the existing buildings been trucked off site and disposed of? Okay. Erosion control plan shall be revised to include check dams. lOC foot intervals on all proposed drainage. Has that been done? Has the erosion control plan been revised? Okay. Bear with me a minute because, the plan shall be revised to include erosion control measures. Okay, so that's no. Outlet subdivision of vehicle. Submission of a vehicle inventory list? Al-Jarl: That hasn't... Senn: No heavy equipment and machines will be operated between 6:00 p.m. and 7:00 a.m.. I assume that hasn't been a problem. No shipping activities will originate, so that seems like a non-issue. When I was looking at this tonight I really got confused because I don't honestly know who wrote this in 1989 but it's probably one of the poorest written conditional use permits I've ever seen. %4by, I mean there's mo reference, it seems like we screwed up. I mean there's no reference in the conditional use permit about a building and the building be completed which is pretty well standard form these days. At least when we do a conditional use permit. Krauss: Except that there is reference to a building in the conditions and you don't... (There was a tape change at this point in the discussion.) Board of Adjustment and Appeals February 22, 199S - Page lO Senn: When you look through all of this and shake it ali out, what we're here is not really for an ordinance interpretation question. What we're here is we're here to revoke a conditional use permit which has been in violation for quite some time and the conditional use permit, is very specific on that. I mean it says, this shall be done and if ! go down thie list, almost non~ of it's been done. Why aren't we simply revoking the conditional use permit? Krauss: Well that's been the subject of a lot of discussion and maybe the City Attorney can explain why it's here and what will happen next. Elliott Knetsch: The reason it's proceeding in this manner is because I think we've got a site plan that calls for the construction of the building and the building is a part of the conditional use permit. We wouldn't have granted him a permit without the building. While the permit probably should have said that, with the site plan that Sharmin just had on the board, I think it's clear that the building's part of it. ~nd even if you look at the last date submitted by the applicant, which is October of 1990 as having staff working on this as a valid permit, it's still been over a year since any activity whatsoever has taken place on that property in terms of completion of the building. So what happened here is not unusual. One day before the one year period was up, he got a building permit. Staff worked with that building permit for approximately a year. Then it went dead. So the building lapsed for a 'period of greater than a year. Secondly is the issue of use. ~nd z would agree with the applicant's attorney that simply not completing a building does not mean he wasn't conducting contractor yard activities out there, i do agree with that statement. Based on our ordinance definition of contractor yard, if he was using it as a contractors yard, even though the building was not completed, that would be valid use and the use would not .have lapsed so that the permit lapsed.- However again, I think we'd find, if we asked Sharmin and we asked Steve Kirchman, if staff has been out to that site since October of 1990, and whether any contractors yard activity has been taking place, I think their answer would be no. Nothing's been going on. Steve Kirchman was out there because he had wanted to check and insure that there was an active building permit. Things stopped. That permit went dead and so he went out there periodically to check to insure that building was not taking place without a valid building permit. So 'he was out there a couple of times and he has some logs that back up the dates he was there. It's also my understanding that Sharmin and perhaps other Planning staff have looked at that site and have gone there for the purpose of looking at that site, as ~ell as viewing it as they go around the city looking at other sites, and there has been no activity going on since that time. So staff has taken the position that based on our existing ordinances, the permit lapsed for non-use. Senn: I understand that all. I've read all that before you just repeated it, but the Question still remains. Why are we not revoking the conditional use permit on the basis that they're in vioiation of their conditional use permit? Elliott Knetsch: There's nothing to revoke. The permit is gone already. Senn: So that's your position? Board of Adjustment and ~ppeals February 22, 1993 - Page 11 Elliott Knetsch: That's my position. Senn: $o you're saying there's no need to revoke something that doesn't exist? Elliott Knetsch: Right. Senn: Okay. Why doesn't it reference in the conditional use permit or Exhibit A the site plan you referenced, like it normally would in a conditional use permit? Elliott Knetsch: I can't answer that. I didn't write the permit. Krauss: It pre-dates all of us Councilman Senn. Senn: Paul, I guess I'm real uncomfortable taking an action based on all this supposition whereas to me it seems like there's a very clear action here. I mean to me the very clear action is that you revoke the conditional use permit. That it seems nobody is debating he's in violation. Jeff Carson: Well, we would take issue with that. Senn: Would you answer these questions for me again then and dispute any ones that he answered incorrectly? Jeff Carson: The only thing I can say Councilmember Senn is this. The things that you pointed to, all of the construction and the parking and the bituminous and the lane and all that. Senn: Bituminous has nothing to do with the building being built. Jeff Carson: No. That was all going to happen at the time that the building was put up. Senn: But that's not what the conditional use permit says. Your conditional use permit says, okay. The permit is issued subject to the following conditions. See attached Exhibit A. Termination of permit. The City may revoke the permit following a public hearing under the following circumstances. Material change of condition of the neighborhood where the use is located violation of the terms of the permit. None of the conditions of the permit have been met... Jeff Carson: The City hasn't revoked the permit. The City has taken the position that it doesn't exist. I'm taking the position that this property has been operated as a contractors yard from the onset. The fact is is that the applicant Tan into a loggerhead over .the construction of the building. Nobody in their 'tight mind would pay $34,000.00 for a shell if he didn't intend to put that shell on the property. Watson: That dispute occurred in 1989. This is 1993. I can't believe that something could not have been worked out or-dealt with in the preceding close to four years. Board of AdJustment and Appeals February 22, 1993 - Page I2 Jeff Carson: Well you would hope so but keep in mind we've been under criminal penalty or prosecution since. Watson: '92. Je~{ Carson: Yeah, for a year. So I mean that's what I meant when I said periods of time. Watson: Then we have 3 years. Jeff Carson: Periods of time come and go here and they seem like long, incredibly long periods of time. You can understand them if you take them one date to the next date to the next date. I'm not saying that this is the ideal by any stretch. 3ohnson: Steve, could I ask you a question? Did at any time they come in for a heating permit? Kirchman: No. On my inspection of 10/22/90, I asked that they submit a floor plan, plumbing plan, HVAC plan and sprinkler plan so that they could continue with the heating and do as they wish and also asked that they set up a meeting with the Planning and Building Department to clear up these misunderstandings and we never heard from them again. Krauss: Mr. Chairman, the reason why it's brought to you here tonight is for an interpretation of the Code which is in your area. The Code states that if substantial construction has not taken place within one year of the date in which the CUP was granted, the permit is void. We've determined that the permit is void. The applicant's contesting our determination. I mean what it boils down to is, who's position do you agree with. 3ohnson: I understand what you're saying. Jeff Carson: And you can readily understand why the parties are taking the different positions but look at that section of the Code-contemplates that you have to have a building in order to have the permit. In other words it says, construction isn't within a year .you're out. To operate a contractors yard you don't need a building. Krauss: That's not true. I mean this was approved with a set of conditions. The applicant's attorney seems to be arguir~g that conditions are irrelevant as long as you manage to squeak something on the pr-opert¥ and go do it anyway. This is a package of conditions. It's typical of the package of conditions that we adopt with every CUP that we approve. You expect compliance with all the conditions. Senn: And the Code says. Krauss: If substantial construction has not taken place within one year of the date in which the CUP was granted, the permit is void. Senn: Okay, so let's get off the issue of the building which may be fairly vague. Okay. Has any of the other construction, other than the Board of Adjustment and Appeals February 22, 1993 - Page 13 building, occurred on the site? Krauss: No. Jeff Carson: But the point is Councilman, you wouldn't do any of the other construction until the building is in place. That's the timing of it all. You wouldn't do that. You'd do it immediately after the building is in. Senn: So now you're saying the building is part of it. I thought I heard you a little bit ago saying the building wasn't part of it. 3elf Carson: I'm saying the building doesn't have to be according to the literal terms of this permit. But we want the building. Senn: Well but see you're talking, excuse me out of both sides of your mouth. You're telling me the building doesn't count. Then the building counts. You're telling me none of the other conditions count' unless the building built. Jeff Carson: I'm saying that that's what was contemplated. Senn: That's not what the permit says. 3elf Carson: No. But logically. Seen: Okay. Alright. But you are in agreement that's not what the permit says? Jeff Carson: No. We're reading the permit the same way and frankly it could be clearer. 3ohnson: I feel is there was a dispute over the heating, I would have asked, went to City Hall and asked to have gone on the agenda to talk to the Council and iron it out if I disagreed with the Building Inspector. I'm not taking the Building Inspector's side but I've been down here jumping on. Jeff Carson: I' might have done the same thing sir. You know, and especially in hindsight I'm sure Mr. Lindbery'would do the same thing as well. I mean if I knew he was going to be told at some later date his contractors yard was void, I can assure you that's what he would have done. Why somebody does something or doesn't do something at a particular point in time. Johnson: As I understand, it's one year as I look been involved in this, there's nothing done substantial in a year and I realize the building didn't have to be completed. There was very little activity done and the city did let you slide for a couple of years. I'm assuming that's why they let them slide. Hope there would be some activity without putting some pressure on you people and all of a sudden, nothing's been done. 3elf Carson: Well to back off the literal reading of this and that for a moment, I would say this. I would hope that if at a point in time the Board of Adjustment and Appeals February 22, '1<)93 - Page 14 City staff or a city was going to teI1 somebody who's operating 40 acres of land as a contractors yard, that unless you compIete or unless you do something within 6 months or 30 days, or whatever it is. We're telling you. We're going to shut you down or we're going to void your permit. I would expect that. Maybe it's that the government has to be a little more on it's toes. I don't know. 8ut it seems unfair to 'come after the fact and say, I guess it's over. You don't have a chance to follow through. You don't have a chance to put that $34,000.00 shell that you bought on the property. Watson: But it's been years. I mean it's real hard to understand why nothing has occurred. I mean a dispute over heating in 1989 causing the fact that there's still no construction by .1992, I'm sorry. I mean any reasonable person. Senn: It's inmaterial. It's not even an issue in the permit. Watson: Well yeah. And there was obviously the intent to build a building which didn't get built. They did after all buy a building permit. 3elf Carson: Yeah. Watson: Which tells me there was intent to build a building in 1989 which is not there. Jeff Carson: I can't try to convince you that you're wrong in your reading of that or that the time that has passed has passed. It did. But I'm saying that it's, what you're doing if you take the'pro-offered action or inaction and just conclude that it's void, is you're taking a piece of property that has one value and one use and reducing it rather substantially to virtually nothing.. Watson: What you want from us is to say that the conditional use permit has expired? Al-Jarl: Correct. Watson: That's basically the action that you are recommending? Krauss: Well I guess the action is basically to agree or disagree with staff's interpretation of that section of the Code. Watson: How would that be stated? I mean it says here, find the conditional use permit has expired. If you want us to have interpretted the Code, exactly how would that be put into a motion? Al-Jarl: That same conditional use permit is void. Elliott Knetsch: I think you can just have a motion that you concur, with staff's interpretation of the ordinance as applied to this situation. Senn: If we void the conditional use permit, does he have the option of applying for another one? Board of Adjustment and Appeals February 22, 1993 - Page 15 A1-Jaff: Contractors yards are not a permitted use in the A2 districts any longer. It was switched from conditional use to interim use, I believe it was in 1990 and then contractors yards were deleted from the ordinance. Senn: But he could rezone the property. A1-Jaff: To? Senn: Krauss: the. Something that would allow it. No, not really. There's very, well I suppose you can go down to Watson: Did you see the property Mark? Senn: Yeah. Krauss: We do have a business fringe district. Watson: That includes Gedney and that storage. Krauss: No, Gedney is actually industrial but Gedney is on sewer and water coming out of Chaska. The only other non-agricultural, non single family uses down there are in the business fringe dist~'ict. The Plannin~ Commission has been very relunctant to see any more land zoned BF. Senn: No, I understand. I'm just asking 'if it's an option that the applicant has. Krauss: Yeah, there is a possibility that that yes. That is an option. Senn: And the use would be allowable under some form of rezoning, i ndustr ial or. Krauss: Well it does allow things like cold storage buildings. I'm not sure that it allows the contractors yard. Al-Jaff: It won't allow contractors yard. Senn: I've already heard that because contractors yards are abolished but what he's doing doesn't necessarily have to be called a contractors yard. Jeff Carson: Could I make just one further point? Krauss: What he's done to date has not been a contractors yard. Senn: I understand that but that's why I'm trying not to get into those kinds of semantics. But he can change the use of his property? Watson: He's free to apply to do whatever he wishes. Jeff Carson: Could Z make a point, one further Point please? Ny Exhibit 11 is a copy of the April 8, 1989 point in time when the Planning Board of Adjustment and Appeals February 22, 1993 - Page 16 Commission was considering the start of the abolishment of contractors yards in the agricultural zone. And I submit this, or I put the question back to the city. If at that time they had invited those existing contractors yards or those people with existing contractors yards in to advise them what was happening. ! mean it's fine to say well we published. We met the technical, literal requirements of the law but the reality is that in all likelihood no contractor operating a contractors yard read that. $o what happened here is that the gentlemen said, there's nobody here. We're taking action to remove contractors yards from agricultural zones and nobody's here. Why is that? Has anybody been notified? The answer was no. Well why not? Well, they're going to be grandfathered. So that took care of it. The problem is for someone in Hr. Lindbery's situation, had that been brought up at the time or had it ever been brought to his attention that unless you get this thing completed to our satisfaction, within a certain period of time, it's over. In effect it Just happened and he didn't kno~ it. That's really ~hat happened. According to the interpretation that staff has. And ! understand how that happens but it doesn't seem to, you kno~ it kind of doesn't pass the fairness test if he really, didn't know. If-he had been invited to that '89 meeting, or that period of time in the City's history where you were going to take them away, and he said what about me? Or you know, at that point he's going to say what about my o~eration or am I grandfathered or what about it? He's either going to. learn he's going to do this or else, or that he is. One of the two. And that's at least in part an answer to the real world. Answer to your question of how much time, all this time had passed. Could have been remedied pretty easily right here. I don't know how many contractors yards there are in Chanhassen. Can't be that many. There can't be that many. I mean if you're going to take those zones and deal with them, you must have a file where all those contractors are listed. Just tell them that you're dealing with the zoning that effects the location of contractors yards and I don't think we'd have had this problem. And I guess I'd ask you to perhaps not be quite so technical with the applicant. Say look, get your application in. Get it done within a specified period of time or else. Watson: But we. Senn: Already been done. Jeff Carson: No. Watson: That's been done. I mean .everything has a date. Senn: Can I make a motion? Johnson: First I need a motiop to close the public hearing. Senn: I move to close the public hearing. Watson: Second. Senn moved, Watson seconded to clo~e the public hearing. All voted in favor and the motion carried. The public hearing was closed. Board of Adjustment and Appeals February 22, ;[993 - Page 17 Johnson: Okay, now go ahead with a motion. Senn: I'll make a motion that we void CUP f~88-11 on the basis that no construction has been started on the site to date and that the a~plicant is in violation of a majority of the conditions set out ur, der the conditional use permit. Watson: That will do it? Senn: That's the motion. Elliott Knetsch: If that's your motion. Watson: Will that take care of what it is we're here to do? Elliott Knetsch: Well it's published as a public hearing interpretting the zoning ordinance. Watson: That's kind of why I asked you how do you want us to say this? I'd be more than happy to second that motion if it takes care'of the issue. Elliott Knetsch: I think Mr. Senn heard my, what my proposed motion was and he's made a different motion so, that's the motion that's on the ~: 1 ocr. 3ohnson: Do you want to rescind your m~tion? Senn: No I don't. I'm comfortable with that motion. I'm not comfortable with the other one. Watson: I want a motion that takes care of what we need or we're ~oing to be back here doing it again. Or the City Council's going to deal with it and we prefer to take care of our own business. 3ohnson: It will die for lack of a second. Do you want to make? Watson: Yeah, I want you know, I want what we need in order to put this issue to rest once and for all. Would you state that again please? Elliott Knetsch: Well, I would suggest that the motion would be that the Board of Adjustment and ~%ppeals concurs with the staff's interpretation of the Zoning Ordinance as it relates to this application. Watson: I'm happy. I so move. Johnson: I second. Any more discussion? Watson moved, Johnson seconded that the Board of ~djustment and ~als concurs with the staff's interpretation of the Zoning Ordinance as It relates to the .Conditional Use Permit validity of CUP #88-1! for a contractors yard at 1700 Flying Cloud Drive. Watson and Johnson moved favor, Senn opposed. The motion carried with a vote of 2 to !. Board of AdJustment and Appeals February 22, 1993 - Page lB Jeff Carson:' Sharmin, will there be Ninutes of this? A1-3aff: Yes there will be. Seff Carson: Printed? Watson: We've got Minutes. 3elf Carson: Printed Minutes of this action? Watson: We've got them right here. Self Carson: No, of this action. A1-3aff: Correct, there will be. Krauss: Now this is also scheduled on the City Council agenda. 3elf CaFson: Thank you. Al-Jarl: For tonight. Krauss: Following on the assumption that there would have been appeal. In this case there's not a unanimous decision at any rate. APPROVAL QF MINUTES: watson moved, 3ohnson seconded to approve th~ Hinutes of the Board of Adjustment and Appeals meeting dated 3anuary 25, 19~3 as presented. All voted in favor, except Councilman Senn.who abstained, and the motion carried. Watson moved, Senn seconded to adjourn the meeting. All voted in favor and the motion carried. The meeting was adjourned at 7=30 p.m. Submitted by Paul Krauss Planning Director Prepared by Nann Opheim