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5.5 Revocation of CUP 88-11 Contractors Yard on 1700 Flying Cloud Drive - Jeff Carson for Harry Lindbery ' CITYOF 6:5' i cHANBAssEN 1 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 I (612) 937 -1900 • FAX (612) 937 -5739 Aeon by City Admtnistratos Tandorsed_ ✓ w Modified MEMORANDUM Rejected Date .S' -3 -q3 TO: Don Ashworth, City Manager Date Submitted to Commission FROM: Sharmin Al -Jaff, Planner I Date Submitted to Council S=lid— 9` 3 DATE: April 22, 1993 g SUBJ: Revocation of Conditional Use Permit, CUP #88 -11 for a Contractor's Yard on Property Located at 1700 Flying oud Drive - Jeff Carson for Harry Lindbery. m On September 12, 1988, the City Council a a Conditional Use Permit (88 -11) for contractor's yard activities on property located -t 170Q Flying Cloud Drive (Attachment #2). Staff I took the position that the Conditional Use Permit had expired because substantial construction had not taken place within one year of the date on which the Conditional Use Permit was granted (Section 20 -236. Expiration - Attachment #4). • `' V On June 8, 1992, staff noticed outdoor of seven trailer/containers and ten round concrete pipes at the subject property. On June 11, June 24, and July 11, staff notified Mr. Harry 1 Lindbery, owner of the property, that the outdoor storage taking place on his property is not permitted and requested that it be terminated. Mr. Lindbery did not comply. Staff referred the matter to the City Attorney's. Office. The City Attorney's Office filed a complaint against Mr. I Lindbery. The complaint outlined the fact that there was illegal storage taking place on the property as well as the expiration of the Conditional Use Permit (Attachment #3). On January 13, 1993, the City Attorney sent a formal notification to Mr. Lindbery's attorney, outlining the I reasons behind the termination of the Conditional Use Permit (Attachment #6). Mr. Lindbery contested the City Attorney's and staff's interpretation of the ordinance regarding the expiration 1 of the Conditional Use Permit and stated that a public hearing is. required in order to revoke the permit.' I Section 20- 28(b)(1) of the Zoning Ordinance ` states that one of the duties of the Board of Adjustments and Appeals is to hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by a city employee in the I administration of this chapter. The applicant appeared before the Board of Adjustments and Appeals and City Council to appeal the determination of city staff. The Board of Adjustments and Appeals had a vote of two to one. On that same evening, the City Council reviewed the 1 pr Tils, PRINTED ON RECYCLED PAPER 1 ' Mr. Don Ashworth April 22, 1993 Page 2 ' proposal. It was determined that the Conditional Use Permit for a contractors yard was still valid, and staff was directed to bring back the application before the Planning Commission and City Council to consider revoking it based upon the fact that the applicant did not fulfill the conditions of approval that were approved with the application. These conditions were as follows: ' 1. All outdoor storage areas must be completely screened by 100% opaque fencing, berming or landscaping. A proposed screening plan shall be submitted prior to issuance of a building permit. 2. Hours of operation shall be from 7:00 a.m. to 6:00 p.m. Monday through Saturday. Work 1 on Sunday and holidays is not permitted. ' 3. Light sources shall be shielded. 4. No outside speaker systems are allowed. 1 5. Compliance with the conditions of MnDOT, including installation of a right turn lane and a left turn lane if required by MnDOT. 1 6. Installation of bituminous driveways, parking areas and loading areas. 7. Compliance with the conditions of Resource Engineering as written in their memo dated August 9, 1998. 8. Protection of the two septic system sites during construction. 9. Installation of a holding tank. ' 10. The building must be sprinldered. 1 11. Provision of one handicap parking space. 12. Contractor's yard activities only as defined in the zoning ordinance, are permitted. There 1 shall be no shipping or other non - contractor's yard activities. ' 13. The applicant shall obtain and comply with all conditions of the permits from the Department of Natural Resources and the Watershed District permits. 14. All the existing buildings shall be moved off -site and disposed of properly. 1 Mr. Don Ashworth April 22, 1993 Page 3 15. The erosion control plan shall be revised to include check dams at 100 foot intervals in all proposed drainage swales. 16. The plans shall be revised to include erosion control measures for the proposed construction within the immediate area of Bluff Creek. 17. The pond out -fall shall be revised to include a submerged outlet detail in place of the wooden skimmer. 18. Submission of a vehicle invento ry list. 19. No heavy equipment or machinery shall be operating between 6:00 p.m. through 7:00 a.m. 20. No shipping activities shall originate on site. The applicant has not complied with any of these conditions with the exception of obtaining an access permit from MNDOT. The applicant pointed out several facts in his letter (Attachment #5). These facts are as follows: 1. The definition of contractor's yard activities does not require a building; that is Mr. Lindbery does not need to construct a building on this property to use the property for a contractor's yard. Finding: This statement is not entirely accurate. The contractor's yard was approved by the 1 city as a Conditional Use Permit. Part of the proposal was a building to store some of the equipment. This was never constructed. ' 2. Mr. Lindbery has used his property since receipt of the Conditional Use Permit as a contractor's yard. Finding: If the applicant used the property as a contractor's yard, then he did so without complying with the conditions of approval of the conditional use permit which was approved by the City Council on September 12, 1988. 3. Although your zoning code has now been amended to prohibit contractor's yards in A -2 , Mr. Lindbery's use would qualify as a legal non - conforming use of his land. Findings: The contractors yard never received a Certificate of Occupancy nor was scheduled 1 for inspection by staff to determine if the applicant had met all conditions of approval of the Conditional Use Permit approved by the City Council on September 12, 1988. In fact, it cannot be grandfathered -in because a contractor's yard was not completed at that location. Also, staff visited the site on different 1 Mr. Don Ashworth April 22, 1993 Page 4 occasions as part of our conditional use permit review procedure and never observed any type of activity taking place at the site. 4. Although all terms and conditions of the CUP have not literally been met, negotiations between Chanhassen staff and Mr. Lindbery over the years have, in 1 fact, amended the CUP alleviating the necessity for strict compliance with the permit. (Example: the requirement that he remove all buildings from the property; conversations with staff concluded that moving caretakers into the house on the 1 property would be sensible for policing and safety protection both to Mr. Lindberg and to the City.) Finding: This is addressed in condition #14 of the Conditional Use Permit. What this condition refers to is the fact that there were existing buildings that were to be ' removed but that did not mean eliminate the storage building for the contractors yard. The applicant also states that staff had concluded that moving caretakers into the house on the property would be sensible for policing and safety protection ' both to Mr. Lindbery and to the City. Staff is not aware of when or if this conversation ever took place. ' 5. City staff is not suggesting violation of the CUP terms but rather has taken a position that the CUP has expired, or in the alternative, the use of the CUP has been discontinued. Finding: The applicant has not complied with the conditions of the Condition Use Permit. ' 6. A criminal complaint filed in the summer of 1992, regarding improper storage charged Mr. Lindbery with four misdemeanor complaints, are pending in Carver County District Court; Mr. Lindbery has since resolved the alleged problems. The ' offending units themselves were a part of Mr. Lindbery's use of the property as a contractor's yard. Finding: Outdoor storage in a front yard is a prohibited use in the Agricultural Estate District. 7. Mr. Lindbery has paid $1,164.33 for a building permit to the City of Chanhassen (10/26/89); $34,752.00 for his building shell (3/15/89); $500.00 to MnDOT for their review, all obviously with the anticipation that the building would go up as planned. (Note: The building permit was issued over one year after the effective date of the Conditional Use Permit and yet staff now alleges a one year expiration violation.) ' Finding: The Building Permit was received on September 11, 1989, which is one day prior to the deadline for submitting a building permit application. The permit was then 1 Mr. Don Ashworth April 22, 1993 Page 5 reviewed and released on October 26, 1989. This permit was for the shell of the 1 storage building only. It was never completed. 8. City staff continued to deal with Mr. Lindbery and the Conditional Use Permit as recent as October 22, 1990, over two year after issuance of the Conditional Use Permit. (These events all took place over two years after issuance of the Conditional 1 Use Permit indicating both that Mr. Lindbery continued to use the property in accordance with the terms of the Conditional Use Permit and that the one year expiration has nothing to do with the construction of a building itself.) 1 Finding: A building inspection was requested by the applicant for October 22, 1990. Staff met with the applicant on the site and requested he meet with Building and 1 Planning Departments to clarify the status of his permit. 9. Hearings to consider amendment of the code to eliminate contractor's yard from A -2 1 via Conditional Use Permit suggest (a) that existing contractor's yards would be handled as legal, non - conforming uses and (b) that no landowner with a contractor's yard was notified or present at the hearing. 1 Finding: Existing uses only can be grandfathered -in and this is not the case here. Staff did publish the ordinance in the Villager on January 24, 1991, as required by ordinance. 10. Mr. Lindbery has a legitimate complaint regarding the deficiency in the City's 1 procedural process to date: (a) the Conditional Use Permit itself says a hearing will be held if violation is alleged; (b) Code Section 20.237 requires a public hearing to consider revocation of a Conditional Use Permit. Finding: The City Council directed staff to reschedule this Conditional Use Permit to consider revoking it. The public hearing at the Planning Commission satisfies Mr. Lindbery's due process concerns. 11. Mr. Lindbery has met with other agencies as required by the City and has met all requirements of said agencies. Finding: Staff has no knowledge whether this statement is true or not. PLANNING COMMISSION UPDATE , On April 21, 1993, the Planning Commission held a public hearing to consider revoking Conditional Use Permit 88 -11. The applicant was questioned as to why the conditions of approval of the Conditional Use Permit had not been met to date. The applicant stated that he 1 1 Mr. Don Ashworth April 22, 1993 Page 6 had submitted plans to the Building Department for review but the city refused to issue the permit. Steve Kirchman, Building Official, was handling this permit application and conducted inspections for the site. Enclosed is a memo from Steve Kirchman relating the events that took place since Mr. Lindbery applied for his building permit (Attachment #1). Chairman Brian Batzli requested tabling this item to allow the applicant some time to produce a copy of what he had submitted to the city, however, the majority of the commission felt that the applicant had ample time to proceed with the permit and comply with the conditions of approval, but he failed to do so. The Planning Commission recommended approval of revocation of the Conditional Use Permit. The motion passed with a vote of two to one. 1 PLANNING COMMISSION RECOMMENDATION The Planning Commission recommends the City Council revoke Conditional Use Permit 88 -11. ATTACHMENTS 1. Memo from Steve Kirchman dated April 27, 1993. 2. Letter from applicant's attorney dated May 14, 1993. 3. Planning Commission minutes dated April 21, 1993. 4. Staff report dated February 18, 1993. 5. Conditional Use Permit (88 -11). 6. Letter from City Attorney dated October 29, 1992. 7. Zoning Ordinance, Section 20 -236. 8. Letter from applicant's attorney dated February 15, 1993. 9. Letter from City Attorney dated January 13, 1993. 10. Board of Adjustments and Appeals minutes dated February 22, 1993. 11. City Council minutes dated February 22, 1993. 12. Site plan approved September 12, 1988. 1 1 1 1 1 1 CITYOF I ' t : ili ri 4 v CHANHASSEN 1 1 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 1 II MEMORANDUM TO: Sharmin Al -Jaff, Planner I 1 FROM: Steve A. Kirchman, Building Official 4q. � DATE: 04/27/93 1 SUBJECT: CUP #88 -11 Revocation (Harry Lindbery) 1 The purpose of this memo is to document the Inspection Division involvement with CUP #88 -11 and Harry Lindbery. Facts set forth were gathered from the building file for II 1700 Flying Cloud Drive, the address for an existing home, a number of outbuildings and the proposed contractors yard building. 1 I wrote a memo on 08/03/88 to Jo Ann Olsen stating the proposed building must be sprinklered. These code 1 requirements were included in the staff reports and as conditions of approval for the CUP. Building permit application was made on 09/11/89 1 (attachment 1A), and a shell permit was issued on 10/26/89 (attachment 1B). The permit application, the permit and the approved plans all noted that the permit 1 was for a shell only and that additional permits were required. The approved plans (attachment 1C, cover sheet only), one copy of which is returned to the II applicant, further stated that sprinkler, plumbing and heating permits and plans were required. There is a record of four inspections at the site, II 1/07/89, 12/27/89, 01/03/90 and 10/22/90 (attachments 1D & 1E) . Fire sprinkler plans were submitted to the fire 1 marshal, but no fire sprinkler application was ever submitted. A memo from the fire marshal is included (attachment 1F). Plumbing plans were submitted to the II Inspections Division, but were inadequate and never approved. HVAC plans and application were never received. A memo from the mechanical inspector is 1 f el 4p PRINTED ON RECYCLED PAPER 1 Sharmin Al -Jaff 04/27/93 ' Page 2 ' included (attachment 1G). The septic system designer requested his design be rescinded on 10/23/90. This was done, and the approved plans were returned to him. A search of phone logs and daily activity logs reveal no further activity or communication with Mr. Lindbery, his agents or subcontractors. Not all staff kept phone ' logs. I made several visits to the site to confirm that building activity had not resumed (attachments 1H & 1J). Storage containers and concrete pipes were first observed and reported at the site on 05/19/92, and again on 07/08/92 (attachment K). Another visit was made to the site on 02/19/93 to take pictures (attachment L) ' These are the facts as can be determined from the building file. References to alleged conversations with inspections staff were made by Mr. Lindbery at the Board of Adjustments and Appeals meeting and City Council meeting of 02/22/93 and at the Planning Commission meeting of 04/21/93. I'm sure conversations took place that weren't recorded, but all inspections staff are certified, experienced professionals and would not knowingly prohibit anyone from installing systems or structures permitted by the code and the City providing all requirements of both are met. 1 1 1 1.- 14 • COMMERCIAL do INDUSTRI • - - CITY OF CHANHASSEN - ,: _ _ BUILDING: PERMIT = APPLICATION. - INFORMATION -, - r r , y -, -_ , • . - -,1.: s - , ts -r i ,t om rs . - F `°3' "a .ft R ; Date: Sept • 11 1989 - , 3 3y - �,.ti ,, , -_; ; , : -- ::pt. - Zonis - Distrio s= - ; 3 , :: ° _:>;` _ k S. . .,•r ° . ,• . �? si te a : :,.-17 ing C 0r. ' C ias• ax 553 . ;: "' • 2 ° ? i _ °, - - ':- r c �s.•� _;�$ �i'� ' a1s w � it- ° i•...5_-�sr - =�i > •if,. .� k ... _ "• , .5. ' ' '�j - • 2ue ca ts {{r a ' » �. .•- -. New: A ,� -_-t A s " r F '_- t` . � .an a i • �� a s�"�., -sue' ?�.;� -��._ �� # n .. � -� ,� _, � � .� - � "�� Repair ' �� . •�. `.':��.;,;'��Additio n: - ��` ` , �� -,�'•� �',� ' ..`, �> - a` tea. ." ... � . r ^r' O ''''' . O w � er .: 4 Harr: y- Lind • be e' 4 �l'.'4'4'"- r. k :x -`� ' ' '' z' A t Ol . Contractor: r Same . , -,,-,2_,.., � , � ?4 � rF� £� : Y . . ' ;" �,r - - -.. ,: - . v_4. _ . r . :, d „,-.„ � z � _ �. _ _ �°:. °-- _ .._� - -, =,a :�� , d dess : ''....1•,i-,,:! � Ky �y: �i y ; ,. - C� ;�. ;=y.,' _ 938 ;9570;x a ? ' �' _ : � :. Ph z �, . � s�._ `-',-W if ', • Block= No _. Subdivision: • , ” ,, 6 -4., ?� - ' - . .,- *, 1 1. . ° y ,---• :4-,„ .: , _ t .'+ls` -c.r Y : " "= r - i s. A t 3 s Pr op er ty= Ia f tion 03 4.040 0 f: , {_. ,: r ., - - - '''-'.,-3.1.'-f-- , ;,: e ct �` " 34° - -N:. K. ! . ' `" Seio No: - 1= �' � : ��" i .�'` . L and e: " a� .ti - ` . �;: °:: Valu g Valu d ` r „SY� Buiid3n o' /y– ;Acr ea' e _ 4Q` . . Estimated F'y 4.:.t-=:.;44.;,.. _ '' > -:' z ated Completion Date: ;;'' : .- : K .; =e " - ,.,;�..,__ .- ' - �' - _ _ e- � of_.: Bu �" �, Buildin Dimensions= - , - ` ; ',y,: f _ra < °-'- t. :;- =y__ _ f,, . �. ,_ __,,. - R� 9 _ 70 X 100 -_ _ . _,,�� ' <Area 's' oar" ~� � � 71',Y>�Q � - _ �' `' � _ " ~ - t q e Feet: >; ,. - = Type of __ _ ,? :- . •'3 -• x ° '- r > Constructs II -FR'• II -1HR' II-N¢ _ ;III- IHR. - ' '" ' 'III -N` TV -HT V -1HR Type �of .Fuel: _ - Oil: '..'-,-`',,„f _ - ' Gas: -X Electric: ._ Air Conditionin Yes"' :No X : of Heat: Water: X Steam: Forced Air: " 94; -' _ _- _ " ,y For _Solar .Supplement: Yea No ' _ " _ ;. Is_Building Sprinkled: Yes X N - ° ' - ... -•''...,, -. , • - ` What' Materials will be Stored: Cons Equipment &:. - -- = Is a Variance Required: Yes No X If so, has 'avariance been approved: Yes "- : No " 1 + r**** s***** s***+ r* ar*+ r�r*+ r**+ t+ �r**+ r�r *�r *ir+r *+Hr+r * *+r * * *+ **+rs* - • _ _ = x*** r*a ir* �rr�r�r +r+f+t+r*�rr�rat * *+Nrr,r+t .: - _ THIS IS AN APPLICATION FOR A BUILDING PERMIT AND NOT TO "MI AS THE ACTUAL PERMIT. " ' THE UNDERSIGNED HEREBY AGREES TO DO ALL -WORK IN ' ACCORDANCE .WITH THE ORDINANCES OF THE CITY _ I AND_ THE RULINGS OF THE BUILDING DEPARTMENT. C Y OF.CHANHASSEN = - : J "6901: Maloney. Ave. Hopkins,Mn.55343 = } • Address / G e:' • 938 6610 7 • 938 =9570 - , A lican ' Signature Telephone Number (Home) ► �r+ r * *+t *+H►�r * *at+ritar *�rir * *a * ** +r * *+a +rt+i *+r+ *+r *+r�r * *+r** *a a APPROVALS: ! jf , f�/O G� � /� / � _ - Fees. C' � ig/LsQT FE•e/Yt c - 7 - Ir . � � _ 404._411 ' • ' _ • , • Permit Fee ' Buil•ing offs- - i �3a - r .. _° , * - - Plan Check- Fe , '.t•��a _ �c ✓ S Cte :� ` �% D U ire �. =7- = -_ . _ - J . _ } -, ,- . Sewer Surcharge . - - ;._ -•• iG i - , i a . _ ' '' ._ - 1 !%�� -'�-� : : ; "', =;;4 _tea Park Dedication; Fee:,. �r- ;.F - _. Ci PI xf er' C/ � : ' Trail Fee _ ' ; Planning Case No." , Water Unit" / 41/ Ai /. ' . Sewer Unit . ^., - • - - _,_ Water Meter - ' :� ? s y �s "';s; o a r_ ._:: k i � r s:. .'r•.r _ - _ -� " 'r - . , > ` "S.G S - - ,: ; -Z. ,., . . -g -W `.-e ,':`:::::;.. i `? mo t - - `.. .A. / ' TOTAL...= _ S. II Park a_ = creation - RECEIVED SEP 111989 - -; . ; 7, , ; "_- -, . - . a;; - /� /� �I�JJ PUBLIC Au ICt � � � • F / ` r.[�V�VS f%-'5A-4_4_, FlN/FLT �� w / �L /!�N 1.41, P "/ � tri �r . ^` !IL/ . /7X Ato,,f x:', Duuuiny alru y v,ruwn 690 Coulter Drive — P. O. Box 147 W I Chanhassen, Minnesota 55317 SHELL PFD;T' 612 — 937-1900 APPLICATION FOR BUILDING PERMIT CITY OF DATE 10 I RESS 1700 Flying Cloud Drive CHANHASSEN EST. BUILDING VALUE $98,000. Name Barry Lindbeity ZONING DISTRICT Z t Address 6901 Maloney Ave. RES COM X IND. PUBLIC City ilopkins, IV Tel. 1■11) NEWS._ EXISTING P.I.N. Name i O SUBDIVISION Un Address City Tel. No. LOT BLOCK SECTION NORTH HALF SOUTH HALF 7!: hereby acknowledge that I have read this application and state that the 'formation is correct and agree to comply with the nhassen, Minnesota $ 630.50 ances and // : St -te of Minnesota 1a A y •ulati ping construction. Building . ligature of 10 Plan Check $ ermittee i• i A �`r 49.00 . CALL FO 'r L INSPECTIONS LIST A Surcharge SHELL PFR4IT COM $ I D BUILDING CARD S.A.C. $ � g PHONE 937 -1900 TWEE SPACE 75.00 Sewer Surcharge �l PERMIT. $ I DO NOT WRITE IN THIS SPACE Park Dedication $ PERMIT ISSUED Trail Dedication $ ` 7 it off} sYf9 Water Unit 3 On I On the express s condition that all work shall be done in accordance � P wtj'um with the ordinances and building codes of the City of Chanhassen Sewer Unit and the State of Minnesota. This Permit is void if work is not com- menced within 120 days or abandoned for 120 days. Water Meter APE ISSUED. $ Bui ing Inspeption Division r Public Safety Dedicat' n �( / vT $ BY l Other Fee rl f 0 I t' / $ J TOTAL FEE PAID ( 1164 1 I 1. . L 1 1 .....�ti N, 1 1 1 _ --c- tk -)skr. - ?'. C:30N 4, Z 1 1 4g.,4 1 5 ; ti ,+ \, `, ,.... _ . !,,,x,,,,, z .y 90' "S" ova KALI. • IAA: S + r:,,Neo. .. 1 o i > i 2o '. o• \ s s o • OuT /w OF CONIC. ' • T4 � OV?1!?l�LC_fe4S103 71 .scR'1 I sn /4 o z f; . 9 ' -0 " 13'- 1 -0 " 14 14'.0. Ib Ft cfs., 8 s _ ? N 14t• 1 �t ei f 3 11 _ �w' 1 ! • b. � S I N G y.f • } ... Y •r i I • g kW za 1 ' 0 O K. 0 n • le Ir I 4 G - GCUTLR /cw7iR or AucMeii 604.TS D © =� "' — — -#- 1 " -O 0 1. I r N _ 1 m z – °" Io N . �� 13 0 I a ►w ° 0 6 4 c/c. OF .. 001-T, w — o a � -< +' * — - o 0 J L C7 ,. T1 Q 0 P. : 1 : Z n ` 0 . ` mD p o '1 r �r 0 -4—r o 1 31 IW (ID ►D 4 A DI l> N r = I i 4r-� A 5 1z � nR b D. m '‘ iee8R1 . m {`J a F4 - P I 4 A' - •0 Oat: � 7 1u4 m t I 1 IJ CO i 0 I i 1ilr ,_ 1 1 A 19 "O ,. IV- I _ 14' "0" _ I4'•O" 14 = . ID= I % =" 2' VI LSI Fi - o' -o" O'- " OUT OUT - P CONIC It P T m OUT /tY O CONC. .. wQ 111 O . 0 _ INSPECTION REPORT I NSPECTION REPORT 4 CITY OF CHANHASSEN, MINNESOTA CITY OF CHANHASSEN, MINNESOTA 937 -1900 937 -1900 INSPECTION FOR C62L0.i(1C>f LuGCXXcJ DATEP INSPECTION FOR ..4 �� - DATE // / TIME T / /°N-dg " / // � �/ TIME & DATE INSPECTION DESIRED 4 = 4 ' 4 / /� TIME & DATE 7�I j NSPEC ION DESIRED ADDRESS / 7 (/ t, -'11 ` (0 LA. 0 07 PERMIT NO cS C / 3 ADDRE /(/ / � � >� RMIT NO " � f(cc Lind b ^ c� // ' / CONTRACTOR LUCt --c �C.L.(S/ C_CY�J TAKEN CONTRACTOR � �L'LL�. � .�`t`� TAKEN BY. CZ WATER METER NO WATER METER NO REMOTE NO. REMOTE NO. LOCATION LOCATION C CORRECTIONS CORRECTIONS ______Asx_m_D_________G ortRt-t 4- c-c ) C�, 24 e C gels cti iii ,,,,,„, ,) .5,.... ecbev-%i,te--- .,...,, ps,(7 2 . . .,..1 _ 1 o P C-orLNc� --' 2 '� I N s 1 3 24\ k, c4, 1 rc!{ -Q iv P5) "c o'K---- 1 t7 S i 0 4... CL----- 4 i. ,-- pN;;O-fd 0 0 P15 i.).i , i 7 t -, G CA -"..`-/ r c) tk-) ,, r•si,7, I If no corrections are listed above, approval is hereby given to proceed. You will be in If no corrections are listed above, approval is hereby given to proceed You will be in �. violation of the ordinance if you do not call for the proper inspections and make cor- violation of the ordinance if you do not ca or the prope inspections and make cor- recti n as called for. rection as called for. 7 : is" ..- t) 7 - ) 05-; 4-- el ii _ D e Time Ins actor D e Time • Inspector • — — — — NO — MI — — la — MB — — NE NO MO In — IN MI MI MI . MO 11111 1 . MI NI MI MI MI � � ' _ N — r r INSPECTION REPORT , ?� _ _ INSPECTION REPORT r CITY OF CHANHASSEN, MINNESOTA CITY OF CHANHASSEN, MINNESOTA J } 937 1900 �og ac.P 4,237 -1900 INSPECTION FOR `- f f L 4 C, j y Id DATE TIME INSPECTION FOR -3 1"efra .5 �► DATE_' Z TIME TIME & DATE INSPECTION DESIRED 1 , 4:::)t) � V/ 2 2 44 TIME & DATE INSPECTION DESIRED 1 3 O 1 / 3 Wes ^e ADDRESS (Z 0 F1 I £A OVrf PERMIT NO. ADDRESS \100 c1�I,v-,)1 Cu o» Or PERMIT NO. �S43 CONTRACTOR- r?r r k 1 - I h ( UF A r-c / TAKEN BY. CONTRACTOR 411c. L v-R —eLIA end i TAKEN BY._ WATER METER NO. V WATER METER NO. REMOTE NO. REMOTE NO. LOCATION LOCATION CORRECTIONS,�CORRECTIONS __1) S w cv P OF /►4 (1 UD� lay, ier� i.tt 6�� C.t I , c 0 1^ a prrO Uai !" (.b 2. ) (or flovi pi 1 , eX--- \---) A '. r fr,,, i) \ I., tA s 1-4\ p. I c.. , ,A. t cLe ft 4) set- u p Ai 11 Jp (3%.-.9p4., c:. - 4 If no corrections are listed above, approval is hereby given to proceed. You will be in If no corrections are listed above approval is hereby g' n to proceed. You will be in violation of the ordinance if you do not call for the proper inspections and make cor- violation of the ordinance if you do not call o the p.• per ' spections and make cor rection as called for. rection as called for. i z 2/90 /( °b k �� I . Spector Date Time Inspector Date �� Time / it •I' 1 CITYOF 1F CHANIIASSEN ,..3. 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 ' MEMORANDUM TO: Steve A. Kirchman, Building Official FROM: Mark Littfin, Fire Marshal A, DATE: April 28, 1993 p SUBJ: Fire Sprinkler Plans /Storage Building - Harry Lindberry In 1989, Mr. Lindberry submitted a rough preliminary set of fire sprinkler plans. The plans showed only the piping. It did not show a water source, fire pump or water tank, which it would need due to the unavailability of Chanhassen City water. During the early submittal stages, I explained the problems to Mr. Lindberry on at least three different phone conversations. The plans also did not include hydraulic calculations, name of the A firesprinkler designer, and was designed for an ordinary hazard, and it should have been 1 designed for an ordinary hazard group 3, which is for repair garages. Basically, it was a very incomplete set of plans, and a permit was never applied for or issued. 1 1 1 4rs a�� PRINTED ON RECYCLED PAPER 1 1G 1 • C ITY OF „„ CHANIIASSEN 1 ,.._,..,.., , . ..., ,,,.. _ . t .. rs„ - ->,,;_ ` ^ x ; 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 0 _ + (612) 937 -1900 • FAX (612) 937 -5739 MEMORANDUM 1 TO: Steve A. Kirchman, Building Official 00A/1 6 FROM: Carl Barke, Mechanical Inspector I DATE: April 30, 1993 SUBJ: Harry Lindbery 1 1700 Flying Cloud Drive 1 This memo will be addressing the comments of Harry Lindbery made at the Planning Commission meeting held April 21, 1993, and some of the issues involved in the public I hearing. Mr. Lindbery indicated that he had submitted HVAC (heating, ventilation, air conditioning) I and plumbing plans to the Inspection Division for review. I do not recall receiving any HVAC plans and they do not exist in the property file. However, I had a conversation with Mr. Lindbery regarding his desire to install a radiant heat system in the floor. It was 1 brought up at this conversation that a radiant heat system in itself would not meet the code requirements for ventilation of this type occupancy. It was also brought to Mr. Lindbery's attention that HVAC plans signed by a registered mechanical engineer would need to be 1 submitted to the City for review and approval before an HVAC permit would be issued. No permits were denied on the basis of his intent to install radiant heat in the floor. is 1 Mr. Lindbery started the installation of the plumbing system without approved plans or permits. I believe this - was discovered by the building inspectors during one of their inspections. No stop work orders were posted, but the plumbers were informed that they 1 could not continue until plans were submittedand approved, and permits were issued. Prairie Plumbing Company submitted a drawing to the City and applied for a plumbing permit, but the permit was denied because the plans had not been submitted to the State 1 Department of Health for their approval, nor did the drawings bear the required signature of a registered engineer or master plumber. To date, no approved plans have ben received and there has been no further communications since the permit application date of 10/26/89. 1 4Is t4 . PRINTED ON RECYCLED PAPER 1G Steve A. Kirchman April 30, 1993 Page 2 Mr. Lindbery also discussed at the Planning Commission meeting the alleged problems with ry g g g P the flammable waste separator size and location. The minimum size permitted by code is ' 35 cubic feet which corresponds to approximately 265 gallons. The capacity requirement is to allow petroleum products to accumulate and vapors to evaporate into the air through the vent system thus alleviating the potential for an explosion in the sewer system. As for the location of the separator, I believe Mr. Lindbery was confused about it and the requirement that it needed to empty into a holding tank. The flammable waste separator must be located inside the building, and the holding tank must be located on the exterior of building. ' Flammable waste separators are not allowed to empty into a septic system because petroleum products would cause failure of the system by killing the bacteria that treat the effluent, thus the requirement for the holding tank. Mr. Lindbery indicated that an 1 inspector required that he move the flammable waste separator from the interior of the building to the exterior. There are no inspection reports in the file which would support his statement. I believe his statement to be incorrect for two reasons: 1) If an inspection was performed, it would have been to halt any work in progress until the proper permits were obtained. 2) All knowledgeable inspectors & plumbers know a flammable waste separator is required to be installed on the interior of a building. To date, no plumbing permits or HVAC permits have been issued and work has not been allowed to proceed. 1 1 1 1 1 CHANHASSEN PUBLIC SAFETY DE PARTMENT 1 HI INSPECTIONS DIVISION DAILY ACTIVITY LOG II Name: Steve Ki rchmEai Date: Slrql Day: i Time Time I ,Arrived Cleared , Address Inspection Ap. Comments Not A IL 8:00 e 1 "t-L(\ C1CY\,-,a 8 II :30 ,- g3o q 15 � r C C.:1* <<Q h n r - (off �. 1 9:00 lc �o II 9:30 11 C 1 l•ccll (h r'20 10:00 1 10:30 II 11:00 II 1:30 II I. o � v v 2:00 11 2:30 1 :00 II :30 1 .3° 2' c ; , 1- -e4 Pi .014 ,,- u w 1 00 30 2 3 0 1 00 7 / � CO '1 �/ 41-Pr's f 30 L/ 7l lio — 1Z h' o .3 i5o r . E\ 60 ' ) �, Do -3ao �-o , 1 C ( N.1 _ V\ e l) \ 4, I s P11L1?ACF - - -- Start: 1 II CHANHASSEN PUBLIC SAFETY DEPARTMENT 1J INSPECTIONS DIVISION DAILY ACTIVITY LOG II Name; S--Qu I --Q I( Date: (2) ) 9 1 Day: UJ Time Time Arrived Cleared Address Ins.ection Comments N MI c.111:5 C 1 1�. el t".i - al 1 4,3 3 b,ned b5 20 I \ t:,,: ) 1 NI 1 30 -S° lam ( 1 i • , • 1 00 \ t , 1 O 4r° 1 c k t„C-c l i 1 1 E , 1 I1 ,o 2� l,, l ► - r ' Z - ? »U to 1) dati,-, l`'1 o 1 ,'Z- ;1 ) . mo 2 26 1 1 1 IA Bk LACP- Cric .514.p war 3 ) ii �,4n e_So ( 1 3\' < x r'r -t SO , s 1 J Z Z 1 ( , 1� 4c �crw+r7 ? hp w v(� )0 1 305 ir oJ r C-t• • Qr05 ; c "/`J l 1 n ' o MILEAGE - - -- Start: Finish: 2 1 .. MI MI NB IN In MI — la 110 MO — — — — — Ea in i - INSPECTION REPORT REPORT INSPECTION R ORT - *.. CITY OF CHANHASSEN, MINNESOTA CITY OF CHANHASSEN, MINNESOTA 937 -1900 937 -1900 INSPECTION FOR DATE TIME INSPECTION FOR Lk I era 1 3 bof`ly DATE TIME TIME & DATE INSPECTION DESIRED Z ' S J V TIME & DATE INSPECTION DESIRED Q ADDRESS I -. t CI Wei PERMIT NO ADDRESS 1 t5O .11., v� C I b U (.2. t r PERMIT NO. CONTRACTOR 'RQ L. j .�. , � .LP r TAKEN BY: }� -yt-r �( ll d CONTRACTOR a Lt u. d 1 3e.r TAKEN BY. WATER METER NO _ WATER METER NO REMOTE NO REMOTE NO - - LOCATION LOCATION CORRECTIONS CORRECTIONS b ,......,, s I p)ac • ti� `'o t- Co'- .c r i et SSG 0, c,-is / (( *&C If no corrections are listed above, approval is hereby given to proceed. You will be in If no corrections are listed above, approval is hereby given to proceed. You will be in violation of the ordinance if you do not call for the proper inspections and make cor- violation of the ordinance if you do not call for the proper inspections and make cor- rection as called for, rection as called for. -' a I 2 3° 4-a • `I d 7 bI ,==)? I 1 ks 4-0(-1( Date Time Inspector ate Time Inspector INSPECTION REPORT 1� CITY OF CHANHASSEN, MINNESOTA 937 -1900 INSPECTION FOR \/ �'� � l� DATE TIME TIME & DATE INSPECTION DESIRED b0 11).73 ADDRESS 1 b© C I pLlCP PERMIT NO • CONTRACTOR__ r'r 6 . “ r I6- TAKEN BY _ WATER METER NO REMOTE NO. • LOCATION CORRECTIONS v\ spSu s k, w , T . 01 tet r( v o 1 4 5 i h s pkc *-1 c Ni --t-i pi S ca hm u� 3� . 1 o c-cr --1 o iN5 5 a - ol,ejt wo-t A- 41 • If no corrections are listed above, approval is hereby given to proceed. You will be in violation of the ordinance if you do not call for the proper inspections and make cor- rection as called for. )9 3 2 °v 4k ce ) ( i te Time Inspector D 11111 111111. I OM O i 1111111 - M - - - - S CARSON AND GLELLAND ATTORNEYS AT LAW I 6300 SHINGLE CREEK PARKWAY, SUITE 305 JEFFREY A. CARSON MINNEAPOLIS, MINNESOTA 55430 -2190 TELEPHONE WILLIAM G. CLELLAND (612) 561-2800 STEVEN C. HEY FAX ELLEN M SCHREDER (612) 561 -1943 May 14, 1993 F . Itrs II Ms. Sharmin Al -Jaff, Planner I VIA FAX & U.S. MAIL CITY OF CHANHASSEN I 690 Coulter Drive P.O. Box 147 Chanhassen, Minnesota 55317 II RE: Harry Lindbery - Conditional Use Permit 1700 Flying Cloud Drive, Chanhassen, Minnesota II Dear Ms. Al -Jaff: II I enclose by U.S. Mail and fax a letter from Mr. Bob Stolp of Prairie Plumbing Co., together with the plan he drew and submitted II in June of 1990 to Chanhassen. The letter, in part, confirms what Mr. Lindbery was telling the Planning Commission and Council regarding the efforts made to convince your inspector that the inflammable waste tank should be inside. Thank you. Very truly yours, CARSO AND CLELLAND II J frey A . Carson ' JAC:nrz II Enclosures II II II II . - .. I ,...4 - • ?•.: . i t 1- I 91 " °" IV- 1 S- o" . ■ . 1 0" „.... 1'5'. 1 , 21 . . • . 1 -.. :"..-•.- , ... i . i ,. . ...14... v. L ive t ... ... . . . ,....... ..,.... ..„:„ 2 • i . i 6 . IP I 4 , 0 i . . . .. ,....,,, .7... .......... .,. 0,... to_ ...t. . - , •. :. : • , 0 . -• , t 1 .-- .•'.!' •••... .,,,. Lt 0 0 • sc 0 C et tAs ... • . 8 . ! . ,..• .. . . .• ' t i • , , . ,• , ,, , I . . • • I. F --, • ! 7s•k% -":" 0 ' . : .• . le - • I , m i .11 12" r _ . l ..... ..— --_ . ......... • -...•::_ .• cow- • -2 •CO.I.ITE.R/CLI,ITER oI ANCHOR FSot.15 ..i.: 1 .„, :•••.:-: ,•-:;:::-.:- - . + . . . 01-- -1 I I- ... I . „,....„... CID 11 er 7' / c.i 1 ...,;:;::. ............-- -- 4—______ IQ _.. . • 1 LD. I , 0 • CO • il , ....:::. . I a Zd 0" 1 I . 1 . . • . 3 -fi4 6% Cie. or •••.• 0-To i • • • Ur • fl --- 41- ... 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I • . r . .... i I i " • ■ ! •,...•a,„., -. • __g rii • • . • • , . , • . , ••„.../..„.:. 4 -, , t_.,,L" ,. .,___,,,.__ IL,:. 0" , ,,... I,12. - . ... .....„.. R- _.. • .,i , _ 5.•:. . -•-......--: :::„ 7i ....—C•0 e ourilks c.f. CONC. ..' ' . 4 • 70 b" ouT / ou T oF CoNICPEETE. .. , Ns . 90 B ovER . • - • ::/.• , 1 1 ,... . • , • PRAIRIE PLUMBING CO. 1 3132 Colorado Ave. So. St.Louis Park, Mn. 55416 • ' May 14, 1993 . To Who It May Concern, Prairie Plumbing was awarded a job of plumbing a garage building at 1700 Flying Cloud Drive, Chaska, Mn. • I installed a inflammable waste tank inside the building where they normally install them on June 7, 1990. Chanhassen staff man required said tank installed outside of building. We complied, and then asked fox plumbing permit. r Staff: man then sent us to Minn. Dept. of Health, Plumbing Unit. We talked to Roger Foster, Head Plumbing Inspector. He suggested we put tank back inside , building as Mn. Code requires it inside building. This was done and ask for plumbing permit. Staff man refused permit, because ht was not familiar with flammable heat • or radiate heating. Yo s trul . OTolp 11 1 1 1 1 Planning Commission Meeting 1 April 21, 1993 - Page 1 PUBLIC HEARING; CONSIDER REVOCATION OF A CONDITIONAL USE PERMIT FOR A CONTRACTOR'S YARD FOR MR. HARRY LINDBERY LOCATED AT 1700 FLYING CLOUD DRIVE. ' Public Present: Name Address Harry Lindbery 1700 Flying Cloud Drive Jeff Carson Attorney for Mr. Lindbery ' Sharmin A1--Jaff presented the staff report on this item. Chairman Batzli called the public hearing to order. ' Jeff Carson: Members of the Planning Commission, my name is Jeff Carson. I represent Harry Lindbery, the landowner. At the previous hearing just referenced, where there was an attempt to void or reach a determination that the conditional use permit was voided, apparently enough issue was raised about the use of the property by us over the years to redirect the thinking and bring it back to this body. It's pretty clear, if you all have a copy of the staff report which includes the Minutes from that meeting and the discussion that took place, I think I used at that meeting the phrase pretext hearing. Meaning this hearing. It's pretty clear that it wasn't designed to be a hearing to determine whether or not there was ' something that could be worked out based on the staff's position but merely a hearing to make a determination that the permit should be revoked. That's their position. We explained at the last hearing that ' the applicant had run into a roadblock in the process of constructing his building. Questions were asked and answered about the timing of it all. There appears to have been a long period of time transpired between the issuance of the original permit and today and I guess I can agree that a long period of time has elapsed. I think that a lot of it is accounted for however and I would ask this body to remember or consider that the city was dealing with this property for a period of time long after, for over a year after the original year that the conditional use permit preports to require complete action. And I also explained that Mr. Lindbery was physically unable to do anything for a year's period. So there's big blocks of time that have elapsed and we don't deny that. Then you also have to consider that there's only a relatively short period of time after 3/4 of each year that you can actually construct. All that by way of explanation, Mr. Lindbery wants very much to proceed with this project. We raise issues about the rezoning and the grandfathering nature of it and the fact that he has actually operated a contractor's yard in one form or another since the inception of this permit. He has not ' however built his building and if you look at the long list of items required of that permit, we claim that some of them were waived de facto by the city staff during this process. And the reality is that most of the requirements will come due after the building is placed on the 1 property. He's willing to conform to whatever requirements you make but he can't do those things prior to putting the building on. Mr. Lindbery, total up the purchase of the property and the items that he's purchased in anticipation of operating his yard there, including a $34,000.00 building that is presently stored elsewhere. $8,000.00 worth of heating coils, which was a tremendously big issue unfortunately with the Building 1 • II Planning. Commission Meeting April 21, 1993 - Page 2 II Department here. He has in excess of $250,000.00 into this property. Thi project. If you accept the rezoning and the fact that the conditional us permit is revoked or if you do that process, it's his estimate that the value of the property is approximately 25% that figure. He simply can't afford to have that happen. Not many people could. And so he asks you t consider all these things recognizing that his story isn't perfect and I can't fill in every gap to satisfy every concern that's been raised by staff. But he is willing to work with the city in any way that he can. I you want to put a timeframe on the process, he's willing to do that. He' willing to put conditions on. He understands now that when somebody says time is of the essence, that's what they mean. We can't change the history of this but we would ask you to consider going forward with a II working relationship. Contrary to the indication I guess of the recommendation of staff. That's really about all I intend to say or all I have planned to say. It's a pretty serious problem economically to him i� this permit gets revoked and he's left with an agricultural piece of property in that location. It essentially becomes useless. I'd attempt to answer any questions if I can, or if I can't I'm sure Mr. Lindbery II himself can. That you might have. Batzli: What I think we will probably do is close the public hearing, assuming there's no other public comment and we will probably have II questions for you once we start trying to look through this, if that's acceptable. Jeff Carson: Do you want me to sit down? II Batzli: Yeah. This is a public hearing. Is there any other public comment? I'd like the record to show there's no one else in the crowd I except the applicant, his attorney, city staff, City Attorney, and the Planning Commission. Is there a motion to close the public hearing? Conrad moved, Harberts seconded to close the public hearing. All voted i, favor and the motion carried. The public hearing was closed. Batzli: Diane. II Harberts: I'll pass right now. Batzli: You'll pass? II Harberts: I will. II Batzli: Okay. Ladd. Any thoughts? Any comments? Conrad: You didn't ask staff for their position. Are you doing this II differently? Batzli: Well, we got the staff report up front. 1 Conrad: I guess we did. I guess I'd ask the applicant one question. You know contractors yards are not one of our favorite things in Chanhassen. II It's our attempt to control a function on some property that probably has some history in terms of doing a business on that yard, but a while back II 1 Planning Commission Meeting April 21, 1993 - Page 3 there was something being done on your parcel that was not permitted which gives an indication to me of character and intent. How you would operate it had you operated a real contractors yard. And I guess I'm real curious. So that tells me I'm not sure you could operate a contractors yard per our permit. So maybe you can tell me why that was not, why you did something that wasn't permitted and why you decided to continue doing that. 1 Jeff Carson: One of us will try to answer either one of your questions. Harry Lindbery: We have ship containers. They're 8 foot wide, 8 foot high and 20 feet long that we rent out to plumbers and electricians and different contractors for storing their supplies and their tools on jobs. Well we did store some right by some trees. It was in the fall of the year and there was leaves on the trees and they weren't visible. Then the leaves come off and we got a letter from the city and I asked the city, should I move them down behind the creek? There was no possible way. The only thing they told me is get them off the property. There's no if's or and's or anything. And well, I disagreed with that and then I contacted Mr. Carson and he talked with them and then later I sold I think 7 of them or something for about half their value just to try to satisfy whichever man was complaining and there's just one there now that we have. It's similar to like a yard shed you have in your backyard and they've got a garden tractor and a lawnmower and it isn't really unsightly. 1 Conrad: But again, the contractors yard we kind of try to understand what's going to take place there and we put it on a piece of paper so we know, so you know and we know what's going to occur and we don't want it escalated. Period. Period. The end of sentence. End of it. We don't want it escalated. Now did you not anticipate that use? Were those to be stored behind an opaque fence? I don't understand why you're doing ' something that you said you weren't going to do. Whether it was screened or whether it was, why did you do that? I guess that's still an open question with me. Jeff Carson: I may be able to respond in part. I can't tell you what he was thinking but I think the use of those units is, in his mind, part of the contractors yard. I'd point to the first requirement in the permit ' itself. That something must be completely screened by berming or landscaping and that's why he, we looked on his property and if you look at the lay of the land, when he put these, and he did do this. Put these units down behind the trees, they were effectively screened. Conrad: Until the leaves fell off. Jeff Carson: No, no. No. This was after that and after it was called to his attention. He took them down and around by the creek and literally they were out of sight. I suggested that that part of the requirement in the permit or of the permit was indeed satisfied. By that time unfortunately criminal charges had already been issued and they're still pending as a matter of fact. But I believe that he actually met the term. ' He was in a place up higher, closer to the road when they were drawn to the city's attention. When he says to you that he asked them about moving them down and around and they said get them off, I think that was in error 1 Planning Commission Meeting April 21, 1993 - Page 4 actually on the city's part. That isn't required. It is part of a contractors operation. He was willing to move them and so that's what II happened. Conrad: I don't know that we've ever let another contractors yard do that. Typically we have them screened with a fence. Typically we don't II tell somebody to take it down the gully so its a little bit different. Jeff Carson: Have you seen the lay of this land? You'd have to drive all to really, because it sounds kind of crazy but if you go down and around, it literally is, there's a woods there and kind of indentation and it is out of sight. Be glad to have you see it there. , Conrad: So it was always his intent to bring these containers onto the site? Jeff Carson: I don't know. I don't know that that ultimately. I don't know in 1988 if that was even contemplated. Harry Lindbery: There will be a need as long as we have needs because II every contractor will tell you that he has a problem with supplies and tools on a job that he needs to lock up. 1 Batzli: Paul do we have, we were not provided with the original Minutes of the Planning Commission during the application process for the conditional use. Is it of record as to what the applicant said was going!' to take place on the site? Krauss: That was the approved plan. ' Batzli: That's the plan but was there a discussion over what actual type of activities would take place on the contractors yard? Al -Jaff: The applicant was supposed to submit a survey showing how many trucks will be on the site. As well as a screening plan, landscaping plan. Actually the contractors yard, conditional use permit is really noll valid unless all of those conditions have been met. I mean they never actually started operating the place. The City never issued a permit for a contractors yard. We have issued a footings permit for the building bull that's about it. And I don't know if that answers your question. Batzli: Okay. Well I may be asking it fairly innocualiy here. Let me try one more time. When Mr. Lindbery came in for the conditional use permit originally to the Planning Commission and probably the Council, there was a discussion over what type of activity would take place on, in the contractors yard. It's been stated in the staff report in several II places that putting these containers and the cement pipes was illegal. I' wondering, I don't remember what this contractors yard was supposed to be for. 1 Ai- -Jaff: There wasn't supposed to be any outdoor storage. They were supposed to have a building. Batzli: So you don't remember or you didn't look at. 1 Planning Commission Meeting 1 April 21, 1993 - Page 5 Al -Jaff: I didn't see anything that allows storage outdoors. Batzli: The first condition says that all outdoor storage will be screened which seems to me to say there's going to be some outdoor storage isn't it? Elliott Knetsch: Mr. Chair? 1 Batzli: Yeah. ' Elliott Knetsch: Maybe I can take a shot at that. I haven't seen those Minutes of the original approval either. What I'd like to say is that this permit does permit any contractor yard activities as they were defined in the Code at that time. And the Code allowed several things. It specifically set those forth. So I believe the permit, I don't know if Mr. Lindbery stated what exact activities he was going to use but the City did approve all uses under the definition of contractors yard. The reason ' that a land /sea containers and the pipe is deemed to be a violation is not that those don't constitute contractor yard activities. The reason they're deemed to be a violation is that he was not supposed to start any contractor activity until he went through this 20 item checklist and ' completed all those things. It was only with these conditions in place that the City felt that it would be okay for him to initiate operation of the contractor yard. 1 Batzli: So the illegal nature of the storage of the containers and the pipe was the fact that he had not completed the 20 conditions and so he ' had not yet really received his validated conditional use permit from the City? Elliott Knetsch: That's correct. And also that they weren't screened properly. You know assuming somehow it did have permission to start, they would have violated condition number 1 for not being properly screened. I think the applicant's point on that issue is, it does permit landscaping ' as screening so that area back on the property down by the creek where all the trees are and not visible from public roads, that may, we may have approved that along with all these other conditions as a landscape ' screening plan but he never came in and submitted that as his plan. Harberts: And as I understand that the Zoning Code has now been changed? Elliott Knetsch: Yes it has. Harberts: And it doesn't allow for this? 1 Al -Jaff: No. ' Harberts: What was the consideration given to when the zoning code was changed as to that particular parcel? I mean did we change it without. Farmakes: Was the zoning changed or is it just a conditional use permit for that application? 1 II Planning Commission Meeting April 21, 1993 - Page 6 II Al -Jaff: Our ordinance does not allow contractors yards in the city anymore. In any of the zones. II Farmakes: No, I mean even currently. It's still agricultural with a conditional use permit, is it not? 1 Al -Jaff: Correct. Well, if this permit is valud, it's a non - conforming use. II Batzli: Is that your question? Whether this would be a non - conforming use? Jeff Carson: I think I can answer that. II Batzli: I need to clarify this. 1 Farmakes: How is the property currently zoned? Al -Jaff: It's an agricultural estate district. II Farmakes: Alright. And what we're arguing about here is a conditional use for that zone right? 1 Al -Jaff: Correct. Farmakes: Okay. That's just how I want to qualify. I thought that was II the question you were asking. Harberts: Yeah. 1 Farmakes: Okay. Batzli: I'm sorry, did you want to? II Jeff Carson: Well I think there might be a misunderstanding. At the tim of the rezoning, now you cannot seek a contractors yard in this zone. So, I sensed that was what you were asking. We can no longer ask for a contractors yard in that zone following rezoning. II Farmakes: As I understand it, the zoning remains the same but the conditional use no longer allows. Jeff Carson: That's it. That's the change. And at the time that they II did that, and we included in our papers some of the comments from the Planning and Zoning, the concern was what about people who are alread in and the assurances were, they're grandfathered. Harberts: Do you have some documentation? Jeff Carson: Of that? II Harberts: Yeah. II 11 1 Planning Commission Meeting April 21, 1993 - Page 7 Jeff Carson: Well, the Planning Commission Minutes which are excerpts from that which are part of our original submission, should be part of your If all of that was included in your packet, they should be there. Batzli: It's Exhibit 11 or something. About halfway through. Jeff Carson: It was clear that the Planning Commissioners at the time ' were concerned about that because nobody showed up at the rezoning hearing or the hearing to, yeah the rezoning hearing. And the idea of notice, the concept that if we publish it, it's enough but no contractors were specifically notified. I beleive the understanding was that because ' they're non - conforming and therefore legal non - conforming uses, we're not affecting them. Batzli: I don't know whether revocation or us coming to the conclusion that we should work with your client is going to hinge on whether they're currently allowed or not so much as whether the applicant has gone forward in a timely manner and worked towards complying with the conditional use permit that was granted 4 years ago, or 5 years ago. You know I don't know. I guess personally, and I don't mean to speak for the other commissioners. I guess my decision on whether to move to revoke or to work with them will matter a hill of beans on whether it's changed in the meantime. Jeff Carson: I see. Batzli: I don't see that as my particular issue in this matter, and you ' know the other commissioners can disagree with me but in any event. Did you have other comments Ladd? Conrad: No. Batzli: Okay. Matt. Ledvina: Well this thing has really taken on a life of it's own. There's been a lot of different discussion as to why the permit isn't valid. If the permit is valid, we should revoke the permit. There's a lot of different twists to know. If I understand our City Attorney, he says the ' permit didn't exist because the conditions weren't met. Is that right? Elliott Knetsch: Well, I guess no. There is a permit. ' Ledvina: Okay, we know that. ' Elliott Knetsch: I mean staff's original position was there is no permit. You don't have to revoke it because it doesn't exist. The Board of Adjustments and Appeals agreed with that but the Council didn't. The Council said, well let's not talk about this lapse in 1 year, no 1 construction and all that. He's got the permit. Let's look at whether it should be revoked for non - compliance with it's terms. So there is a valid permit. 1 Ledvina: Okay, so that's where we're at? 1 1 Planning Commission Meeting April 21, 1993 - Page 8 1 Elliott Knetsch: Right. I think my statement that you were referring toll is simply that he didn't have permission to start operating until you completed these things and he did in fact start operating by storing the containers out there. Ledvina: Okay. Just to get staff's response to a couple of things that were said. The applicants or the CP's holders representative indicated that certain requirements were waived by staff. Is that true? Was there 1 any aspects? Al -Jaff: We're not aware of any. Ledvina: Okay. Nothing was documented? Do you have anything that was documented as far as waiving conditions of the conditional use permit? Jeff Carson: You mean in writing? Ledvina: Right. 1 Jeff Carson: No. Verbal conversations between Mr. Lindbery and staff. Ledvina: And as to the value of the property being reduced to 25% of it'll current use. Is there any comment on that or are you able to make any response? I don't know that it's necessarily germane but. Krauss: We haven't tried to come up with a value. Ledvina: Okay. I read through the City Council Minutes and one of the directions that they were I think trying to take this thing was to allow Mr. Lindbery to gain compliance with the conditions of the Conditional Use Permit. And it doesn't appear that we've done that. First of all I'd like to ask the applicant, has any progress been made in gaining compliance with the conditions of the permit? Harry Lindbery: Your Building Inspector told me that he wouldn't give me 1 a permit to put the heating in the floor and pour the concrete to erect the building. Ledvina: Well, okay aside from the building. The other conditions that 1 are in here. Jeff Carson: Everything has, well there's been, we did in some ways respond to those conditions in the original submission but since the criminal charges were brought last summer, essentially everything has awaited that outcome. Nothing has gone forward. Shortly after that we I got into the issue of void permit versus active permit and so we've been literally, almost for a year now, been under that inquiry. So no. Ledvina: Okay, so nothing has happened at the site. 1 Jeff Carson: No. Ledvina: Since the City Council date or anything like that? 1 1 Planning Commission Meeting April 21, 1993 - Page 9 ' Jeff Carson: No. No. Ledvina: Okay. Has the staff inspected the site recently? Al -Jaffa As of a week ago a Building Official was out there and there was one container on the site. ' Ledvina: Okay. So essentially from that inspection you would conclude that the conditions of the permit are not being met? Okay. This is really a sticky wicket. It's taken a number of different directions here. No further questions. Batzli: Okay, thank you. Joe. Scott: After going through this, it started getting involved in, it looks like dialogues between two attorneys so if you wouldn't mind simplifying because it seems like we have a chicken and egg. It seems like a permit, and stop me at any time. Elliott Knetsch: Sure. ' Scott: I mean have two words out of my mouth and may get stopped here. Basically, it initially was determined that there was no permit because substantial activities were not begun within a certain window of time. The yard was operated as such without "a permit" but the City Council determined that there was a permit? Elliott Knetsch: Yes. That's the short answer. I mean there's, he says he was operating the yard by having those containers on there. That was really the only, you know and I'm sure Mr. Carson will correct me if I'm wrong. I think that's the only activity out there that would even ' remotely constitute use as a contractors yard. Scott: Well is the, and this might be a basic civics question but does ' the City Council have the legal ability to make that determination? To say that in fact is a permit? Elliott Knetsch: Yes. Scott: Okay. So it doesn't matter what has happened up to that point in time, there is a permit legally? ' Elliott Knetsch: Yes. ' Scott: Okay. And now the question is, is based upon the operation. Okay. And that seems to be pretty clear. I don't think that there's a dispute as to what's been going on on the property. 11 Elliott Knetsch: I agree with that. Scott: Alright. No further comments. Harberts: Sounded like questions to me. 1 Planning Commission Meeting April 21, 1993 - Page 10 Farmakes: On the history of the property, a couple questions for staff. Prior to this in 1988, this was ag property and the zone was ag? Al -Jaff: Yes. Farmakes: That hadn't changed. Was the access road existing or was that'll an improvement? Al -Jaff: Existing. Farmakes: Do you agree with the assessment of the applicant to the valuation of the improvements on the property? Krauss: We really don't have a position on that Commissioner Farmakes. The building's not up. We hear that it's stored elsewhere. We don't knoll if the building was purchased and what the value of that was? And we haven't tried to do any kind of an appraisal as to what the value was or is or will be. 1 Farmakes: Okay. I'm looking at the layout of, this is from 1988. Layout of the schematic here with the building pad and so on. What, if any of these improvements have taken place? Any? A1- -Jaff : No, none. Farmakes: None. So this was purchased as ag land at that time? There 1 wasn't an existing contractors yard here? Krauss: Well, there is a footing was put in. If you go out there you call see the concrete and it's been covered up. Our Building Official...has told me that that thing is now valueless because it's basically sat in th ground and heaved over the last 4 or 5 years. Farmakes: Okay. If we're talking about the loss of this permit, conditional use permit and how that would effect the applicant's investment in that property, I guess I would like to know on the issue of 11 hardship whether or not those numbers are correct. From what I'm hearing on one side, there really hasn't been much of an investment versus what II the property was originally purchased for. As ag property. If the applicant had to sell it again, it would seem to me he'd be selling it at the same use that he bought prior to any improvements. This building apparently is stored elsewhere. It's somewhere else? Jeff Carson: Correct. Farmakes: Is there anything about that building that makes it only 1 useable for this property? Jeff Carson: No. No, not at all but you would not be selling the II property for the same price because the only reason it was purchased was so that, for a contractors yard. Farmakes: Okay, but that's his conditional use permit. But the zoning oll 1 II Planning Commission Meeting I April 21, 1993 - Page 11 I the property if he sold it to someone else would still remain as ag, correct? Al -Jaff: Correct. I Farmakes: That would not be transferred. That use would not be transferred with that sale. 1 Jeff Carson: Well yes. A conditional use permit, if it's still on the property would transfer. 1 Farmakes: If it was found to be valid. Jeff Carson: Sure. 1 Farmakes: So what he's hanging on here is that this particular piece of property is more valuable because he has a conditional use permit? 1 Jeff Carson: Absolutely. And it's significantly more valuable because. Farmakes: Well is this the only improvement that he has that, or would I you, the other things that you listed as his investment in the property, do you agree that there's been minimal improvement in the property? Or do you disagree with that? I Jeff Carson: I would say, you mean in improvements to the property? I Farmakes: Correct. Jeff Carson: I guess I would agree they're minimal. The footings are in. He has improved an access road down to the place of construction and has I crossed the creek and put culverts under the creek to get to the property. So there's been some road improvement. The footings. He's purchased other things that are not on site for the project. Including $8,000.00. 1 Farmakes: Are these properties that cannot be used elsewhere? I Jeff Carson: No. Farmakes: Or are these just for that site? Okay, so then it was site specific to this particular piece of property? 1 Jeff Carson: Correct. I Farmakes: You know it seems to be the month for old commitments going back several years and I guess my position on that is, it seems to me that what we're arguing here is the value of that conditional use permit if he I had to resale the property. Correct me if I'm wrong. Batzli: Well, I don't even see that as an issue in my mind. I Farmakes: I was talking about a hardship issue. If something is. II Planning Commission Meeting April 21, 1993 - Page 12 ' Batzli: If we would decide that he had not fulfilled any of the conditions and so it was appropriate to revoke, I don't even know if it's' appropriate for us to consider his financial hardship as some sort of variance to our decision. Farmakes: He didn't purchase the property with that conditional use in mind. In other words, he didn't pay a premium for that property because. Harry Lindbery: Yes I did. ' Farmakes: You did? Jeff Carson: He would not have purchased it had he not thought he could have, had he not had the right to apply for an receive a contractors yard by conditional use permit. ' Farmakes: Okay, but the person that he purchased the property from, did that person charge you additional dollars than they would otherwise for I that property use? For that conditional use? Jeff Carson: Well, it was worth more because you could obtain a 1 contractors yard by conditional use permit on it. Farmakes: At that time, couldn't you obtain a conditional use on any piece of ag property? 1 Jeff Carson: Sure. Well I don't know. I can't say sure. I think so. But it had a significantly higher value because of that. In other words,' we don't have an appraisal. The person with the best opinion about, I think, about the value, if you are willing to consider the loss of the economic situation, is the owner. And he believes that it's worth about 25% of the original purchase price without the ability to use it as a contractors yard. Pure farmland in other words. Krauss: There's a lot of focus on the value...of this thing and frankly II it didn't occur to us to provide you any information on it because we saw it didn't matter. Farmakes: I can understand that argument. 1 Krauss: The only place any kind of a hardship is spoken to in the ordinance has to do with variances and not whether or not a CUP is still I valid. In that case it says financial hardship is not to be considered. So it really wasn't something that we threw into the mix. It's just whether or not it complied. What's there today. How's the property been' managed. And we made our recommendation based on that. Farmakes: Okay. No more questions. Batzli: Okay. There's an inspection report, which is attached. Is one of the items by Mr. Lindbery's attorney I believe. And the corrections indicated that a floorplan, plumbing plan, HVAC plans, sprinkler plan, hail to be complied with and to set up a meeting with Planning and Building Departments back in 1990. Was it at this time that it's your recollection Planning Commission Meeting April 21, 1993 - Page 13 that the Building Inspector told you that you couldn't put up the building because of this infloor heating system? Harry Lindbery: Well I told him that I wanted to put radiant heat in the floor and then put drainlines for floor drains and he and that way where the pilasters where the beams carry, we would rerod it into the concrete floor. That's the reason the engineer on the building recommended that way and your staff, they just said put.unit heaters in it You don't need floor heating, radiant heating. And then they said definitely they wouldn't give me a permit for radiant heat. And then on the floor drains, the state requires to have a flammable waste in the building in case there's an accident and you spill something. It goes into this large tank before it goes out into a drainfield. Well, we put it in. Then I had Prairie Plumbing going to connect the pipes. We asked them for that and he says, oh no. You can't have that in the building. You have to put it outside. So I took and sent a backhoe out there. We removed it from inside the building. We put it on the outside. We got a concrete saw to ' saw through the solid concrete wall and then after we installed it on the outside we says well, can we connect the pipes now? He says, no. Now you've got to go to,the State and get the okay from them. We went down to the State. The State man he looked at it and he said., whoever that ' Building Inspector, he isn't familiar with our winters. He says you have to put that inside the building. So I put it inside the building, back again where I had it to start with. And then they wouldn't let me hook 1 the pipes up, put my rerod in to pour the concrete. Jeff Carson: What period of time was this Harry? ' Harry Lindbery: I think this was, I think it was in '91. Jeff Carson: I think that was the original... i Batzli: Yeah. So did you ever submit a written plan for your HVAC or plumbing or sprinkler or? Harry Lindbery: Oh yes. Sure. You people have it. You have the sprinkling system. The whole thing. ' Batzli: And we had, as far as this stuff that goes in the floor, the radiant heat from the floor that was, as part of your plan and was that ever officially denied or is there some? ' Harry Lindbery: Well, your man was out there to look at our flammable waste. Are you familiar with the flammable waste? ' Batzli: No. Harry Lindbery: Well any garage or anything where you'd have either ' gasoline or deisel fuel. We don't have any gasoline vehicles. It's just deisels. But say if one had bumped the other and he had ruptured a tank and it spill on the floor, it would go into this flammable waste and ' there's a vent out in the air. That way in this tank will hold 500 gallons and any vehicle wouldn't hold much over about 100 -150 so it's 1 1 Planning Commission Meeting April 21, 1993 - Page 14 sufficiently large enough. And the State requires you to have it inside I the building. Batzli: Okay. But other than that, I mean this is all, maybe I didn't read that part. I didn't even see that in your attorney's stuff, or II maybe I glossed over it. The radiant heat issue, when you put it on the plan, normally you get something back from the city that's stamped. It says, you know it's approved or approved except you've got to do this, this, this and this. And the City never gave something like that back to you? Harry Lindbery: No. The man was just on the job and he says, radiant II heat is no good. Put unit heaters in the end of the buildings. And if you were working a on cold concrete floor, if you had nice warm water running through there, it's much more comfortable than if you've got a unit heater. Batzli: But again I guess, you don't have any of this in writing. It's II all your recollection that this is kind of how. Harry Lindbery: We gave him a copy of the diagram. How it would go back and forth and everything and the spacing. And Roberts - Hamilton is the distributor for a Weirsbo Company. That's the one that made the tubing and their engineer laid it all out. Batzli: Between when you were working with the, going back and forth between the city and our staff allegedly, I'll throw it in there for whatever it's worth. Did anything happen to the building during that timeframe? Harry Lindbery: I have it in Hopkins waiting so I can put the heat in th floor, pour the concrete and erect it. Batzli: But what did you do for the next 2 years after apparently our, or supposedly our Building Inspector said either you want radiant heat or yoll can't put it in. Harry Lindbery: I rented a building in Hopkins. Batzli: Okay, but you didn't do anything to this site? Harry Lindbery: Well we put the access road in. We put the culvert so will can, that's how we can cross the creek to get the cement trucks into put the foundation in and we done a little bit of grading down there. Batzli: But didn't you do that before the Inspector was out telling 1 you... Harry Lindbery: Oh yeah, yeah. That was done before but that was it. 1 Batzli: So between October of 1990 when this inspection report is dated and the criminal complaint was filed last summer, did anything go on on II site? I mean that was nearly 2 years time. Did you do anything on the site during that time period? 11 1 Planning Commission Meeting April 21, 1993 - Page 15 Harry Lindbery: Well, we cleaned up behind. When we had a little spare ' time we cleaned up behind because that farmer left it in a terrible mess and we hauled out several truckloads of trash. 1 Batzli: Did you work with the City at all during that time period? Harry Lindbery: The man just said we couldn't put it up and well, I ' wasn't too much of a fighter. I just kind of let time ride some. And he tells me I should have come down and pounded on the desk and say, why and go to somebody else that didn't mind radiant heat. I know when we were here before your Mayor said that he had it in his house and he liked it. Jeff Carson: There was a year's period when he was actually physically unable to do anything. One of those years is accounted for in that way... He crushed his leg. Harry Lindbery: Yeah, 1 did have an accident and I was laid up for about 12-13 months. Batzli: So you personally couldn't do anything. ' Harry Lindbery: No. But if they would have gave us the okay I would have had a crew out there putting it up. Batzli: But you had a crew that could have been working while you were laid up potentially I guess. Harry Lindbery: Oh yeah. No, we've got boom trucks and so forth. ' Batzli: Okay. Paul. ' Krauss: This is all quite interesting but it doesn't jive with any of the things that we've been hearing from the Inspection Department. They did have a meeting with them in 1990. The Inspections Department as a matter ' of routine issues an inspection report anytime they go out on a site and tells people what they have to change. I mean it's just routine for these guys. They're all licensed inspectors. We only have one of those reports around here and it's dated October 22, 1990 and it says you've got to 1 submit plans. Batzli: Well he's just told us that he submitted plans and we have them. ' You're telling me we have nothing in his file? Al -Jaff : No. I went through the file. 1 Harry Lindbery: Prairie Plumbing is the one that. Krauss: We're not going to argue the point. We haven't seen them and we've asked the Building Inspectors about them and they don't have them. And there is nothing currently, there is nothing current that's happened. This was in 1990. ' Batzli: Okay. As far as revocation. If we were to go with revocation, what is our standard that we're looking at and what should we base it on? 1 Planning Commission Meeting April 21, 1993 - Page 16 1 Elliott Knetsch: It would be based on whether or not he's in violation oll the terms of the permit. And you have those 20 items in the permit. Ledvina: I look at the ordinance and it says, any condition of the permit. Batzli: Shall be, shall constitute sufficient cause for revocation of the conditional use permit by the City Council following a public hearing. And I assume we're acting as the public hearing? Elliott Knetsch: The City Council will also hold a public hearing. Batzli: Okay. Well, I guess it's very difficult to envision how this has dragged on and I appreciate the fact that he didn't want to fight it. Obviously he's fighting it now. Without some evidence, you know and what this could be is obviously if he can go to the heating and plumbing peopl that prepared the plans for him and demonstrate that they sent them to the city, to show that the city's file is in error, then I guess I'd be, I'd II look at some of this stuff. But what I hear is a lot of remembrances and we have absolutely no documentation to substantiate a lot of this and so I feel uncomfortable doing anything personally other than saying he has not complied with the conditions and I don't believe that the financial hardship is appropriate to look at to determine compliance with the conditional use permit because for heavens sake, everytime we looked at revoking one, it would always be a financial hardship and in many instances it would be a much bigger hardship because they may have invested buildings, pavements. They would have done all, complied with 19 of these things. And I don't see compliance with, if you squint, more than a couple. So I would like to, if the applicant, if he has some evidence, if he can go to the plumbing and heating people. If he can get the person at the State to say yeah, he called me. I said, Kirchman didn't know what he was talking about. You know, but we don't have any o those things and I guess what I would do is I'd put the burden back on th applicant and his attorney to come up with some evidence that shows that the City's files are in error. Jeff Carson: Mr. Chairman? Batzli: Yes. 1 Jeff Carson: I do appreciate what you're saying and I would appreciate a opportunity to do just that. As I stand here right now I don't have what you're seeking and if you would hold this open perhaps, I don't mean toda or tomorrow, but to another hearing or continue it to another, continue the public hearing to another date, I think it's only fair that if we can produce that information, that you would receive it and frankly it's quit reasonable of you to demand it. Mr. Lindbery tells me that he ought to be able to recreate this and I think that's a reasonable request. ' Batzli: That would at least be helpful to me to see that some of these things occurred and that perhaps it was more than just his diligence, non - diligence. That the city somehow was giving him some either misinformatioll or that some of these things occurred. That would be helpful to my decision. I don't know if it would be helpful to the other. 1 Planning Commission Meeting April 21, 1993 - Page 17 Harry Lindbery: We did have two copies of that. The plumber had one and ' we gave your staff one of how the lines would run and how the drains and the heat went. ' Batzli: Having gone through the permit process here at the city personally, I know what you get back. ' Harry Lindbery: We gave them to the plumber. Batzli: I understand that but then you should be able to go to the plumber and you should be able to have some of this documentation. Right I/ now I, you tell me this and I hear someone else telling me something different and they go and they look in the file and there's nothing there and so I weigh this. I'd like to entertain a motion now and if other commissioners feel that this would be helpful in making a decision, I think we should table it. Allow him to gather up some additional evidence. If it wouldn't be helpful, then maybe you should move with the staff recommendation. Allow him to gather the information before the City Council meeting where apparently there will be a further public hearing. Farmakes: I have just a question in regards to that. Would that negate, let's say he came forward with heating plans for the floor. Would that then negate the other non - compliances with the conditional use permit? ' Batzli: I don't know. I don't know. I hope he comes with more than just a letter from the plumbing people saying, you know a letter addressed to the city saying here's a plan. But I'm saying that if there is additional evidence that he wants to submit, he should do it. You know because right ' now we don't have a lot. It's just kind of yes he did, no he didn't and there's nothing in our file which would show that he did and I'm suggesting, if he really did it and you had these other people involved in ' the process, for crying out loud you should have some letters or correspondence or plans or copies or something and I don't see any of that. So I guess I'm just saying, I'm trying to give them one more shot ' because my feeling right now is that, if this isn't going to make a difference, or if you just want to let him gather it up and present it to the Council, then we should probably move it along. But if presenting some of that evidence may have an impact on the way you vote tonight, ' then I think we should table it, so. Scott: I'm looking at a letter dated October 2, 1992 from Campbell- ' Knutson with a carbon copy to Jeffrey A. Carson and it basically spells out that there is a problem with the permit and I mean that's a heck of a lot of time and in order to answer the claims made by the City of Chanhassen, I mean that's, in my mind I think that was ample time to come up with the plumbing plans and any other documentation that the City of Chanhassen either had never received or got it and lost. I personally have enough information on this particular item to go along with the staff's report, recommendation of revocation and then have this item presented to the City Council. Now inbetween those two dates if any documentation can be brought forward on behalf of your client, I would suggest that it be brought forward. II Planning Commission Meeting April 21, 1993 - Page 18 1 Jeff Carson: I appreciate that Mr. Scott. My druthers would be, if we can produce the documentation that is being referenced, to bring it back here simply because of the function of the public hearing process followe by a recommendation followed by action at the City Council level. All to often I'm afraid if the recommendation is, from this body up to the City Council for revocation, the argument could be made we lose the opportunit to present new information. Or they won't be interested in it and sometimes, if they are interested in it, they'll shoot it back to Plannin. and Zoning if they're not sure. So it would be my suggestion, and I apologize for my voice. It's not normal whatever it is I've got. Batzli: You mean tonight or always? Jeff Carson: Good point. I opened that door. My druthers would be to bring whatever information we can bring back to this body. If you would II permit it. And I suggest that there's a slight inconvenience but given the length of time that we've dealt with, or have not dealt with the issue, a 30 day delay or approximately, whenever you'd have your next public hearing, I think we're procedurally and logistically, on behalf of" the applicant we're better off coming back to this body. If it doesn't persuade this body, we're in more trouble at the Council to be sure. But ' I guess I'd like my first opportunity here. Batzli: Paul, is there a disadvantage from the standpoint of, is there something being done on the site that needs immediate attention? Basically they've said nothing has happened out there since last summer sil from our perspective, does 30 days hurt us? Krauss: From that perspective, 30 days does not hurt us. There's nothini emminent or pressing that we're aware of that needs to be stopped. On the other hand, this is the third public hearing this thing has had. There , are nuances among nuances among nuances here. It's going to be your choice. I guess I fail to see what bearing something that may or may not have happened 3 years ago has on what's been happening out there in the last few years. I don't know if there's an implication that these documents were delivered to the Building Inspectors and they ditched them' intentionally? Or by accident. In any case, you can always pick up the phone and see where they are. If there was a true need to more forward, assume the issue would have been pressed. There's no knowledge of it being pressed. It would be a month delay in all likelihood. If you want to hold it over, Sharmin will be out of town at the next Planning Commission meeting. Possibly Elliott and we could have Steve Kirchman here and if that's satisfactory, maybe they can handle it. I leave it up to you but it's not uncommon for the Planning Commission to recommend something to the City Council along with some assumptions that additional ' materials be presented if they in fact exist. Batzli: Okay. Ladd, did you have? Conrad: Yeah, and I'm going to ask the applicant. I think if there's on item, I'd be real tempted to play this one out but I play this scenario through things that weren't done yet the site being used. That bothers II me. It's not that sprinklers weren't put in to a building that wasn't constructed. That doesn't bother me at all. But what bothers me is where 1 Planning Commission Meeting ' April 21. 1993 - Page 19 ' we asked for screening and the site was used and there was no screening. It bothers me that we asked for a bituminous driveway. We didn't get one but the site was used. It bothers me that we asked for erosion control plan and we didn't get one. It bothers me that we asked for a vehicle ' list and we didn't get one. They're all things that we should have before the site is used. So I'm not sure that what we're saying, if you brought it back and said here are the plans, I'm not sure that in itself is going ' to outweigh all these other things that go hand in hand with use of the property. Its pretty, in my mind it's pretty solid evidence that it wasn't used according to how it was designed to be used. And therefore, again we, the contractors yard, we put specific parameters on that because ' it's an exemption. And in this case I don't think many things were followed properly and my druthers would be to revoke it immediately and if it was still permitted. You know I would really want to take a look at what's used. What the plans were for this property. I would never, based on the information that I have right now, I don't know what's going on here. And that kind of bothers me. I would never allow a use to occur ' without understanding more than we do right now. So I could never allow this permit to go through, period. Because I don't know enough. Whether it be documentation that we've been given. For whatever reason, I'd be real uncomfortable. So again Mr. Chairman, right now I think we could follow a process and let the applicant go back and present some more information to us. Yet the list that I just read, those things were not done so what you'd be bringing back would only be a small part of what I ' think is a bigger picture and it's a bigger picture of not following what was stated was going to happen. And that's what's really important in contractors yards. It really is. You've got to do what we say in those things because that's what we're trying to put those things under control. And it's out of control. Jeff Carson: I understand your concerns. I don't have a great ' disagreement with much of what you said. I think that the applicant did not understand it correctly. I think he was using the yard. Nobody told him that he couldn't. Possibly nobody knew what he was doing and nobody ' corrected him. There's a lot of misinformation on the part of the applicant. Misunderstanding on the part of the applicant. I submit that most of the items that are not checked off yet on the permit can and will ' be done. He has said, we have said that the installation of the building comes first or before most of these things. And we discussed with the Council at the last meeting timing and performance and all of those things. It's very clear that Mr. Lindbery understands the concerns cf the ' City at this moment. I submit that he didn't fully understand it and there's no sense in trying to prove or disprove that. I think it's just what happened. I also think that the City laxed a little bit until they ' started looking directly at these storage containers. Otherwise we might not know. there might not be any activity yet one way or the other and so there's a little bit of blame on both sides I suspect. If you're willing to permit him to conduct the yard, strict and specific...there's no question how that is to work now. But I don't disagree with much of what you're saying. ' Ledvina: I'd like to make a motion. Batzli: Okay. Planning Commission Meeting April 21, 1993 - Page 20 i Ledvina: I move that the Planning Commission recommend revocation of I Conditional Use Permit #88 -11 based on non - compliance of the conditions, and I don't know if I should go through these but I'll just briefly mention a condition 1, 6, 7, 15, 16, and 18. Jeff Carson: Would you list those again please. Ledvina: 1, 6, 7, 15, 16 and 18. i Jeff Carson: Thank you. Batzli: Is there a second? i Scott: Second. Batzli: Is there any discussion? i Jeff Carson: Can I have a question? i Scott: Can I ask a question? Batzli: Yes you may. i Scott: When will Sharmin or when this will come up at the City Council? Al -Jaffa It would be 2 weeks, it would be the end of this month. End of" next month, I'm sorry. Jeff Carson: March 10th. i Scott: May? Krauss: March 10th. Ah May. Scott: May 10th. Okay. Batzli: Mr. Carson, did you have a question? Jeff Carson: Well I understand the motion. I'm wondering if there is i still an opportunity to present information? Batzli: There will be, I understand a public hearing for this at City Council at which time you would be allowed to present additional information. Jeff Carson: Alright, thank you. i Conrad: They're very open about any information that they haven't received. Scott: And I think that's the reason why I support the revocation in that it's something finite and then the City Council will be making the final II decision but that gives you a couple of weeks to come up with any necessary documentation that perhaps you should have been working on in i 1 Planning Commission Meeting 11 April 21, 1993 - Page 21 ' October of '92. But be that as it may, a couple more weeks. Jeff Carson: Understood. All I would ask is that whatever gets forwarded to the City Council, that there be some acknowledgement of that fact. Scott: All they're going to get from us is that we voted perhaps on revocation and it's up to them to make a decision. It can be a completely 11 new thing but. Batzli: I would like to, I don't know whether we would need to formalize ' it but I think what our understanding is that at least we're forwarding this recommendation of revocation to the City Council with the understanding that the applicant will be allowed to present any additional evidence. Ledvina: Right. Scott: And that's true with any recommendation we make. Jeff Carson: That's what I'm asking. I just want, I don't want the City Council to look at me like I'm talking Greek when I say, we have some additional information that was discussed at the Planning and Zoning. Scott: The current Council has already, all the current Council members have already seen this action once before so they're familiar with it. Jeff Carson: Yeah, but it was in a difference context then though. ' Batzli: Well I think the record clearly shows that all of our understanding is that you would be allowed to present and they would get a verbatim transcript. ' Jeff Carson: I appreciate that. Al -Jaff: Would we be able to review this before the meeting? Krauss: Well we need to have these materials submitted to us by April 28th if we're going to review them and get them into that packet. Batzli: April 28th? Scott: That's a week. Jeff Carson: That's why I suggested that we come back to this body. I mean that's maybe possible, maybe it isn't. I don't know. Batzli: Can this be put on the Council meeting after the 10th? Krauss: Sure. Second meeting in May. That would be possible. Batzli: That would at least give the applicant a little bit more time. Al -Jaff: 24th of May. 1 Planning Commission Meeting April 21, 1993 - Page 22 Jeff Carson: Is that a Wednesday? Al -Jaff: Monday. Jeff Carson: Fourth Monday? 1 Al -Jaff: The fourth Monday of the month. Krauss: For that we need the material submitted to us by no later than 11 May 14th. Jeff Carson: Alright. 1 Batzli: I guess I personally would like to see it come back here but it sounds like other people want to see it moved along. So is there any other discussion? Harberts: I'll just throw a comment in while you're thinking about it Ladd. Conrad: Please. Fill in the gap. Harberts: My earlier reasons for passing basically it's, I find it of interest that there's no middle ground. In reading the Minutes from the Council it seems that's what their desire is. I don't know all of the information. I don't feel I know all the information. I don't know if III want to know all the information. I guess I just find it surprising that there's not a middle ground here and there's probably reasons why you can't find a middle ground. I don't know. So I guess if there's any opportunity for working things out. Batzli: A middle ground might be something on the order of comply with I conditions 1, 5, 6, 14, 15, 18 by May 28th. And you know get a set of plans in here that shows exactly where the heating, whatever so our people can look at it because they say they've never seen one. And do these things by a given date and if you don't do that, then we'll revoke it. And if you do it and you move forward on it and you do what you said you were going to do 5 years ago within a very quick timeframe, I mean that's ' the middle ground it seems to me. Harberts: But are we creating some expectations on the part of the applicant though that may not be right? Conrad: Boy, Mr. Chairman I would be real uncomfortable if the City Cou'icil passed, approved of this permit without us finding out more what' taking place and what's expected to take place. I still don't know what the applicant has in mind on this parcel. So before when I was humming, that's kind of the idea I would feel, whatever they do. If they revoke it, then I guess it puts an end temporarily unless it goes to Court but they have a notion to find a middle ground, we're not there. We don't have a contractors yard permit in front of me that I would feel real comfortable with know other, we've got a design but I tell you, in recent!' years, in recent years we find out what's taking place, why it's taking place. 1 Planning Commission Meeting ' April 21, 1993 - Page 23 Jeff Carson: And when. Conrad: We don't have any idea what's, I don't have any idea. ' Jeff Carson: That's why I would prefer it to come back to you. If you were to say to this applicant, you bring all your bells and all your whistles and all your plans and everything back to this body in 30 days. and I mean everything, then you'd have something to look at. Conrad: And I'm going to say, I'd rather have City Council tell me to do that. If they say, let's take a look at it, we will. And I'll just be real frank, and I think I was in the very beginning. When somebody doesn't live up to something, I have a real tough time going along with a permitting process and in my mind right now., the applicant has maybe some ' reason for not performing but in general when you use something and you do something outside of what was really originally intended. I take that as a personal affront to the city of the Chanhassen residents and I have a ' tough time being liberal and forgiving because the permit was the permit. Right now the applicant would really have to persuade me that he would be a good neighbor and he hasn't at this point in time. And that's what we were looking for from contractors yards. We're looking for, they're an exception and we want that exception to fit in so that it doesn't bother the neighbors. Where it's an industrial use in a different area and we want that to fit in and so far nothing has persuaded me that the applicant has tried to make it fit in. End of speech. But my point was, I would, if the City Council has any thoughts of maintaining this permit, we really need a better understanding of what's going on in this parcel. ' Ledvina: Well they can send it back to us with what they want. Conrad: That's why I made the point 3 times... Farmakes: Nobody's disagreed with you so far. Batzli: Okay. Is there any other discussion? Ledvina moved, Scott seconded that the Planning Commission recommend revocation of Conditional Use Permit #88 -11 based on non - compliance of the conditions, and specifically conditions 1, 6, 7, 15, 16, and 18. All voted in favor except Batzli who opposed and the motion carried with a vote of 5 to 1. ' Batzli: My negative vote is not necessarily that I disagree with the recommendation to revoke but rather that I would rather give the applicant ' an opportunity to bring it back here and present additional evidence before taking it to City Council. The motion carries 5 to 1 there and it will be on the City Council meeting for the 24th. Thank you very much for coming in. Jeff Carson: Thank you. 1 CAMPBELL, KNUTSON, SCOTT & FUCHS, PA. Attorneys at Law 1 Thoma, J Campbell (612) 452 -5000 Roger N Knutson _ Fax (612) 452 -5550 Thomas M Scott Gary G Fuchs James R. Walston Elliott B. Knetsch Michael A. Brohack Renae D. Steiner January 13, 1993 ` 1 Attorney Jeff Carson CARSON & CLELLAND Brookdale Corporate Center Suite 305 6300 Shinglecreek Parkway Minneapolis, MN 55430 Re: Your Client: Harry Lindbery Chanhassen Conditional Use Permit 88 -11 Dear Mr. Carson: 1 We represent the City of Chanhassen. We have been instructed to notify Mr. Lindbery that the City Planning Director Paul Krauss has made a determination regarding the above referenced conditional use permit. The determination is as follows: 1 1. CUP 88 -11 is void. City Code Section 20 -236 provides as follows: 1 "If substantial construction has not taken place within one (1) year of the date on which the conditional use permit was granted, the permit is void except that, on application, the Council, after receiving recommendation from the Planning • Commission, may extend the permit for such additional period as it deems appropriate." Mr. Lindbery installed concrete footings in 1989. Since that date, no further construction has taken place. Mr. Lindbery has not made an application for an extension. Therefore, it is the City's determination that CUP 88 -11 is void. 2. In the alternative, the conditional use was discontinued for six (6) months so the permit is void. City Code Section 20 -236 states as follows: RECEIVED "If the conditional use is discontinued for six (6) months, the conditional use permit shall become voidaN3 � ►1j. OF CH Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, N 55121 AIVh SttV 1 Attorney Jeff Carson January 13, 1993 Page 2 II I This section shall apply to conditional use permits issued prior to February 19, 1987, but the six (6) month period shall not be deemed to commence until II February 19, 1987." Mr. Lindbery has not conducted any contractor's yard 1 activities on the subject property at any time, other than illegal storage of containers and concrete pipes. Therefore, the conditional use permit is void. City Code Section 20 -236 does apply to any permit issued after the effective date of that II section, which was December 15, 1986. The reference to February 19, 1987 allows a grace period for permits issued prior to February 19, 1987. It does not have the effect of limiting II section 20 -236 to permits issued prior to February 19, 1987. 3. The time to extend the permit has expired. City Code I Section 20 -236 allows a person to file an application to extend a conditional use permit. Mr. Lindbery's permit was issued September 12, 1988. Mr. Lindbery had until September 11, 1989 to file for an extension. Mr. Lindbery did not file an extension II within the time specified by the ordinance. Therefore, the City Council has no power to grant an extension at this time. If your client is aggrieved by this determination, he may file an appeal with the Board of Adjustments and Appeals pursuant to City Code Section 20- 28(b)(1) (copy enclosed). II Your client also has the option of meeting with City staff prior to the hearing with the Board of Adjustments and Appeals. You may contact Sharmin Al -Jaff or Paul Krauss directly at II (612) 937 -1900 to arrange the meeting. You previously indicated to me that you wanted an opportunity to review the City's file on this matter. I do not object to this request provided I am given I notice of when you will review the file. Please call if you have any questions or comments. II CAMPBELL, KNUTSON, SCOTT & FUCHS A. fir II By : ... II Ii. Elliott B. Kn=• ■ EBK:mlw II Enclosure cc: Don Ashworth Paul Krauss II Sharmin Al -Jaff 11 CITY OF CHANHASSEN CARVE'. ..AD HENNEPIN COUNTIES, MIA _-JOTA CONDITIONAL USE PERMIT 1. Permit. Subject to the terms and conditions set forth herein, the City of Chanhassen hereby grants a conditional ' use permit for: Contractor's yard activities 2. Property. The permit is for the following described 1 property in the City of Chanhassen, Carver County, Minnesota: That part of the East Half of the Southeast Quarter of Section 34, Township 116 North, Range 23 West of the 5th Principal Meridian which lies northerly of the center line of U. S. Highway No. 212 and southerly of the southerly line of Chicago North Western Railway Company. Subject to an easement for Highway No. 212 over and across the , southerly 50.00 feet thereof. 3. Conditions. The permit is issued subject to the 1 following conditions: See attached Exhibit A. 4. Termination of Permit. The City may revoke the permit following a public hearing under any of the following circumstances: material change of condition of the neighborhood where the use is located; violation of the terms of the permit. ' 5. Criminal Penalty. Violation of the terms of this conditional use permit is a criminal misdemeanor. 1 ,;7 Dated: September 12, 1988 t' CITY s .ANHASSEN .. • By: .42%.6 It:! Ma • • J T By: 1111 411. 7044 Y' ! • Its Clerk STATE OF MINNESOTA) ss COUNTY OF CARVER ) The f regoing instrument was acknowledged before me this 0 day of , 198g, by Thomas L. Hamilton, Mayor, and D n shworth, City Manager of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation. ,� T N.tary P•l / � / 1 r. �`�.... '1-TA y 1 � / My csr..�s;.cne , 1 -13-91 . EXHIBIT A 1. All outdoor storage areas must be completely screened by 100% opaque fencing, berming or landscaping. A proposed screening plan shall be submitted prior to issuance of a building permit. 2. Hours of operation shall be from 7:00 a.m. to 6:00 p.m. Monday through Saturday. Work on Sundays and holidays is not permitted. 3. Light sources shall be shielded. 4. No outside speaker systems are allowed. 5. Compliance with the conditions of MnDOT including installation of a right turn lane and a left turn lane if required by MnDOT. 6. Installation of bituminous driveways, parking areas and loading areas. 7. Compliance with the conditions of Resource Engineering as written ' in their memo dated August 9, 1988. 8. Protection of the two septic system sites during construction. ' 9. Installation of a holding tank. 10. The building must be sprinklered. 11. Provision of one handicap parking space. ' 12. Contractor's yard activities only as defined in the zoning ordi- nance, are permitted. There shall be no shipping or other non - contractor's yard activities. 13. The applicant shall obtain and comply with all conditions of the permits from the Department of Natural Resources and the Watershed District permits. 14. All the existing buildings shall be trucked off -site and disposed of properly. ' 15. The erosion control plan shall be revised to include check dams at 100 -foot intervals in all proposed drainage swales. 16. The plans shall be revised to include erosion control measures for the proposed construction within the immediate area of Bluff Creek. 17. The pond outfall shall be revised to include a submerged outlet detail in place of the wooden skimmer. 18. Submission of a vehicle inventory list. 1 19. No heavy equipment or machinery shall be operating between 6:00 p.m. through 7:00 a.m. 20. No shipping activities shall originate on site. i 1 CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. Attorney at La%\ Thuma >) C:amt hell (612) 452-5000 R er N Knutson Fax (612) 452 -5550 Thomas \l S t • Gar U Fuchs fames R. \Valston Elliott R. Knetsch Michael A Rrohack Renac D Steiner October 29, 1992 Mr. Scott Harr Chanhassen City Hall 690 Coulter Drive P.O. Box 147 :2(:) 12) r Chanhassen, MN 55317 Re: Harry Lindberry , Dear Scott: Enclosed please find a formal complaint against Harry Lindberry. Please take the complaint to Carver County District Court and sign it in the presence of a judge. After it is signed by the Court, please file it with the Clerk of Court Criminal Division. CAMPBELL, KNUTSON, SCOTT ' & FUCHS, P.A. By: 1 Elliott B.tsch EBK:mlw ' cc: Sharmin Al -Jaff (w /enc. and 10/2/92 letter to Lindberry) Enclosure RECEIVED OCT 3 0 1992 1 CITY Or t;nr+tvr-i /bSEN 1 Suite 317 • EailanJale Office Center • 1380 Corporate Center Cur\ e • Ea,an, \1\ 551'1 l 1 I. CAMPBELL, KNUTSON SCOTT & FUCHS, PA. 1 Attorneys at LZ1W Thomas J Camphell (612) 452 -5000 Roger N Knutson Fax (612) 452 -5550 I Thomas M Scott Gary G Fuchs James R. Walston Elliott B. Knetsch October 2, 1992 Michael A. Brohack Renae D. Steiner ppy \ N 1; 1 Mr. Harry Lindberg 6901 Maloney Avenue 1 Minnetonka, MN 55343 Re: City of Chanhassen Conditional Use Permit 88 -11 II Dear Mr. Lindberg: We represent the City of We have been instructed I - by the City Planning Department to notify you that the Conditional Use Permit referenced above has expired because substantial construction has not taken place within one year of the date on which the Conditional Use Permit was granted. 1 You are hereby notified that the outdoor storage taking place on your property located at 1700 Flying Cloud Drive is not 1 permitted under the City's Zoning Ordinance. The seven land /sea containers and ten round concrete pipes must be removed within ten days of the date of this letter. II Enclosed is a copy of Chanhassen City Code Article 4, r Conditional Uses. • II Yo u are hereby notified that violation of the Chanhassen You Ordinance constitutes a criminal misdemeanor. Each day the violation continues to exist constitutes a separate offense. A I criminal misdemeanor is punishable by ninety days in jail and a $700.00 fine. I Very truly yours, CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. 1 If ._..IAA II Elliott B.? etsch EBK:mlw Enclosure 1 cc: Attorney Jeffrey A. Carson II Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121 1 STATE OF MINNESOTA DISTRICT COURT ' COUNTY OF CARVER CRIMINAL DIVISION FILE NO. STATE OF MINNESOTA (City of Chanhassen) Plaintiff, COMPLAINT - SUMMONS vs. FOR MISDEMEANOR OR PETTY MISDEMEANOR HARRY LINDBERRY Defendant, DOB: 6901 Maloney Avenue Minnetonka, MN 55343 COMPLAINT CO C • Scott Harr being duly sworn makes complaint to th above - named Court and says that he /she. believes this information and other persons" from whom it is obtained to be reliable and that there is probable cause to ' believe that the above -named Defendant committed the offense described below. The complainant states that the following facts establish probable II cause: Your complainant is Scott Harr, Public Safety Director for the City of Chanhassen. In that capacity I have reviewed City records, files and inspection reports and believe the following facts to be true. The defendant, HARRY LINDBERY, is the owner of certain real , property located at 1700 Flying Cloud Drive in the City of Chanhassen, County of Carver, State of Minnesota (Subject Property), legally described as follows: That part of the East Half of the Southeast Quarter of Section 34, Township 116 North, Range 23 West of the 5th ' Principal Meridian which lies northerly of the center line of U.S. Highway No. 212 and southerly of the southerly line of Chicago North Western Railway Company. • (continued) THEREFORE, Complainant requests that said Defendant, subject to bail or conditions of release where applicable, (1) be arrested or that other lawful steps be taken to obtain Defendant's appearance in court; or (2) be detained, if already in custody, pending further proceedings; and that said Defendant otherwise be dealt with according to law. Charges: Illegal outdoor Complainant ' storage (4 counts) Scott Harr Being duly authorized to prosecute the offense charge, I hereby approve 11 this C plai Ordinance(s) 20 -909 ' Elliott B. Kn ch, #168130 Prosecuting Attorney, City of Chanhassen SEE REVERSE SIDE FOR COURT DATE 1380 Corporate Center Curve, #317 Eagan, MN 55121 (612) 452 -5000 1 ' CITY OF CHANHASSEN V. HARRY LINDBERRY PAGE 2 On or about July 8, 1992, the Subject Property was inspected by a ' City building official. The inspector observed seven sea /land containers stored in the open on the Subject Property. The inspector also observed approximately ten round concrete pipes ' stored openly on the Subject Property. On July 14, 1992, the Subject Property was inspected by a person ' from the City Planning Department. The City Planner observed the seven sea /land containers and approximately ten round concrete pipes stored openly on the Subject Property. On October 28, 1992, the Subject Property was inspected by a person form the City Planning Department. The City Planner observed the seven sea /land containers and approximately ten round concrete pipes stored openly on the Subject Property. Chanhassen City Code Section 20 -909 - Outdoor Storage, prohibits outdoor storage in the manner that it is being conducted on the ' Subject Property. OFFENSES ' COUNT I - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 20 -909 - 0 - 90 days and /or $700 That on or about July 8, 1992, in the City of Chanhassen, County of Carver, State of Minnesota, the defendant, HARRY LINDBERY, then and there being, did wrongfully and unlawfully permit illegal outdoor storage on the Subject Property. ' COUNT II - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 20 -909 0 - 90 days and /or $700 1 That on or about July 14, 1992, in the City of Chanhassen, County of Carver, State of Minnesota, the defendant, HARRY LINDBERY, then and there being, did wrongfully and unlawfully permit illegal outdoor storage on the Subject Property. COUNT III - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 20 -909 - 0 - 90 days and /or $700 ' That on or about October 28, 1992, in the City of Chanhassen, County of Carver, State of Minnesota, the defendant, HARRY LINDBERY, then and there being, did wrongfully and unlawfully ' permit illegal outdoor storage on the Subject Property. 1 CITY OF CHANHASSEN V. HARRY LINDBERRY PAGE 3 1 COUNT IV - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 20 - 909 - 0 - 90 days and /or $700 That on or about July 15, 1992, and each day thereafter, in the City of Chanhassen, County of Carver, State of Minnesota, the defendant, HARRY LINDBERY, then and there being, did wrongfully and unlawfully permit illegal outdoor storage on the Subject Property. 1 1 • 1 1 1 1 1 1 1 1 1 1 1 § 20 -233 CHANHASSEN CITY CODE 1 (b) In determining conditions, special considerations shall be given to protecting immedi- ately adjacent properties from objectionable views, noise, traffic and other negative character- ' istics associated with such uses. (Ord. No. 80, Art. III, § 2(3 -2 -4), 12- 15 -86) I Sec. 20 -234. Denial for noncompliance. If the council denies a conditional use permit, it shall state findings as to the ways in which the proposed use does not comply with the standards required by this chapter. - ' (Ord. No. 80, Art. III, § 2(3 -2 -5), 12- 15 -86) Sec. 20 -235. Permits not personal. I A conditional use permit shall be issued for a particular use and not for a particular person. I (Ord. No. 80, Art. III, § 2(3 - - 6), 12- 15 -86) Sec. 20 -236. Expiration. ....)/( 1 If substantial construction has not taken place within one (1) year of the date on which the conditional use permit was granted, the permit is void except that, on application, the - council, after receiving recommendation from the planning commission, may extend the 1 permit for such additional period as it deems appropriate. If the conditional use is discon- tinued for six (6) months, the conditional use permit shall become void. This section shall I apply to conditional use permits issued prior to February 19, 1987, but the six -month period shall not be deemed to commence until February 19, 1987. (Ord No. 80, Art. III, § 2(3 -2 -8), 12- 15 -86) 1 Sec. 20 -237. Revocation and inspection. (a) Failure to comply with any condition set forth in a conditional use permit shall be a I 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. (b) Inspections will be conducted at least annually to determine compliance with the terms of a conditional use permit. (Ord. No. 80, Art. III, § 2(3 -2 -7), 12- 15 -86; Ord. No. 106, § 1, 8- 14 -89) I Secs. 20- 238 -20 -250. Reserved. 1 DIVISION 3. STANDARDS FOR AGRICULTURAL AND RESIDENTIAL DISTRICTS Sec. 20 -251. Scope. 1 In addition to all other standards required by section 20 -232, the standards in this division shall apply to conditional uses if they are to be located in agricultural or residential I districts. (Ord. No. 80, Art. V, § 9(5 -9 -1), 12- 15 -86) Supp. No. 2 1 1176 I . 47 CARSON AND CLELLAND ATTO$NEYS AT LAW 6300 SHINGLE CREEK PARKWAY, SUITE 305 JEFFREY A. CARSON MINNEAPOLIS, MINNESOTA 55430-2190 TELEPHONE WILLIAM G CLELLAND (612) 561-2800 STEVEN C. HEY FAX ELLEN M SCHREDER (612) 561 -1943 February 15, 1993 Ms. Sharmin Al -Jaff Planner I HAND DELIVERED CITY OF CHANHASSEN ' 690 Coulter Drive P.O. Box 147 Chanhassen, Minnesota 55317 RE: Lindbery Application Dear Ms. Al -Jaff: Pursuant to your direction, I enclose a copy of my Memorandum together with Exhibits for my presentation before the Board of ' Appeals and Adjustments and the Chanhassen City Council. I understand this matter is on for hearing the 22nd of February, 1993, at 6:30 p.m. ' Thank you for your assistance. Very truly yours, CARSON AND CLELLAND ,pffrey A. Carson JAC:nrz ' Enclosure cc: Harry Lindbery 1 1 1 IN RE: THE CONDITIONAL USE PERMIT OF HARRY LINDBERY FOR OPERATION OF A CONTRACTOR'S YARD AT 1700 FLYING CLOUD DRIVE, CHANHASSEN, MINNESOTA 1 M E M O R A N D U M TO: Mayor, Council and Board of Adjustments and Appeals City of Chanhassen In September of 1988, Harry Lindbery, owner of the property 1 located at 1700 Flying Cloud Drive, Chanhassen, Minnesota, and consisting of approximately 40 acres, received a Conditional Use 1 Permit from the City of Chanhassen (CUP 88 -11) for operation of a contractor's yard and contractor's yard activities. The zoning 1 district is A -2. 1 Contractor's yard activities are defined in the Chanhassen Code as follows: Contractor's yard means any area or use of land where vehicles, equipment, and /or construction materials and supplies commonly used by building, excavation, roadway construction, landscaping and similar contractors are stored or serviced. A contractor's yard includes both areas of outdoor storage and areas confined within a completely enclosed building used in conjunction with a contractor's business. Exhibit 1. Mr. Lindbery has, in fact, used and operated the property 1 identified above within the Code definition of a contractor's yard since that date. At the time Mr. Lindbery made his application to Chanhassen, he intended, and still intends, to construct a 7,000 square foot building on the property. Over the past several years, 1 circumstances (mainly outside the control of Mr. Lindbery) have 1 1 1 caused the construction of the building to be delayed. I will outline the circumstances of the building delay below. Before discussing the history of the building itself, I would like to point out several facts that should be considered by the City: 1) The definition of contractor's yard activities does not require a building; that is Mr. Lindbery does not need to construct a building on this property to use the property ' for a contractor's yard. Exhibit 1. 2) Mr. Lindbery has used his property since receipt of the Conditional Use Permit as a contractor's yard. 3) Although your zoning code has now been amended to prohibit contractor's yards in A -2, Mr. Lindbery's use would qualify as a legal non - conforming use of his land. Exhibit 2. 4) Although all terms and conditions of the CUP have not ' literally been met, negotiations between Chanhassen staff and Mr. Lindbery over the years have, in fact, amended the CUP alleviating the necessity for strict compliance with the permit. (Example: the requirement that he remove all buildings from the property; conversations with staff concluded that moving caretakers into the house on the property would be sensible for policing and safety protection both to Mr. Lindbery and to the City.) Exhibit 3. 5) City staff is not suggesting violation of the CUP terms but rather has taken a position that the CUP has expired, or in the alternative, the use of the CUP has been ' discontinued. Exhibit 4. 6) A criminal complaint filed in the summer of 1992 regarding improper storage charged Mr. Lindbery with four misdemeanors, which misdemeanor complaints are pending in Carver County District Court; Mr. Lindbery has since resolved the alleged problems. The offending units ' themselves were a part of Mr. Lindbery's use of the property as a contractor's yard. Exhibit 5. 7) Mr. Lindbery has paid $1,164.33 for a building permit to the City of Chanhassen (10/26/89); $34,752.00 for his building shell (3/15/89); $500.00 to MnDOT for their review, all obviously with the anticipation that the 1 building would go up as planned. (Note: The building 2 1 1 1 permit was issue over one year after the effective date 1 of the Conditional Use Permit and yet staff now alleges a one year expiration violation.) Exhibits 6, 7 and 8. 8) City staff continued to deal with Mr. Lindbery and the Conditional Use Permit as recent as October 22, 1990, over two years after issuance of the Conditional Use Permit. See Exhibits 6, 9 and 10. (These events all took place over two years after issuance of the Conditional Use Permit indicating both that Mr. Lindbery continued to use the property in accordance with the terms of the Conditional Use Permit and that the one year expiration has nothing to do with the construction of a building itself.) ' 9) Hearings to consider amendment of the code to eliminate contractor's yards from A -2 via Conditional Use Permit suggest (a) that existing contractor's yards would be handled as legal, non conforming uses and (b) that no landowner with a contractor's yard was notified or present at the hearing. Exhibit 11. 1 10) Mr. Lindbery has a legitimate complaint regarding the deficiency in the City's procedural process to date: (a) the Conditional Use Permit itself says a hearing will be held if violation is alleged; (b) Code Section 20.237 requires a public hearing to consider revocation of a Conditional Use Permit. Exhibit 12. 1 11) Mr. Lindbery has met with other agencies as required by the City and has met all requirements of said agencies. Exhibit 8. With regard to Mr. Lindbery's attempts to construct the anticipated building on his property per his application, Mr. Lindbery has paid over $36,000.00 for building inspection fees, ' MnDOT fees and for the building shell itself. He has poured footings and was ready to construct or place the building when a disagreement between Mr. Lindbery and a former Chanhassen Building Inspector stopped progress. This dispute involved the type of heating for the building; Mr. Lindbery wanted to place floor 1 heating in the concrete before pouring and the Building Inspector refused. The Building Inspector refused even though the heating 1 3 i 1 1 proposed by Mr. Lindbery met all requirements of the Chanhassen Code (Uniform Building Code). The Building Inspector simply had no 1 right to reject Mr. Lindbery's chosen heating method. Exhibit 13. Additional issues relating to the proper storage for hazardous 1 materials /waste surfaced and took additional time to resolve. 111 Then, unfortunately, Mr. Lindbery crushed his leg in a work related accident and was unable to do any work personally on the building project from June 1, 1991 to approximately June of 1992. But for the dispute between Mr. Lindbery and the former City 1 Building Inspector regarding heating, the building that is under ' discussion would be up and functional. The fact that there is no building on this property does not detract in any way from the use of the property as a contractor's yard. Mr. Lindbery has now been forced to defend criminal allegations and a jury trial is set in 1 District Court this March; additionally, Mr. Lindbery is required to appear before the City to defend the reasons his building is not ' constructed and, indeed, defend the continued use of his property for a contractor's yard. In fact, he has continued to use his property as a contractor's yard from the beginning and would like to continue to do so and construct the building that he has purchased. Mr. Lindbery has never ceased using the property as a 1 contractor's yard and mere statements by staff that he has, without any factual basis or support, cannot be the basis of City action. Mr. Lindbery urges you to consider the above facts and to weigh the relative equities before taking or confirming any adverse 4 i Mr. Lindbery urges you to consider the above facts and to weigh the relative equities before taking or confirming any adverse action towards Mr. Lindbery and his contracting yard operation. If 1 you accept staff's recommendation, you are relegating the property to agricultural use, in effect destroying its present usefulness • and value. Based on the above history, this would be both unfair and unlawful. Staff has already concluded that Mr. Lindbery's use should end. There was no fact - finding hearing but mere 1 conclusions, statements made regarding the status of the property. Mr. Lindbery continues to use his property for lawful purposes contemplated by the 1988 Conditional Use Permit. We urge you to affirm his position. Respectfully submitted, P Y CARSON AND CLELLAND / a �' e DATED: ' �y � O� / �. _ f Jef ,a: Ca ID #1543X Atney for Harry Lindbery 6310t Shingle Creek Parkway Suite 305 Minneapolis, Minnesota 55430 -2190 (612) 561 -2800 1 1 1 1 1 5 1 1 EXHIBITS TO MEMORANDUM TO CITY OF CHANHASSEN DATED 2/15/93 1 Exhibit 1 - Copy of Chanhassen City Code Section 20 -1 relating 1 to contractor's yards Exhibit 2 - Copy of Chanhassen City Code Sections 20 -71 and 20- 72 relating to the definition of Non - conforming uses Exhibit 3 - Conditional Use Permit dated September 12, 1988 ' Exhibit 4 - Correspondence from City Attorney, Elliott Knetsch dated October 2, 1992 1 Exhibit 5 - Criminal Complaint ' Exhibit 6 - Building Permit Receipt for $1,164.33 paid on 10/26/89 Exhibit 7 - Building Purchase Order showing receipt of ' $34,752.00 Exhibit 8 - Letter from MnDOT dated November 1, 1988 showing 1 payment of $500.00 Exhibit 9 - Inspection Report dated October 22, 1990 ' Exhibit 10 - Notes attached to Conditional Use Permit dated October 23, 1990 ' Exhibit 11 - Planning Commission Minutes from April 19, 1989 meeting ' Exhibit 12 - Copy of Chanhassen City Code Section 20.237 Exhibit 13 - Heating system brochure 1 1 1 1 1 1 1 z 20 -1 CHANHASSEN CITY CODE Church means a building or edifice consecrated to religious worship, where people join together in some form of public worship under the aegis and direction of a person who is 1 authorized under the laws of the State of Minnesota to solemnize marriages. A church may include living quarters for, persons employed on the premises and classroom facilities. The following are not considered as churches: Camp meeting grounds, mikvahs, coffee houses, 1 recreational complexes, retreat houses, sleeping quarters for retreatants during spiritual retreats extending for periods of more than one (1) day. Bible camps with live -in quarters, publishing establishments, ritual slaughter houses, radio or television towers and transmis- 1 sion facilities, theological seminaries, day care centers, hospitals, and drug treatment centers are not churches. Class A wetlands means wetland types 3, 4, 5, 6, 7 and 8. In the case of wetlands adjoining 1 a public waters designated as lake or pond this class shall also include type 2 wetlands. Type 2 wetlands shall also be deemed a class A wetland when adjoining a stream designated as public waters to the extent that it encroaches upon the one - hundred -year floodplain of the stream. 1 Class B wetlands means type 2 wetlands not adjoining a public waters designated as lake or pond nor within the one - hundred -year floodplain of a stream designed as public waters. 1 Clear - cutting means the removal of an entire stand of trees. Collector street means a street that carries traffic from minor streets to arterial streets. Conference/convention center means a preplanned, centrally managed development con- 1 taining facilities for business or professional conferences and seminars and containing ac- t commodations for overnight lodging, eating and recreation. The development is characterized by architecturally integrated buildings, common use of parking areas, and incorporation of passes recreational amenities into overall site design. Conforming building or structure means any building or structure which complies with 1 all the regulations of this chapter, or any amendment thereto. Contractor's yard means any area or use of land where vehicles, equipment, and/or 1 construction materials and supplies commonly used by building, excavation, roadway con- struction, landscaping and similar contractors are stored or serviced. A contractor's yard includes both areas of outdoor storage and areas confined within a completely enclosed 1 building used in conjunction with a contractor's business. Cul -de -sac means a minor street with only one (1) outlet and having an appropriate turn- around for the safe and convenient reversal of traffic movement. 1 .Day care center means any facility or home where tuition, fees or other forms of compen- sation is charged for the care of children and which is licensed by the state as a day care 1 center. Density, gross means the quotient of the total number of dwelling units divided by the gross site area. 1 Density, net means the quotient of the total number of dwelling units divided by the developable acreage of the site. Developable acreage excludes wetlands, lakes, roadways, and other areas not suitable for building purposes. 1144 1 EXHIBIT 1 1 1 § 20.60 CHANHASSEN CITY CODE 1 is Sec. 20-60. Denial. Variances may be deemed by the board of adjustments and appeals and the council, and 1 such denial shall constitute a finding and determination that the conditions required for approval do not exist. (Ord. No. 80, Art. III, § 1(3- 14(6)), 12- 15 -86) Secs. 241- 20.70. Reserved. 1 DIVISION 4. NONCONFORMING USES* 1 Sec. 20-71. Purpose. The purpose of this division is: ' (1) To recognize the existence of uses, lots, and structures which were lawful when established, but which no longer meet all ordinance requirements; (2) To prevent the enlargement, expansion, intensification, or extension of any noncon- forming use, building, or structure; (3) To encourage the elimination of nonconforming uses, lots, and structures or reduce their impact on adjacent properties. (Ord. No . 165, § 2, 2. 10.92) ' Sec. 20-72. Nonconforming uses and structures. (a) There shall be no expansion, intensification, replacement, structural change, or relo- cation of any nonconforming use or nonconforming structure except to lessen or eliminate the nonconformity. (b) Notwithstanding any other provisions of this chapter, any detached single - family ' dwelling that is on a nonconforming lot or that is a nonconforming use or structure may be altered, or expanded provided, however, that the nonconformity may not be increased. If a setback of a dwelling is nonconforming, no additions may be added to the nonconforming side of the building unless the addition meets setback requirements. (c) No nonconforming use shall be resumed if normal operation of the use has been discontinued for a period of twelve (12) or more months. Time shall be calculated as beginning 1 • on the day following the last day in which the use was in normal operation and shall run continuously thereafter. Following the expiration of twelve (12) months, only land uses which are permitted by this ordinance shall be allowed to be established. *Editor's note — Section 2 of Ord. No. 165, adopted Feb. 10, 1992, amended Div. 4 in its • entirety to read as set out in §§ 20- 71- 20-73. Prior to amendment, Div. 4 contained §§ 20-71-20-78, which pertained to similar subject matter and derived from Ord. No. 80, Art. III, § 5, adopted Dec. 15, 1986; and Ord. No. 163, § 1, adopted Feb. 24, 1992. Supp. No. 4 1 1164 1 EXHIBIT 2 CITY OF CHANHASSEN II CARVE- —AD HENNEPIN COUNTIES, MIA _..OTA CONDITIONAL USE PERMIT 1. Permit. Subject to the terms and conditions set II forth herein, the City of Chanhassen hereby grants a conditional 1 use permit for: Contractor's yard activities 2. Property. The permit is for the following described 1 property in the City of Chanhassen, Carver County, Minnesota: That part of the East Half of the Southeast Quarter of Section II '34, Township 116 North, Range 23 West of the 5th Principal Meridian which lies northerly of the center line of U. S. Highway I No. 212 and southerly of the southerly line of Chicago North Western Railway Company. Subject to an easement for Highway No. 212 over and across the 1 southerly 50.00 feet thereof. • 3. Conditions. The permit is issued subject to the I following conditions: See attached Exhibit A. 4. Termination of Permit. The City may revoke the I permit following a public hearing under any of the following circumstances: material change of condition of the neighborhood I where the use is located; violation of the terms of the permit. I 5. Criminal Penalty. Violation of the terms of this conditional use permit is a criminal misdemeanor. 1 1Y Dated: September 12, 1988 . II f? CITY = • ' I JT By: , V% Its Clerk 1 STATE OF MINNESOTA) ) ss COUNTY OF CARVER ) I The f regoing instrument was acknowledged before me this ,0' day of , 198/, by Thomas L. Hamilton, Mayor, and Ddn shworth, City Manager of the City of Chanhassen, II a Minnesota municipal corporation, on behalf of the corporation. II 17777 ' -_;r A etary P lic 3 EXHIBIT 3 I/ (2 pages) EXHIBIT A 1. A11 outdoor storage areas must be completely screened by 100% ' opaque fencing, berming or landscaping. A proposed screening plan shall be submitted prior to issuance of a building permit. 2. Hours of operation shall be from 7:00 a.m. to 6:00 p.m. Monday through Saturday. Work on Sundays and holidays is not permitted. 3. Light sources shall be shielded. 4. No outside speaker systems are allowed. ' 5. Compliance with the conditions of MnDOT including installation of a right turn lane and a left turn lane if required by MnDOT. 1 6. Installation of bituminous driveways, parking areas and loading areas. 7. Compliance with the conditions of Resource Engineering as written in their memo dated August 9, 1988. 8. Protection of the two septic system sites during construction. 1 9. Installation of a holding tank. 10. The building must be sprinklered. 11. Provision of one handicap parking space. ' 12. Contractor's yard activities only as defined in the zoning ordi- nance, are permitted. There shall be no shipping or other non - contractor's yard activities. 13. The applicant shall obtain and comply with all conditions of the permits from the Department of Natural Resources and the Watershed District permits. 1 14. All the existing buildings shall be trucked off -site and disposed of properly. 1 15. The erosion control plan shall be revised to include check dams at 100 -foot intervals in all proposed drainage swales. 16. The plans shall be revised to include erosion control measures for the proposed construction within the immediate area of Bluff Creek. 1 17. The pond outfall shall be revised to include a submerged outlet detail in place of the wooden skimmer. 18. Submission of a vehicle inventory list. 19. No heavy equipment or machinery shall be operating between 6:00 p.m. through 7:00 a.m. 20. No shipping activities shall originate on site. 1 - -_ CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. 1 Attorneys at Law , T ,. ,a 1 Camrhel) (6121 452-5,22C R;; <_er N Knut n Fax (612) 4;2-555C Thorn,- M Scott Gar L. Fuch- ^ Janie R. \); ai: ,,n rt: . ' L% Elh r-• B Lnet:ch M chael A Br ;'hacl. ' Rena,- P iteiner January 13, 1993 1 Attorney Jeff Carson CARSON & CLELLAND Brookdale Corporate Center Suite 305 6300 Shinglecreek Parkway Minneapolis, MN 55430 Re: Your Client: Harry Lindbery Chanhassen Conditional Use Permit 88 -11 Dear Mr. Carson: We represent the City of Chanhassen. We have been instructed to notify Mr. Lindbery that the City Planning Director Paul Krauss has made a determination regarding the above referenced conditional use permit. The determination is as follows: 1. CUP 88-11 is void. City Code Section 20 -236 provides as follows: "If substantial construction has not taken place within one (1) year of the date on which the conditional use permit was granted, the permit is void except that, on application, the Council, after receiving recommendation from the Planning Commission, may extend the permit for such additional period as it deems appropriate." 1 Mr. Lindbery installed concrete footings in 1989. Since that date, no further construction has taken place. Mr. Lindbery has not made an application for an extension. Therefore, it is the City's determination that CUP 88 -11 is void. 2. In the alternative, the conditional use was discontinued 1 for six (6) months so the permit is void. City Code Section 20 -236 states as follows: "If the conditional use is discontinued for six (6) months, the conditional use permit shall become void. Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121 EXHIBIT 4 (2 page' ' Attorney Jeff Carson January 13, 1993 Page 2 1 ' This section shall apply to conditional use permits issued prior to February 19, 1987, but the six (6) month period shall not be deemed to commence until February 19, 1987." Mr. Lindbery has not conducted any contractor's yard ' activities on the subject property at any time, other than illegal storage of containers and concrete pipes. Therefore, the conditional use permit is void. City Code Section 20 -236 does apply to any permit issued after the effective date of that section, which was December 15, 1986. The reference to February 19, 1987 allows a grace period for permits issued prior to February 19, 1987. It does not have the effect of limiting ' section 20 -236 to permits issued prior to February 19, 1987. 3. The time to extend the permit has expired. City Code Section 20 -236 allows a person to file an application to extend a conditional use permit. Mr. Lindbery's permit was issued September 12, 1988. Mr. Lindbery had until September 11, 1989 to file for an extension. Mr. Lindbery did not file an extension ' within the time specified by the ordinance. Therefore, the City Council has no power to grant an extension at this time. ' If your client is aggrieved by this determination, he may file an appeal with the Board of Adjustments and Appeals pursuant to City Code Section 20- 28(b)(1) (copy enclosed). Your client also has the option of meeting with City staff prior to the hearing with the Board of Adjustments and Appeals. You may contact Sharmin Al -Jaff or Paul Krauss directly at ' (612) 937 -1900 to arrange the meeting. You previously indicated to me that you wanted an opportunity to review the City's file on this matter. I do not object to this request provided I am given ' notice of when you will review the file. Please call if you have any questions or comments. CAMPBELL, SON, SCOTT & FUCH A. By: ....nt Elliott B. Kn=■ EBK:mlw ' Enclosure cc: Don Ashworth Paul Krauss Sharmin Al -Jaff STATE OF MINNESOTA DISTRICT COURT 1 COUNTY OF CARVER CRIMINAL DIVISION FILE NO. STATE OF MINNESOTA II (City of Chanhassen) Plaintiff, COMPLAINT - SUMMONS I vs. FOR MISDEMEANOR OR PETTY MISDEMEANOR HARRY LINDBERRY 1 Defendant, DOB: II - 6901 Maloney Avenue • Minnetonka, MN 55343 COMPLAINT 00 1 • Scott Harr being duly sworn makes complaint to th above- :, named Court and says that he/she believes this information and other persons!' j from whom it is obtained to be reliable and that there is probable cause to believe that the above -named Defendant committed the offense described below. The complainant states that the following facts establish probable IF cause: Your complainant is Scott Harr, Public Safety Director for the City of Chanhassen. In that capacity I have reviewed City i records, files and inspection reports and believe the following I 4 facts to be true. 4 4 The defendant, HARRY LINDBERY is the owner of certain real II property located at 1700 Flying Cloud Drive in the City of ( Chanhassen, County of Carver, State of Minnesota (Subject Property), legally described as follows: _ - That part of the East Half of the Southeast Quarter of ; Section 34, Township 116 North, Range 23 West of the 5th 4 Principal Meridian which lies northerly of the center line I _. of U.S. Highway No. 212 and southerly of the southerly line of Chicago North Western Railway Company. (continued) ,' 1 THEREFORE, Complainant requests that said Defendant, subject to bail or conditions of release where applicable, (1) be arrested or that other lawful steps be taken to obtain I Defendant's appearance in court; or (2) be detained, if already in custody, pending further proceedings; and that said Defendant otherwise be dealt with according to law. II Charges: Illegal outdoor Complainant II storage (4 counts) Scott Harr Being duly authorized to prosecute • the offense charge, I hereby approve II this plai Ordinance(s) 20 - 909 ` Elliott B. Kn ch, #168130 II Prosecuting Attorney, City of Chanhassen SEE REVERSE SIDE FOR COURT DATE 1380 Corporate Center Curve, #317 II Eagan, MN 55121 (612) 452 -5000 • EXHIBIT 5 (3 pages 1 . ' CITY OF CHANHASSEN V. HARRY LINDBERRY PAGE 2 ' On or about July 8, 1992, the Subject Property was inspected by a City building official. The inspector observed seven sea /land containers stored in the open on the Subject Property. The inspector also observed approximately ten round concrete pipes ' stored openly on the Subject Property. On July 14, 1992, the Subject Property was inspected by a person ' from the City Planning Department. The City Planner observed the seven sea /land containers and approximately ten round concrete pipes stored openly on the Subject Property. On October 28, 1992, the Subject Property was inspected by a person form the City Planning Department. The City Planner observed the seven sea /land containers and approximately ten round concrete pipes stored openly on the Subject Property. Chanhassen City Code Section 20 -909 - Outdoor Storage, prohibits outdoor storage in the manner that it is being conducted on the Subject Property. OFFENSES ' COUNT I - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 20 -909 - 0 - 90 days and /or S700 1 , That on or about July 8, 1992, in the City of Chanhassen, County I of Carver, State of Minnesota, the defendant, HARRY LINDBERY, then and there being, did wrongfully and unlawfully permit illegal outdoor storage on the Subject Property. II COUNT II - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 20 -909 0 - 90 days and /or S700 ' That on or about July 14, 1992, in the City of Chanhassen, County of Carver, State of Minnesota, the defendant, HARRY LINDBERY, then and there being, did wrongfully and unlawfully permit illegal outdoor storage on the Subject Property. ' COUNT III - ILLEGAL OUTDOOR STORAGE - Chanhassen City Code Section 20 -909 - 0 - 90 days and /or S700 That on or about October 28, 1992, in the City of Chanhassen, County of Carver, State of Minnesota, the defendant, HARRY 11 LINDBERY, then and there being, did wrongfully and unlawfully permit illegal outdoor storage on the Subject Property. 1 CITY OF CHANHASSEN V. HARRY LINDBERRY --------- - - - - -- PAGE 3 --------------- - COUNT IV - ILLEGAL OUTDOOR STORAGE - Chanhassen Cit C 20-909 0 90 days and /or 5700 e h day each tereaft That on or about July 15, 1992, and ea cate t ereaft City of Chanhassen, County of Carver, HARRY LINDBERY, then and there being w and de unlawfully permit did did S dn, ermit illegal outdoor storage n -Property. 1 1 1 i i ii • 1 1 1 } 1 1 1 1 1 PUBLIC SAFETY DEPAr'MENT ' Building and Zoning Di► ,n SERIAL NO B 3 C 3 f 690 Coulter Drive — P. 0. Box 147 M Chanhassen, Minnesota 55317 %- t�r„l, P1'!' a 612 — 937 -1900 - ' APPLICATION FOR BUILDING PERMIT CITY OF DATE 10- 2E= -89 SITE - ADDRESS 1703 Flying Cliow, Drive CHANHASSEN EST BUILDING VALUE S ;,000. c Name L �r Tirv-n; ZONING DISTRICT tu 3 Address 6gni Mp i rm- Avp RES COM X IND. PUBLIC 0 City FDti M_ Tel. £3.' -9570 NEW EXISTING PIN. I G Name Sa e GV Address SUBDIVISION triPlatt V LOT BLOCK W City Tel. No. F I hereby acknowledge that I have read this application and state that the SECTION NORTH HALF SOUTH HALF information is correct and agree to comply with the -anhassen, Minnesota 630 ordinances and the S -te of Minnesota la� egulati �.•:ing construction. Building $ 409.83 4�53 of / , / Plan Check $ i • Signature Permittee 44 L/� `fl/ 49. J CALL FO /IA INSPECTIONS LIS» Surcharge sHai, irmaT a y $ 0 BUILDING CARD PHONE 937 -1900 S.A.C. $ n/a F]1 SPAM REWIRES Sewer Surcharge s 75.00 DO NOT WRITE IN THIS SPACE `M Park Dedication $ PERMIT ISSUED Trail Dedication $ TO: ]Prt"y_,1S1b2rry Water Unit APPY T[' —L MET .5 $ On the express condition that all work shall be done in accordance S ' f E with the ordinances and building codes of the City of Chanhassen Sewer Unit 1 �t,+'�Y and the State of Minnesota. This Permit is void if work is not com- - F ' menced within 120 days or abandoned for 120 days. ! Water Meter . $ 8 ing Inspection Division - 4....--- BY / \ . - -6fe.- -c- ,-* f Public Safety Dedicat o ; I j $ 0 Other Fee P fjc I5 $ /MI.. r p„ TOTAL FEE PAID 1164.33 L k �� ITE ADDRESS T• r��'11 ( JY Date SERIAL N6. B P 1700 Flying Cloud Dr. 1 10 -26-89 t 'Subdivision 'Property I.D. No. Contractor Phone No. ain1atted 75 93s -9A70 • Lot No. Block Section No. Estimate Completion Da a Building Valuation f 34 ❑ N% pS34 $98,000. S urvey No. r Newer] Alteration ❑ Repair ID Addition 0 Demolish 0 Other E Y • r esidential ❑ Single Family 0 , Multiple Dwelling 0 No. of Units Other 0 Commercial CS Industrial ❑ Specific Use • storage oft 1st. equipment & supp7 i eS IK ind of Construction Type of Construction IFR IIFR 111 1 -hr,N III 1-hr,N IV H.T. V 1 - hr,N —SIZE OF WORK — Occupancy A B E H I R M DIMENSIONS AREA ELEVATIONS Group Division 1 2 2.1 3 4 5 x ., Sq.Ft. Planning Case No. x Sq.Ft. Zoning District x _ Sq.Ft. Use: Permitted ❑ Conditional ❑ Setback: Front x = Sq.Ft. Side Nonconforming ❑ x • Sq.Ft. Rear Variance ❑ TOTAL FLOOR AREA Sq.Ft. I $30 50, plan check $409.83, tax $49.00, sewer such. $75.00 .33 .. gp 4 7 I / D rLC� ''9 1 EXHIBIT 6 DELIVERY /PICK -UP INVOICE WedgCor, Inc. DEALER DEMAND TO COLLECT FUNDS ' Jamestown , ND584Q2 701 - 252 -7380 P.O. # D5 -9396 DEALER: REGENCY STEEL SHIP TO: Harry Lindery "CPU" ' 6901 MaLoney Avenue Hopkins, MN 55343 Prorate /Community Freight ❑ Private Freight It Per our notification on March 14, 1989 , your order is scheduled to be delivered Within Ten (10) Days I of , or picked up on 8 AN, MARCH 22, 1989 . Est. weight: 55,3R6 NOTICE: Actual delivery may vary before or after this date as delivery is dependent on material and carrier availablity. Construction equipment or additional labors should be arranged after the driver contacts you with a more specific delivery date. The dealer has ordered WedgCor to collect funds. WedgCor requires Certified Funds in the amount of $ 34,752.00 , made payable only to WedgCor, Inc., to be collected at time of arrival or pickup. This is not an assignment of terms and conditions of the dealer purchase order or the sales contract between the buyer and dealer. ' Failure to pickup or accept delivery at the prescribed time above, may result in community freight loss, storage charges, unloading and any other costs incurred by WedgCor. Refer to your dealer and /or dealer manual. Buyer or buyers agent acknowledges the dealer is independent and not an agent or contractor of WedgCor. Original C.O.D. $3 , REVISIONS AND CHANGES: *Certi fied or cashier' s check Current C.O.D. $34 752.00* $ NOTICE: Your building freight was calculated to Hopki ns city limit. If delivery drop site is inside or outside the city, ' additional freight at regular rate round trip will be added (per Schedule C in the dealer manual). Your driver will attempt to call in advance with a more specific time and day of delivery. To avoid downtime charges, please take the time to prepare for delivery: 1. Supply stacking materials for proper storage during unloading to prevent damages; 2. Sufficient help and unloading equipment. Missed pickups — refer to dealer and /or dealer manual. You or your dealer are responsible for complete inventory of your building. BE SURE TO COMPLETELY INVENTORY YOUR BUILDING MATERIALS! DATE March 15, 1989 SIGNED 5442 -A Two Rivers Printing, Inc. EXHIBIT 7 1 e Minnesota t Department of Transportation I g District 5 Q • np ''o* iiu '� Golden Valley, Minnesota 55422 1 (612) 593 - 8449 II Novemer 1, 1988 1 Harry Lindberg 6901 Maloney Avenue Hopkins, Minnesota 55343 I Re: Permit 5- A -88 -56 T.H. 212: C.S. 1013 Loc: Near Jct. County Road 10 1 Dear Harry: II ' The above referenced Access Permit has been approved based on your application dated September 26, 1988. This permit may be obtained at our office upon deposit of a certified 1( check in the amount of $500.00, payable to the State of Minnesota, Department of Transportation. 11 Upon obtaining this permit, you will be authorized to perform the approved construction within the State's right of way, subject to the rules and regulations, special provisions, specifications and plans I contained in the permit. Since ly, II I . William G. Warden II Roadway Regulation Supervisor II HARRY LINDBERY 2135 6901 MALONEY AVE. I HOPKINS, MN 55343 Nov. 4 19 88 75- 1492/910 PAY T° THE of Pin Trans. I $[500.00 ORDER Of _. II ** Five Hundred & No /100 * ** DOLLARS l • SOUTHWEST If 1 L STATE BANK i 7600 PARKIAWN AVE. EDINA, MINN. 55435 / // ...Permit 5- A -88 -56 /' / i _ 1 I , :09 LOL49241: 20nn.2&n'5 :II' 2135 EXHIBIT 8 1 1 1 E 1 _ INSPECTION REPORT . CITY OF CHANHASSEN, MNNESOTA C C 937 -1900 1 C e O INSPECTION FOR SR C. b t C! DATE TIME c �2Z� 1 = t° TIME & DATE INSPECTION DESIRED 1 n ADDRESS 1 t Q F1; r et wee PERMIT NO. CONTRACTOR14 or rt 1-/bAtatitrrci TAKEN BY: WATER METER NO 1 REMOTE NO.. LOCATION 1 CORRECTIONS O AFM n1)o- tal 1 S r , � I- c p , pr•�, 1 ' � 7 pl,r a rr .,0I. , i 4pr� val Z) 1 o0 OD fr, i to i Idh N Vt4G f Iqv 1 1 r _ 0 . r . 1 ,.LA 4 t 1 IA IA o I f Vt Ck C e et ISL. __r.o d1 4-1005 1 ., % e* . U tli 1. 11 , (. 1 14" IP 1 414 4 ; i 14 0UC-. CO• C i C•vC.C `4 • COC CI: CC• 1 CO CC04 C . - G • C. C. C • 4 ©0, - 1 - If no corrections are listed above, approval is hereby given to proceed. You will be in violation of the ordinance if you do not call for the proper inspections and make cor- rection as called for. ( ► ° o th !I b '�i t k 1 f Dat a 2 e/ 9 Time ilispector 1 EXHIBIT 9 1 EXHIBIT A • 40 i 1. All outdoor storage areas must be completely screened by 100% opaque fencing, berming or landscaping. A proposed screening plan shall be submitted prior to issuance of a building permit. 2. Hours of operation shall be from 7:00 a.m. to 6:00 p.m. Monday through Saturday. Work on Sundays and holidays is not permitted. 3. Light sources dhall be shielded. 1 4. No outside speaker systems are allowed. I I G 11,- Compliance with the conditions of MnDOT including installation of N a right turn lane and a left turn lane if required by MnDOT. .6. Installation of bituminous driveways, parking areas and loading 1 [ ,7( areas. A A! Compliance with the conditions of Resource Engineering as written II : in their memo dated August 9, 1988. • 8L_. Protection of the two septic system sites during construction. 1 9. Installation of a holding tank. EE IThe building must be sprinklered. II h "--- 32 Provision of one handicap parking space. 12. Contractor's yard activities only as defined in the zoning .ordi- ;blh, nance, are permitted. There shall be no shipping or other non - ri Le41) contractor's yard activities. , '3 The applicant shall obtain and comply with all conditions of the permits from the Department of Natural Resources and the Watershed r , , ,.l,� District permits. c t ^' j , ;•,14. All the existing buildings shall be trucked off -site and disposed • ,. - ` •; \--- of properly. jile°e - - 15. The erosion control plan be revised to include check dams at 100 -foot intervals in all proposed drainage swales. II 16. The plans shall be revised to include erosion control measures for the proposed construction within the immediate area of Bluff j ; ^\ Creek. 17 /The pond outfall shall be revised to include a submerged outlet n� ,,< detail in place of the wooden skimmer. � of a vehicle inventory list. `• . 19. No heavy equipment or machinery shall be operating between 6:00 II p.m. through 7 :00 a.m. 20. No shipping activities shall originate on site. w . ill II fxe rc* ■ 14. EXHIBIT 10 1 olz3rn Planning Commission Meeting II April 19, 1989 - Page 30 /PTJBLIC HEARING: II ZONING ORDINANCE AMENDMENT TO AMEND CHAPTER 20 OF THE CITY CODE BY DELETING SECTION 20 -255, SECTION 20 -574, SUBD. 6, AND SECTION 20 -773, SUBD. 6 (CONTRACTOR'S YARDS), CITY OF CHANHASSEN. II Steve Hanson presented the staff report. Chairman Conrad called the public hearing to order. 1 Wildermuth moved, Ellson seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. 1 Batzli: I'd like the record to show that there's nobody else in the room except for us and staff. II Conrad: Any general comments? Emmings: I want to ask if the contractor's yards that presently exist, were those people specifically notified of this? Hanson: We did not individually notify them. 1 Ellson: I thought we usually do... Emmings: Are you telling us that we're not obligated to? 1 Conrad: We're not. The question is, to be sure... Emmings: On one hand... 1 Conrad: Does anybody else have any other comments? (Discussion went on between commissioners that wasn't audible on the tape.) Headla: If we approve this tonight, how's that going to affect the ones I that already exist? Hanson: It won't... ' Headla: Then I don't see any reason to not approve it. Conrad: It's just that, would we learn anything additional? I Emmings: My concern is this. If we're going to make them, I guess the I word is legal non- conforming uses right? My question is, what terminates a legal non - conforming use? If they don't use that property for a period of a year, how would we ever know? Ellson: You've got to tell the neighborhood. Hanson: It's the same way we'd know that a conditional use now had 1 expired. EXHIBIT 11 (2 pages" 1 Planning Commission Meeting April 19, 1989 - Page 32 1 Erhart moved, Emmings seconded that the Planning Commission recommend 1 approval of the amendment to the City Code to delete the following sections from the zoning ordinance: Section 20 -255 Section 20 -574, Subd. 6 Section 20 -773, Subd. 6 1 All voted in favor and the motion carried. Erhart: My comment is, as time has gone on on this thing, it's become more and more clear that we are recommending the correct thing... I APPROVAL OF MINUTES: Batzli moved, Wildermuth seconded to approve the Minutes of the Planning Commission meeting dated April 5, 1989 as presented. All voted in favor and the motion carried. II ITEMS FROM THE PLANNING STAFF. U Steve Hanson updated the Planning Commission on what work had been done on the following items: convenience stores, wetland articles, zoning code, ( lse of matrix and letter from Roger Knutson dated April 12, 1989. Emmin s moved, Wildermuth 9 � seconded to adjourn the meeting. All voted in favor and the motion carried. The meeting was adjourned at 11:40 p.m.. 1 Submitted by Steve Hanson Planning Director Prepared by Nann Opheim 1 1 1 1 1 1 1 ' § 20 -233 CHANHASSEN CITY CODE ' sg : ,.:. - ~ : (b) In determining conditions, special considerations shall be given to Protecting '- - " vt. - a tely adjacent properties from objectionable views, noise, traffic and other negative chara�"` ` ::- istics associated with such uses. ° '.: (Ord. No 80, Art. III, § 2(3 -2-4), 12- 15 -86) -- - , �g�- > _;. �_ .•; . I Sec. 20 -234. Denial for noncompliance. 4 - $�.. � , ,. , T If the council denies a conditional use permit, it shall state findings as to the ways{ 1.'-'? `4i.`_ which the proposed use does not comply with the standards required by this chapter. ~ _, t 1:1".«,_, -7 . i - .. - s - ,,.. , . : - ' « ' :. = (Ord. No 80, Art. III, § 2(3-2-5), 12- 15 -86) �''`` Sec. 20 -235. Permits not personal. - t � ' , ,s, conditional use permit shall be issued for a particular use and not for a art i .. person. p 1 . (Ord. No. 80, Art, III, § 2(3 -2 -6), 12- 15 -86) ▪ - _ j 1 Sec. 20 -236. Expiration. = ▪ ; If substantial construction has not taken place within one (1) year of the date on whi . > -. ;,_ , the conditional use permit was granted, the permit is void except that, on application, t . == council, after receiving recommendation from the planning commission, may extend: . permit for such additional period as it deems appropriate. If the conditional use is disco ,_- - ::` tinued for six (6) months, the conditional use permit shall become void. This section sh :11 ;> • `; apply to conditional use permits issued prior to February 19, 1987, but the six -month peri•: ._',. a shall not be deemed to commence until February 19, 1987. i (Ord. No 80, Art. III, § 2(3 -2 -8), 12- 15 -86) - Sec. 20 -237. Revocation and inspection. _ (a) Failure to comply with any condition set forth in a conditional use permit shall be a V -'' • misdemeanor and shall also constitute sufficient cause for the revocation of the conditional i a ublic hearin .The roe sf permit by the city council following P g property rty owner shall be notified -; ' advance of the city council's review of the permit- __ � ,:, L - _ -'- Yom . : - : • (b) Inspections will be conducted at least annually to determine compliance with the : _ terms of a conditional use permit. - = 1 (Ord. No. 80, Art. III, § 2(3 -2 -7), 12- 15 -86; Ord. No. 106, § 1, 8- 14-89) i Secs. 20- 238 -20 -250. Reserved. _ =- - DIVISION 3. STANDARDS FOR AGRICULTURAL AND RESIDENTIAL DISTRICTS Sec. 20 -251. Scope. In addition to all other standards required by section 20 -232, the standards in this _ division shall apply to conditional uses if they are to be located in agricultural or residential -_-._ (Ord. No. 80, Art. V, § 9(5 -9 -1), 12- 15 -86) Supp. No. 2 1176 EXHIBIT xa _ D 1i 3. ; Wirsbo-pePEtRadiant Hydronic Hea ing Systems Wiisbo-pePEX Residential Heating t � om t ,; '' •• , Commercial / Industrial Heating • ._ylil.; Snowmelt /Frost Protection X ls-- • - er-e- - ", ,, ,t._ i •- lir% , it) 1/4. 414 F IP v to ■ IMIZI•or .n. n. - r.round 1 dronic heat distribution /ISI • in. he worlds leadin• r.ss inked sot e h lene - U. a a •• tec nol..y a Lion. cc M 1- Wirsbo- PEX Te h r I pe c o ogy 1 1 F or thousands of years. The result is a tubing that is Wirsbo -pePEX is a 3/4 -inch • Wirsbo -PEX tubing holds 1 people have known that durable. dependable and external diameter tubing the world record for long - the best wa) to heat an adaptable to the needs of with a nominal 5/8 -inch term pressure testing at enclosed space is to virtual]) all forms of internal diameter. It is tested sustained high temperatures: I introduce the hydronic and approved at 180 °F near's 1 0 years at 1 03 °F heat under the „, underfloor under 100 PSI. and comes under 175 PSI. and still surface and f j = _ heating. A in convenient coil lengths of going. I allow it to .” _ : r;, Wirsbo -pePEX 400 and 860 feet. In more radiate up and 447 4 system can be than 600.000 European • Wirsbo -pePEX is listed through the '�` = i designed to installations, Wirsbo -pePEX with the American Society area. Until very ` " _ .i∎ ; meet the needs is proving its effectiveness for Testing and Materials recently. no r of homes, in residential, commercial. (ASTM) under specification distribution apartments, industrial and other numbers F876 and F877. technology had offices, stores. environments. 1 proven capable of sustained manufacturing plants. operations. hospitals. schools, nurseries and many other facilities. I • Metal piping can corrode and weaken steadily. • Electric grid srstenrs can - `� 4 1 .r - : - 1 fatigue rapid]) and are ` r r - i F r at mer layer costly to operate. j '3 -, : � r , : • Plastic tubing alternatives : ` yt t - e � � .V.I. • can become brittle and x j$OI allow oxygen to invade the - ht �`` system and corrode metal m_ ! s•� f� • -' the power plant. _`" • ! ' � !•i , ' : • Rubber compounds can / • •4� ; • ,: ` '� •�, a lose elastuit) and also t> s ue ,„ •. • „, V • •w permit oxygen intrusion, s IPP. " ,e - W irsbo- pePEX, linked polyeth a cross- lene s y n� (PEX) tubing technology, ' ,` solves these problems and more. Through an exclusive, •� • • OA "AC patented process, molecules in Wirsbo -pePEX are 1 el crosslinked to provide a % plastic with remarkable - durabiliq over a wide range ■ 1 -'; t ie, .--.4 , of temperature and pressure � combinations. In addition, 1 Wirsbo -pePEX is � 1,;) i wrapped with five layers of a polymer to prevent ` oxygen diffusion into the `` 4- hydronic system ` 1 2 , ■ Hydronic Heat • Distribution In a hydronic underfloor ' heating system. the entire floor surface of the area to m be heated becomes the a I radiant heat source Heat is delivered b■ circulating hot water or another fluid r' ''s ' ` " + i t', >'''`` 4. through tubing suspended / - 8 1 . r I I inside the floor joists or entrained within the .../ I ‘,.'''' . _ concrete or poured floor 1 aggregate used as underlayment. True Thermal Comfort Individual :one controls allow different rooms to be maintained A conventional forced -air at different temperatures. reflecting how and when they are used, System Advantages system heats air to a high the different heating needs of exterior and interior spaces, and I Because Wirsbo -pePEX temperature, then blows it the comfort preferences of the people using them. Research distributes heat through the through ductwork into the consistently shows that radiant heating is the most floor, no wall or ceiling heat space to be heated. It's a comfortable form of heat. ducts or vents are needed. costly and inefficient Eliminating hot-air drafts process: The air must be greatly reduces the overheated to compensate circulation of dust, dirt, for heat lost in moving it pollens and other airborne from the power source to substances. the space where it is needed. What's more, since hot air I The true beauty of wood, rises, heat collects at the marble and tile floors ceiling while cold air pushes remains visible — the need down to floor level — to hide them under a rug where the human body because the floor is too cold senses thermal comfort. to walk on is forever I eliminated. Wall spaces are u eat in a radiant hydronic cleaner and less cluttered. 1 L system is transferred Draperies can be hung and from the Wirsbo -pePEX ' furniture arranged without tubing directly to surfaces compromises based on the within the space to be location of heating vents. heated. Radiant heating completely eliminates the I n a Wirsbo -pePEX hot -air draft created by hydronic underfloor heat forced -air systems. . t -e distribution system, �• . temperature and comfort In rooms heated with a can be controlled on a c Wirsbo-pePEX hydronic , L`,V .... room-by-room basis. system, people typically ' 1 79= °Y .., Individual zone and system find they are comfortable 7 7 ,, _ _?! controls replace the single with the thermostat set as centralized thermostat low as 65 °F. That saves i i 6: I common to conventional energy. And because heat _ � __ heating systems, thus in a hydronic underfloor �� 75 improving comfort while system is delivered directly, providing energy savings. low- temperature power Forced Air Heating Radiant Floor Heating • sources — including water Heat distribution in a forced -air Heat distribution in a radiant source heat extractors, solar, system is inevitably uneven, hot floor system is even and consistent geothermal and industrial spots occur near the register and throughout the room, there are no waste energy converters — at the ceiling, while cold spots drafts, no hot spots, no cold snots. I can be employed effectively. form at the floor 3 1 Comfort Without Compromise 1 1 T he human hod) is a Farthest awax from the the height of a normal adult at floor level. the room must h■dronic heating heart are the feet. the body's — meeting and satisfying be overheated at the level of system It circulates heat most sensitive heat sensors. the comfort needs of the feet the heart. If the system is I I from a central source by The last to receive heat. and the heart. regulated to keep the heart distributing a heated liquid they are the first to comfortable, the feet sense a 1 through a network of piping recognize the discomfort of istribution is the key. colder environment. Either (the blood system). The first a cold environment. The D Forced -air systems are way, the body perceives priority of the system is to goal of a heat distribution unable to match the itself to be uncomfortable. maintain the temperature at system (as illustrated in the distribution profile of the the core (the heart) That Ideal Heating Curves Ideal Heating Curve due to need met, heat is sent below) is to provide one of the basic principles toward the extremities. consistent temperatures of thermodynamics: Hot air from the floor to just above rises. To put sufficient heat \:: - ° - t ° DEGREES FAHRENHEIT 1 Ideal Hearing Curve \s Wirsbo Radiant Floor ©• • 65` . ° 74` • . Heating Curve • NORMAL THERMOSTAT HEIGHT '. - _ ° Forced Air Heating Curve 1 Mo -, o � �o 80 . % DEGREES FAHRENHEIT I I Ideal Heating Curve Radiant Floor Heating Forced Air Heating For optimum hear distribution, By delivering heat almost Because hot air rises, more heat temperature should be relatively precisely according to the Ideal must be forced into the room to constant from floor -level to just Heating Curve, a Wirsbo pePEX maintain a comfortable 1 about the height of a normal adult system assures that all of the heat temperature at floor level. The produced contributes to the heat represented by the shaded comfort of the room's occupants. area at right is excess — wasted People literally "feel" more energy. comfortable Del vea Do'* r esearch Dy T. Bedford ('The Warmth Factor in Comfort al Work'). F A Chemko ('The Effects of the Floor Temperatures of Floor Surface and the Au an Therma Sensalor and the Skin Temperature of the Feet'). and PO Fenger ('Thermal Condon./ 1 4 1 Homes A Design For Any I Type Of Installation Wirsbo -pePEX underfloor Apa• ^ -ie. heat distribution systems can be installed in and type I of floor and in any kind of structure: Offices 1 Store Resta��an's '' ��r i - ., - Nurseries . - " f t \ r Facto, ies y µ ��x 4 , p _ _ e _ 1- ,e1 W ood With Aluminum Plates Wood With Poured Floors Warehouses In residential and other forms of Using Wirsbo's PEXgrid plastic I construction using suspended track system or construction wood floor consnuction, Wirsbo- staples, Wirsbo -pePEX is fastened Scnoo s pePEX tubing is run within the to the surface of the wooden sub- subflooring joists To maximize flooring before the addition of a ' heat rstrt anon uni ormitx, the poured -floor underlayment Daycare tubing rests in grooved aluminum heat emission plates that absorb I and radiate hear from the system into the floor above • Hospita!s Prisons - 1 ..,,,' .:-...- : .-' - ...,' "-':.‘.' _ - Gymnasiums / i i 1 . - / - C t .-. , - . -'.- :..„- , ( oliseums ;; -.. Clubhouses Concrete Slab Floors Concrete With Poured Floors I For basements, factories, For the upper floors of buildings warehouses and other slab -on- using pre - stressed floor systems, Kennels grade installations, Wirsbo -pePEX Wirsbo -pePEX tubing is placed tubing is tied to the reinforcing above the concrete, after which a I mesh before the slab is poured. layer of lightweight concrete is Parking Ramps Once in place and pressurised, poured. To maximize the speed Wirsbo -pePEX is virtually immune and efficiency of the installation, to damage from construction the tubing can be held in place by Parking Lots equipment Wirsbo's unique PEXgrid track system. 1 5 i Make Wirsbo Your Design Partner 1 1 W irsbo is one of A Design For Any Technical Design Europe s largest and Type Of Heating Plant Assistance most experienced manufac- Wirsbo - pePEX's oxygen No organization in the turina and technology diffusion barrier is one- world has more experience companies. Founded in thousand to fifteen- thousand with hydronic heating Sweden in 1620.11 has times more resistant to technology than Wirsbo. No pioneered hydronic oxygen penetration than any matter how large or unique underfloor radiant heat other unprotected synthetic the installation being distribution in more than tubing used in underfloor planned, Wirsbo has the 600.000 installations heating today. Conse- - design experience and throughout Europe. Our quently. boilers, fittings and resources to support it. exclusive patented Wirsbo- other components are not pePEX tubing technology is limited to high -cost stainless Technical design support . proving its reliability in steel and other non - ferrous also is available through applications from homes materials. Boiler loop Wirsbo's network of trained and apartments to offices isolation heat exchangers sales representatives coast and stores. industnal shops are not needed. Neither are to coast. From the heat loss and manufactunng plants to expensive and questionable Individual zone controls allow and structural specifications hospitals and schools. corrosion inhibitors. temperatures to be controlled of your project. we will room -by -room. provide a complete system diagram and materials list Tubing runs assure even q (including the tubing layout distribution of hear in every part and full installation of the room. instructions). We'll also \ 0 ` consult with you on heat o ._ ,a 1 1 .� t1 plant sizing and other ` desi design decisions. "tr ll IN , , i CI C Manifolds on each floor provide e4 '� quiet. reliable distribution of heat " w�� . I sue., . � - -- • Mechanical where it's needed. ? Room on inium jp 7 ,` , r . C (. -) \ \ \,..■ r 6 I Wirsbo Tubing Manifold r Specification Furnish and install. in accordance Compac t design allows Telestat Junction Box with the recommendations of the I placement in walls closets. stairwells or • manufacturer. a hydronic heat distribution systerr System shall kirk .spar es - use a nomina 518' inside diameter .-- Thermostat Setback Clock crosslinkec polyethylene tape I Return • meeting ASTM standard F876 -877 : _ _ - Tubes shall be rated 180 PSI ._— Thermostat and shall have an integra' oxygen I diffusion barrier to reduce the Supply ` potent,a! of systerr corrosior 1,-,... "" i# End cap with valve hose T adapter and air rent t - System shall be complete and shall Precision- manufa; nn-rd include system design. tubes. tube de _ i,u•ifcatirnr- resistant . 11 I f , bends. tube tie- wires. heat - ss r cone in t ; r (if requiredj. f hra emi ssion sheer II double and triple attars to Bend Support valves. fittings, manifolds, manifold accommodate up to 10 supports, telestats (valve individual loops ` J ----...--_ actuators). room thermostats and 115124V AC (UL approved) Installs in minutes with b transformer. Tube shall be canmrnn hand tools 1111111111 � _ warranted for 20 years; associated accessory items furnished by 1 manufacturer shat be warranted for 18 months from date of sale. Complete Pre- Typical Data For Various Applications Engineered Package - Notes A Wirsbo -pePEX Application RESIDENTIAL COMMERCIAL INDUSTRIAL SNOWMELT A Wirsbo radiant heat distribution underfloor heating system Room Temp 65 -72=F 60 -72 °F 55 -681 251 system can be installed in most comes complete with all the Water Temp 95 -1601 90 -140`F 85 -110'F 90 -130=F floors witn extremely favorable resorts. Tubing should not be manifolds. rie es. couplings Surface Temp 75 -881 75-85°F 7U-85°F 35 -45'F installer underneath wall s. in close and accessories — including Hear output 20 356tum so 0 15 306tuth sG n 10 20Bm n sq 0 80 l5OBtutr sq P< < installation tools — needed. — — t, on stairs or in locations ' In addition. Wirsbo -pePEX Temp Drop 10-20'F 10-20°F 10-20 F 20-351 where future contruction is like y systems are supported with Flow/ Loop =0 7gprn =lgprn =lgorn =2gpm Care must be taken during installation to avoid punctures to a full line of thermostats and Pressure Drop 5 -200 H2O 15 -400 H2O 20 -500 H2O 20 -5011 H2O the tubing due to nail or staple I telestats (valve actuators) to Loop Length 150 -37511 250 -400n. 300 -45011 150 - 24011. holes or construction damage. meter and regulate each heat Tube on Center 6-12' 12.18' 12-24" 8-10' zone according to Wirsbo's Wirsbo -pePEX tubing is designed computerized design NOTE: Above examples are not a complete list of applications. Above factors for use in a low- temperature i program. are dependent on each other Do not base a system design on these average system Operating water values. The lengths shown are averages and not compatible for all installations temperatures depend on a variety within the application. The heat outputs are averages only. Heat loss analysis is of factors. and may need to be required for an actual system. increased in installations where there is an unusually high heat -loss A 14 irsho•pePEX system can requirement, in suspended wood operate limn (1111 type of hailer or floor construction, and in Karr heating plant installations where thick carpeting will be installed over the flooring. Where a combination of adverse factors makes it impossible for the ,`- -`'- �_ � �� \ ti underfloor hydronic system to - \` , provide adequate heat output at an _ \. , acceptable water temperature. the Via: - _` _ y \ -N•.. \ \ installer is cautioned to reduce ` resistance to upward flow (by decreasing the thickness of carpel Y _ _ — _ or pad), use an alternate type of • \. "� — - floor construction, or provide a supplemental heat source such as radiant baseboard. 7 W irsbo PEX technology Wirsbo - pePEX • - I is bringing the proven Patented PEX tubing potential of crosslmked with its fig e -layer ox) gen , .'` polyethylene tubing to the diffusion barrier is being .- United States. No matter used in hydronic underfloor what kind of application is heat distribution systems of under consideration — all types and sizes as well as 1 I underfloor heating. small -scale snowmelt and snowmeltins. de- icing. groundfrost control systems. refrigeration. chemical transfer. potable water Wirsbo Meltaway • - suppl). agncultural tubing For larger snowmelting and — a Wirsbo product can ground frost control. Melta- '- meet the need. wa, tubing's one -inch diam- E F Made In America eter is proving its usefulness in streets and sidewalks. Our new manufacturing. parking ramps. athletic {`z distribution and training fields and racetracks, and center in Minnesota allows other outdoor locations. . Wirsbo to support Europe's leading hydronic heat distribution technology with Wirsbo R - PEX • \,\t \\\ \\ \�` "'' \ \ \ \ \ \ \ \ \ \ \\\v "" close -to- the - customer sales Wirsbo's pre - insulated MI` \ \ \� \�\ - and service lar PEX ale b distnct heating \,\ ��\\ \\ € t��0 A Wirsbo Distributor and heat distribution , Is Near You systems. \ \\ T 1 o find your nearby Wirsbo h .1) representative. simply call . the Sweets Buyline Service: 1- 800 -521 -2737. At the p prompt. enter the Wirsbo Wirsbo - hePEX • i ID# 3792. A supply tubing with an oxygen diffusion barrier that I has the ability to replace j copper pipes in distribution applications. I • I Wirsbo -inPEX • . > -> >`>" . - ._ • D Designed for industrial and I - ' _ . . : other processes from food plants to dialysis machines; -4- available in diameters j from 1/8" to 4 ". i I r F e e I T h e H e a t WI RSB CI 1 5925 148th Street West • Apple Valley, Minnesota 55124 WIRSBO CANADA 580 Park Street • Regina, Saskatchewan S4N 5A9 1 City Council Meeting - February 22, 1993 some money even though we have to spend some. Next item. II INTERPRETATION OF CONDITIONAL USE PERMIT VALIDITY, CUP 188 -11 FOR A CONTRACTOR'S `^ YARD, 1700 FLYING CLOUD DRIVE, JEFF CARSON. II Sharmin Al -Jaff: In 1988 the City Council approved a contractors yard by approving a conditional use permit application. The contractors yard was supposed to have a building...parking area, a driveway that would lead into the II building. The existing buildings on the site were proposed to be demolished and removed off the site. There were 20 conditions attached to your report that were the conditions of approval. One day before the permit was to expire, the I applicant applied for a building permit. Staff issued the permit. However... construction or development taking place on site. The zoning ordinance reads, if substantial construction has not taken place within one year of the date on which the conditional use permit was granted, the permit is void. Over the past two years staff has not noticed any construction taking place and we are interpretting the ordinance to read as the conditional use permit as void. The applicant is contesting our interpretation and is in front of you today to I get...interpretation. We are recommending that you find the conditional use permit as void. If you have any questions regarding the inspections, with us today is Building Official, Steve Kirchman. He'll be here to answer any 1 questions you might have. Thank you. Mayor Chmiel: Thank you Sharmin. Is the applicant, Jeff Carson here? 1 Jeff Carson: Yes, your Honor. Mr. Mayor, Council members. My name is Jeff Carson. I represent the applicant, Mr. Harry Lindbery who is present tonight. r Mr. Lindbery did indeed, I should also indicate that we were before the Board of I Appeals and Adjustments from 6:30 to 7:30 and I will be repeating myself and I apologize to Councilmember Senn. In case you don't know, they recommended the interpretation as Sharmin has indicated. That the permit be voided. Mr. 1 Lindbery did receive his conditional use permit and I trust that the packet of information is before the City Council that was submitted by the applicant, which includes a brief memo and some exhibits. It is our underlying contention that the conditional use, that the applicant has indeed used the premises since 1988 as a contractors yard. And I put the definition of a contractors yard in the first page of my memo to show that the definition of a contractors yard does not require a building at all. In fact the use of the property, as Mr. Lindbery I has made it since 1988, is exactly that. Storing of materials for construction, contracting. That's his business. It is true that the original application contemplated a building and although we debated at the Board whether or not I without a building this application or this applicant could construe or would be permitted to say that he was operating his property lawfully all these years. A literal reading of the conditional use permit doesn't state that you have to have this building. That is this property, which is approximately 40 acres, 1 could be used without a building. Nevertheless, the applicant, and I outline. I don't think I'll go through it again in all the detail. He did intend to build a building, and to that end he obtained a building permit, as staff indicates 1 approximately a year after the issuance of the conditional use permit. A dispute arose and we're having a hard time getting a handle on that, or pinning it down. But in my materials I submitted to you, I gave you a packet of information about II the floor heating. It's a heating system if you will that the applicant wanted to put in this building. The idea was, and he obtained the building permit and 1 8 1 City Council Meeting - February 22, 1993 he bought the shell of the building in 1989, and he's spent $36,000.00 doing that. Obviously intending to put that building on the property. He got into a dispute with the building official, which is at issue about that but he did. That's his statement. Over the type of heating to use. He wanted to put the tubular heating in the floor and pour the cement. Probably at the time state- of-the-art. The building official told Mr. Lindbery, no. I'm not familiar with it. You can't do it. That stalled the project and it never frankly got back on track. There was a period of time during this process where Mr. Lindbery was literally out of, physically unable to move forward personally himself on the project. He crushed his leg and was out of active participation for a year on the building project. So these periods of time came and went and they are significant periods of time and that was my reading of the Board of Appeals was, too much time has gone by. You could have and should have come to the City a long time ago. You didn't. Why didn't you, and my answer to that was everything in hindsight is always clearer and it's better and certainly I agree. He could have and should have come to the city the moment that a dispute arose about anything. I would point out that the staff was actively, at least working on this project over 2 years after the issuance of the conditional use permit. The reason I raise that is that the interpretation that the staff is making is substantial completion of the building after one year was not met. Therefore, you voided your permit and that's that. In the exhibits that I handed you, there is activity from the Building Department, and I would refer you to exhibits 6, 9 and 10 I believe. What it shows is that the Planning Department is, at that time dealing with the permit. In fact Exhibit 10 I believe is the cover sheet of the conditional use permit itself. And then the right lower corner it indicates somebody's doing some research on an issue as of 10/23/90. Significantly greater than 2 years after the issuance of the conditional use permit. My point being that I feel, based on what happened in 1992, that that's simply the convenient, if you will, answer today. That is, well let's see. What's happened here. Time has elapsed. You're out of business. I would also point out that in 1989, when the City went through the process of removing contractors yards from the Zone A2, which is what we are, they had appropriate hearings and those hearings were predicated by published notice but, and I believe it's Exhibit 11, is a front page of a Planning Commission Minutes where one of the Commissioners looked around the room. This was the hearing to decide on what recommendation the Planning Commission was going to pass to the Council. There's no contractors in the audience. There's nobody that's a holder of a conditional use permit if you will, and the question was raised. Why'isn't anybody here? Were they notified? The answer is no. You don't have to notify people if you're changing the zoning. You just have to publish. Technically that's probably correct. But the other portion went on to say, what about these people who are operating today? And the answer was, they're - conforming and therefore they're not going to be effected adversely by this action. Mr. Lindbery was not notified of the change in the zoning and he was not notified by staff frankly that he was running out of time to complete his project at any point in time. Then in the summer of 1992 what happened was, part of his contractors yard activities involved the storage of large and rather unsightly construction box units that he would rent out to other contractors to store their equipment in on site. And instead of putting them down, around behind the berm on his property, which he now knows he should have, he them up closer to the road and they could be seen. So what happened was, staff saw them. Wrote to Mr. Lindbery. He wasn't responsive and that has led .. to the presently pending criminal charges in District Court, which we are having to address. He 9 II City Council Meeting - February 22, 1993 ' has since corrected the problem, by his perception at least, and put the boxes that he uses in his business behind what we consider to be a berm. An adequate berm. In other words, you can't see them from the road and that's the problem # ' here. The upshot of it of course was, staff was looking at this application and I at the whole property as a whole. In 1992 they determined that this violation $ , or this voidance of the permit had existed and thus reached that conclusion. Now the applicant can't, that takes us up to about mid -1992. That is from that II point forward until today we're in an active dispute if you will, including the criminal charges. The point was made at the Board of Appeals that a lot of time seems to have elapsed between the issuance of the permit and let's say mid -1992. I And I don't disagree. There's a reason for what happened. It may not be adequate in the minds of everyone but it's what really happened in the real world in this case. He didn't get the building done. He got into the dispute with the Building Inspector and he didn't follow through and he didn't come to II the City and ask for an answer as to what he was going to be required to do. And here we sit. The zoning has changed. We're told he's not in a non - conforming status. He wasn't at the meeting where the zoning changed so he ' can't be in a position to do anything with this property other than use as agricultural, if indeed the use as a contractors yard is prohibited. It is our hope that you will, given all the circumstances, permit Mr. Lindbery to continue II his operation by conditional use permit. He would like indeed to construct the building. As I indicated, he's got more than $36,000.00 in actual monies spent for the permit and the shell and the MnDot approval process. He's ready, willing and able to complete the project if he can get the appropriate approvals II from city staff, which we believe we can do. And by denying him his opportunity to go forward, you're simply saying that the land is not going to be used anymore by this individual for the work that he does, which is operate a F , contractors yard. A couple of points were argued, debated at the hearing. Mr. Lindbery has used the property during this period of time continuously as a contractors yard. Obviously he did not build the building and so those parts of c--J the permit that relate to construction haven't been met. That also was a " finding at the hearing of the Board. I would hope that you would consider this. There's some equities here. There's some technical points. There's some questions about what does the Code mean, and keep in mind that he wasn't given a II public hearing. He wasn't told that his conditional use permit is in violation or any of that. It was just during this criminal process he was advised that it's void. It doesn't exist. And I'd like to think that given the history and the relative difficulty of interpretting exactly what that permit means, I think there are differences one might bring to the interpretation of the law as it relates to this permit and I would hope that you give Mr. Lindbery the advantage at least to make it right. I don't see that the city is any the worse off if he I does. Clearly he is going to be in serious economic difficulties if he's told he has to vacate the use of that property. I thank you for hearing us, a second time. If I can answer any questions, I'd be glad to. "Mayor Chmiel: Okay. Are there any questions? Mark, do you have any questions at this time? Sitting on the Zoning Appeals. Councilman Senn: Basically at zoning appeals, my tact I think was a little different than staff's and City Attorney's I guess. I have a hard time making the connection between the conditional use permit and the argument that no ' construction has occurred on a building. The reason I have that trouble is that in the conditional use permit, the conditional use permit lacks any reference to ' 10 `- City Council Meeting - February 22, 1993 a site plan and lacks any reference to a building. Other than some vague ones such as a building must be sprinklered. That type of thing. Yet I don't have 1 much sympathy for the applicant because what I see as a conditional use permit, even though contractors yards activities may be very vague and arguable for many hours, conditional use permit I don't feel is. It says the conditional use permit based on Exhibit A, the condition on Exhibit A, and any violations of the terms of the permit means that it's terminated. And basically went through the conditions, the 20 conditions of which a majority have never been met. Forgetting whether building is a reference point or not a reference point. And I don't have a problem at all denying this permit on the basis that no construction has occurred. Also, that the applicant is in violation of a majority of the conditions of the conditional use permit. I do have a hard time basing some form of denial back on whether a building exists or does not exist. I guess that's why it ended up here before us because I have that problem. Again I would strongly recommend denial but I think we ought to call it for the reasons it is, rather than the reasons that don't really exist in any documentation because quite honestly I think the applicant concurs that documentation on this is pretty poor. Mayor Chmiel: Yeah, in looking through some of this as well. The conditional use so stipulates or even implies. I'm not sure what part of the law leans towards that but...conditional use shall be in compliance within one year from date of issuance, and if you're not, your compliance from that timeframe, that permit is void. And construction of a building had not taken place. Whether it's so stipulated within there or not, that was still part I think of the conditions as it indicates. • Councilman Senn: Don, I guess in. Mayor Chmiel: I understand you're not. Yeah, right. No, I understand that. I'm just clarifying that for the record more than anything. Okay. Michael, do you have anything? 1 Councilman Mason: Well, Mr. Carson certainly presents some compelling reasons but I'm confused as to why all the foot dragging on the applicant's part and why things just haven't happened. I guess I can only speak from my experience but if something goes wrong, it's just common nature for me to go up one step higher and find out what the problem is and what can be done about it. It seems to me if that isn't done, I'm not, it doesn't set with me. I don't understand. 1 Jeff Carson: Not having been there myself I can't, but let me do this if you would permit this. Mr. Lindbery is here and he does have, at least a response to that. It may not satisfy you but it does involve issues relating to his attempts to deal with plumbing and the things that he was dealing with. If you'd permit him to just address you for a couple of minutes. Do you want to do that Harry? Would you permit that Mr. Mayor? Thank you. Harry Lindbery: Well, where we run into one problem is we wanted to, we put in the pileasters for the building, the columns where the beams. We're building a building with no posts. It's 70 foot wide and 100 feet long. And we wanted to take the building engineer said we 'should take from these columns, run rerod into the floor. That way, if you get stress on the top of the building, because due to it's, on a shape like this, it wouldn't push out and push these columns 11 1 1 City Council Meeting - February 22, 1993 out and that's why if they're tied into the floor. And we had a problem with the plumbing man. He wanted us to put in two separate systems as far as drainage from the building. One from the sanitary where we would have a toilet in a lunchroom for the fellows. And then another one for the floor drain. So we told him we would. We went and bought the flammable waste. We had that already but we wanted to put it inside the building and then we had it there and wanted to hook it up. He said, no. You can't hook it up. You've got to put it outside the building. So we took and put it outside. Then we got a concrete sawing company to bore a hole through the footing around the building and we put it on the outside. Then we says, can we hook up the floor drains to it now? He says, no. Now you have to go down to the State plumbing department and get their okay. So the plumber I had hired, and myself, we went down there. The State plumbing man, he said geez. He says, how come you want it this way outside? He said, when you'd have about SO% of the time that would be froze up because he says we've got winters here and he says, I'll never approve that. He says, put it on the inside. And I says, well that's the way we wanted it. So then, he changed the plan. Then we went back to the city man. We asked him and we wanted to put radiant heat in the floor. He says he isn't familiar with that. He says put unit heaters up in the ceiling. And we says, they aren't as efficient and this here, when you heat the floor, it stays heat because if you open the door, the floor's warm. Your air rushes out. When you close the door, your floor is still warm. And I think you have a thing on that radiant heat. Well, what he didn't, he says he wasn't familiar with it. He wouldn't allow it. Then in 1991 I did have an accident. I was on a loader, front end loader and it's got a vinyl seat. And I slipped and hit a lever and I got my leg between some framework on the loader and it crushed it. My insurance company doctor, he wanted to whack it off below the knee. That's where it came, the bone come out both sides and I took and got a specialist and I went with him. He put a rod, . it was about 15 inches long and about the size of your finger and he cut both sides open and he put it all back together again and he made me stay off of it. So that kind of tied up the building. But we had drivers going in there and going out of there with different supplies during this time so we didn't abandon it. I was laid up for a while and our other fellows, they didn't want to go ahead and stick the building up but we've had the building all bought. All paid for and everything and as soon as the frost gets out of the ground, I'd like to take and put my rerod in the floor. First put the plumbing in. Put the rerod. Pour it and then so it would hold the columns in and then put the structure up. And it's out on 212 highway. We don't use any city streets or anything like that so I mean, I don't think we've ever bothered anybody. Mayor Chmiel: Thank you. Colleen, do you have any? Councilwoman Dockendorf: I guess I'd don't want to be completely blunt about this but I'm having trouble buying some of the arguments Mr. Carson's put forth on, particularly when you say we've never informed of the zoning change. I guess as a business person, you need to keep up on city ordinances, particularly when you own a piece of land and ignorance doesn't prove innocence. However, I do understand the complications in building. But it kind of sounds like you're complaining because you got caught. Jeff Carson: No. If I may respond to that Mr. Mayor. I'm complaining I guess, if that's what I'm doing, about the timing and the rationale for it. The reason this really came up was the units that he was storing for other contractors that 12 1 City Council Meeting - February 22, 1993 Councilman Wing: I'm not allowing to allow continuation of this unless it's complied with. And it's complied with in an accelerated method but I won't go beyond that. I'd have to allow staff and Council to address that suggestion. Harry Lindbery: Well I just wanted to put out the thing. Do you have any objection to our radiant heat? Councilman Wing: No. That's what I've got in my house. Harry Lindbery: Well, your plumbing man wouldn't let us put it in. Councilman Wing: Well I don't know anything about that. Maybe there were reasons. I can't address that. ...the points are well taken. He asks the questions that can be handled elsewhere. I'm just bringing up the big issues here. Jeff Carson: I think he misunderstands the posture of the question at this point though. Councilman Wing: I'm trying to compromise on his... Jeff Carson: Yeah, and I think he's obviously willing to do that and that's really all we can ask of the city. Councilman Wing: I have one concern is that I saw Paul start to, he was leaning forward in his chair. If he was going to confront me here, I wanted it done now Paul Krauss: Well, don't take it as a confrontation. But we're here tonight because of an interpretation issue. We've interpretted this to have never occurred, therefore it's void. And the Board of Adjustments was looking to act on that and that's the question before you tonight. In taking the action that you've outlined, by granting an extension of something that we think is void, you've therefore said it's still valid. And that's an important point. Now you can do that, although I think the ordinance provides that that has to come through the Planning Commission. And then for action by you. But I guess we're real concerned though with some of the fundamental issues here. You know we're often accused of having large amounts of malice and forethought to any number of individuals around town when you know we usually respond to an issue that crops up and the issue in this case was that there was a bunch of trailers all over the front of the lot, and we couldn't figure out why. And we had letters that we sent out to the owner, which were refused and we sent them certified. They sent back to us. We knew that a building had been started years ago and was never finished. We knew that the conditions were never satisfied and apparently, according to the testimony by the attorney tonight, the applicant and his attorney are under the impression that they can go ahead and do anything that they classify as a contractors yard without satisfying the conditions. We take some exception to some of those assertions. You know when you pass something, a package of conditions, whether or not it was before our watch here, as in this case, or whether or not we wrote the staff report, we have an obligation to make sure those things are fulfilled. And when we went out there, we found out that just about nothing was fulfilled. You know yes, there are a whole different set of issues that I don't think are necessarily appropriate 15 City Council Meeting - February 22, 1993 tonight, as to what the Planning Commission and you might ultimately want to do with that area. And yes, the thinking has changed an awful lot since the mid 80's when contractors yards were put down there. We have results of that policy ..‘ with the cold storage, metal warehouse buildings that were gouged into the hill. ' I mean there's a lot of odd ball uses down there. I guess I'd defer to the City Attorney, but if in fact you're looking at granting some sort of an extension, I think that you have to be aware of the implications, an extension to what. And I think you have to probably procedurally do it a little differently. ' Elliott Knetsch: I don't think at this time you have the power to grant an extension. I think what you're saying Dick is that you had a valid permit. He ' made some use and made some purchases based on that permit, so that constitutes use under our ordinance and that never really lapsed. So he in effect does have a permit and now we should look at what are reasonable conditions on the permit. ' That's I guess what I hear you saying and if that's what you're saying, that's fine. I mean all we're asking for is staff and the City Attorney's offices, if you don't agree with staff's interpretation, then the permit is still in existence and at that point you can take action to revoke the permit for non- compliance with the terms. Or you can work with the applicant, given the fact that time has changed and their indicated willingness to work with you and hammer out some new conditions that are satisfactory to both sides. Councilman Wing: It just amazes me when you're educated how smoothly you can explain these things. That's where, there's enough expenditure here that I ' consider him to have the permit. And I'm comfortable with that. But I'll be real blunt and say, put up or get out. And there's the rules. You haven't complied. You either comply or you're out of here. It's black and white. And then it's a big, I consider this to have been a permit. There has been r expenditures made, and it never expired. I guess, is that the proper wording for my statement? The conditions of the conditional use, they haven't been __s complied wit. I guess that would be my issue tonight and I would expect ' immediate compliance. Total compliance or, in that case then we get into the non - compliance issue. Then what happens? Elliott Knetsch: Well, if the permit's there and it's not being complied with, then you have the option of having a hearing to revoke the permit for non- compliance or, if the applicant agrees to new conditions, you can put new conditions on. ' Councilman Wing: So then my 6 months would come in. 6 month restriction on compliance. Is that right? Elliott Knetsch: I guess I think that could be appropriate if you treat it as, in effect treat this as a hearing on whether or not to revoke the permit and say well you haven't done all these things. We could revoke your permit but we're going to take a less drastic step and say, we're going to let you keep the permit as long as you do these things within a certain time. I think you could do that. II Councilman Wing: Well I don't want to belabor this any more. That's my position and I'll... 1 ' 16 City Council Meeting - February 22, 1993 1 Mayor Chmiel: Okay, thank you. I too have been looking at this rather closely 1 and I see the time to extend the permit has really expired. In lieu of all the letters that were sent by the city and not received, nor accepted, I judge that as a portion that does bother me some. It should have been addressed at that given time. Jeff Carson: Your Honor, I might add. Those letters related to a violation of the permit. Mayor Chmiel: But nothing was answered. Jeff Carson: No, I just, the purpose of the letters was not to tell him to get going. It was to tell him that something that he's doing with the property is in violation. ' Mayor Chmiel: And that there were several things in accordance with the Exhibit A contained within that as well that had not been complied with. It seems like there's nothing that has worked through this always straight through. I feel uncomfortable with it. I don't like to do things or business that way, nor do I expect people to do business that way back to the city. So it'd be my position at this time to request a motion in regard to this proposal. Can I have a ' motion from the floor: Or discussion. Councilman Mason: Could I discuss for a moment before we make a motion? Mayor Chmiel: Sure. Councilman Mason: I share some of Councilman Wing's concerns about the applicant. However, hearing what Councilman Senn said earlier about the fact that we have a list of 20 items that need to be complied with and my understanding is that very few of them have in fact been complied with. And I guess if, I personally would like to hear from Mr. Kirchman for a moment or two about that. Because my feeling is that has more bearing on this right now. If none of this stuff has been complied with, my feeling is to hold the public hearing to revoke the permit and see how that comes out. Which is what we have to do, right? Elliott Knetsch: Staff's taken a position. This is sort of technical...and I think Mark and I kind of crossed wires on it at the Board of Adjustments and Appeals too. We're saying, as staff, that the permit has either, is void per no construction within one year. Or alternatively, that it expired because there was no use made of the property pursuant to the permit. So the use was discontinued. Therefore the permit expired. That's what staff has, that's staff's position. That's what we've informed the applicant. So under that line of reasoning, whether or not he complies with the 20 conditions in the permit is not relevant because the permit is, we're not saying he's violated the permit. We're saying the permit's gone. However, if you would accept the applicant's position that they did use the property. There were deliveries or whatever use constituted a contractors yard, and the start of the building and so forth, then you would say no. We don't agree with staff. We think the permit is still there. Then the question is, what do we do with the permit. Do we move to :# revoke it for not complying with the conditions? Or do we look to give them additional time to comply? 17 ' City Council Meeting - February 22, 1993 Councilman Senn: Can I ask a question? ' Mayor Chmiel: Sure. Councilman Senn: If I'm understanding you right then, the action tonight can only relate to whether a permit exists or doesn't exist? ( J Elliott Knetsch: Yes. ' Councilman Senn: Okay. And the action of whether the thing is void because of non - compliance cannot be addressed tonight? Elliott Knetsch: Yes. That's right. We should address that separately. If we get to the point where there is a permit, let's consider revoking it and we should hold a public hearing on that issue. And that would discuss whether or not the terms were complied with or not. Councilman Senn: Well I'd make a motion then that we believe the permit is still there and that we schedule a public hearing for revocation of the, or to consider revocation of the CUP for non - compliance. I Councilman Wing: I'll second that because it's my position. For discussion at any rate. Mayor Chmiel: It's been moved and seconded. Any other discussion? I Councilman Mason: Staff is saying nothing's happened within a year. And you're representing Mr. Lindbery saying things have happened? II Jeff Carson: Yes. ' Councilman Mason: That's essentially what's going on right now. Jeff Carson: Work that would be defined under the contractors yard, definition in your code, yes. I Steve Kirchman: I might, if I may? I Councilman Mason: Please. Steve Kirchman: I can maybe shed a little bit of light on that. I made my last ' inspection, a building inspection on October 22nd of 1990 and I asked that Mr. Lindbery come in and apply for a heating permit and a plumbing permit and then he could go ahead and continue with what he wanted to do on the building. I asked that he meet with the Planning Department and Building Department to I clarify some issues. He didn't come in so I periodically made trips out to the site to make sure that there was no construction activity on the building continuing. That was my primary purpose. But during those visits, at no time ' did I see any type of activity that could be construed as being used as a contractors yard taking place, until I made a note to the effect that the containers and the round concrete pipe were on the site. And that date was, well one second. Let me find that inspection. Okay, that date was. 18 City Council Meeting - February 22, 1993 Sharmin Al -Jaff: June 8th of '92. Steve Kirchman: Okay, June 8th of '92. So at no time before that, between 1 10/22/91 and that date when I noticed those, was there any construction activity or any activity taking place that could be construed as a contractors yard. Now, I only went out to the site maybe 2 times a year. It's way down there. I'd stop when I had time so I wouldn't have seen if there was any activity at all but there were no new structures. Nothing gone. No tracks out at the area so, and that's all I really have to say as far as the conditional use permit. , Councilman Senn: I don't doubt at all what Steve's saying. In fact I think he's probably 100% right. Again, I think our basic problem is in the original drafting documentation of the CUP and the lack of any action for 3 years. I think it's a lot cleaner. A lot simpler to simply get past that issue and say it still exists. Then go, the real issue is the fact that I don't care what excuse in the world you come up with, I can't figure out one that justifies 4 to 5 years of no action on a CUP with 20 very definitive conditions which have not been even, I mean I can maybe find a couple that have been complied with out of 20. To me, from a city's position, that's a lot more cleaner arguments than getting into a lot of semantics, especially when you've got a poorly written II CUP in the first place and even poorer documentation over 3 years to back it up. Councilman Wing: I'll just tack onto Mark that I think it gives the applicant , time to think about the fact that maybe 1988 was a good time to invest dollars down there. Maybe 1992 is not as good a year to invest dollars down there considering what may be coming his direction. Or, I don't know what date it is. 1993. Jeff Carson: If I may Your Honor, one of the problems of course is that the hearing itself would simply be a pretext. I mean the decision about everybody's feeling as to what has happened or not happened with respect to certain items on that list is pretty clear. You'll do what you'll do but it seems that everybody's made up their mind about that issue and I hope that the applicant has some opportunity. I liked what Councilmember Wing was saying that, maybe there's something, some common ground here that if the applicant and staff got together and who knows what those conditions would be. They might be more ' stringent. It might be less energenic a project. There's a lot of possibilities but when I say pretext, I mean it's simply, you're going to have a hearing so that you have a hearing. Simply do what you're feeling now, it seems. Councilman Wing: I think the items need to be reviewed. Maybe the building isn't needed. Maybe it's use has changed a little bit from what you decided. Maybe it's going to be an attractive contractors yard, but you're going to have to put up or get out. That's my position. Jeff Carson: Well, that's not unfair. Councilman Wing: I'm supporting you. Jeff Carson: That's not unfair. I have no problem with that. If the City says to the applicant, you've got this much time to do this much work to stay in business but it never, that was never said before. You can say what you will. 19 11 City Council Meeting - February 22, 1993 You can say that Mr. Lindbery is difficult and all of that but I really don't think he ever was of the mindset that this was what was going to happen. Mayor Chmiel: I'd like to call the question. II Councilman Senn moved, Councilman Mason seconded that the City Council finds the . J Conditional Use Permit *88 -11 for a contractors yard on property located at 1700 Flying Cloud Drive is still valid and to schedule a public hearing to consider II revocation of CUP #88 -11 for non- compliance. All voted in favor except II Councilwoman Dockendorf who opposed and the motion carried with a vote of 4 to 1. II Jeff Carson: Thank you for your time. What then will happen? Mayor Chmiel: This will get scheduled and staff will get in contact with you II and let you know when this comes back before us. Jeff Carson: Thank you. Does that come before the Planning Commission? I Mayor Chmiel: Yeah. You go before Planning, it comes before us. Item number 3. 1 ABRA AUTO SERVICE CENTER, SOUTH OF HIGHWAY 5, NORTH OF LAKE DRIVE EAST AND CHANHASSEN ESTATES AND EAST OF THE EMISSION CONTROL TESTING STATION: I A. SITE PLAN REVIEW FOR A 6,494 SO. FT. BUILDING. B. CONDITIONAL USE PERMIT TO ALLOW AN AUTO SERVICE FACILITY IN THE BH DISTRICT. II Public Present: Name Address II Al Beisner 7549 Mariner Point James Benson 15034 Cherry Lane Vernelle Clayton 422 Santa Fe Cr II Donald Hagen 4501 Hunters Ridge, Minnetonka Tom Kotsonas Chan Estates Gerard & Lindsay Amadeo 8007 Cheyenne Avenue II Councilman Senn: Mr. Mayor? I Mayor Chmiel: Yes. Councilman Senn: On item number 3, which we're coming to. I guess just so there's no pre -tense that we are again leading anybody down the path or down the I road, I'd like to make a motion that this item be tabled until after our Council work session next month. ' Mayor Chmiel: Okay. For what specific reasons? Councilman Senn: In that the Council work session is to specifically further II discuss and seek understanding as well as potential action on a moratorium involving Highway 5. t_) ' 20 1 1 CHANHASSEN BOARD OF ADJUSTMENT AND APPEALS REGULAR MEETING FEBRUARY 22, 1993 Chairman Johnson called the meeting to order. MEMBERS PRESENT: Willard Johnson, Carol Watson and Mark Senn STAFF PRESENT: Paul Krauss, Planning Director; Sharmin Al -Jaff, Planner II I; Elliott Knetsch, City Attorney; and Steve Kirchman, Building Inspector INTERPRETATION OF CONDITIONAL USE PERMIT VALIDITY. CUP #88 -11 FOR A CONTRACTORS YARD, 1700 FLYING CLOUD DRIVE. JEFF CARSON. Al -Jaff: This site is located north of Flying Cloud Drive, south of Chicago /Northwest Railroad. This application first appeared in front of II 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 decid� 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. Jeff Carson and they are regarding the building and the building permit. With us is Steve Kirchman, Buildin 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, oll 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? 1 Jeff Carson: Yes sir. Johnson: State your name please. ' Jeff Carson: My name is Jeff Carson. I represent Mr. Lindbery. Good 11 evening. I wonder, as part of the paperwork, do you have the documents that I submitted? Johnson: Yes. 1 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 11 Board of Adjustment and Appeals February 22, 1993 - 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. Lindbery has at all times since the Code changed, operated his contractors yard as a non - conforming use. And I have a list of exhibits that I've attached and your non- conforming section, if it does anything, it's an attempt to keep uses that exist lawfully at the time that a zone changes, in operation. I think ' 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. We 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. All the while anticipating I believe that it would not impact already existing uses. A couple of other things. The staff has been dealing with Mr. Lindbery over the years. And in fact, as I point out, and I have exhibits attached, they dealt with him on the issuance of the building permit and two different inspections. Those would be Exhibits 6, 9 and 10 to this attachment. The point being this. That the City was dealing actively with Mr. Lindbery on this site as a conditional 1 1 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 II 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 was still dealing with the property" as a conditional use permit. There was no discussion about the building isn't up and it's been a year. Or the building isn't up and it's been two years. They were going through the process. Now I also point out that II Mr. Lindbery has expended a great deal of money in this, just on the issuil 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 till 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 II 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 II not very well documented by from our perspective he would not have gone ahead and obtained the permit and expended the funds if he was not very serious about getting the building and getting it up. As I said, the footings are out there and so really the building was ready to be placed II on the property. Probably in 1989. I think there's something else that entered in here that kept Mr. Lindbery personally away from the project o 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. So you know these periods of time, they seem like great lengths of time when we talk about a year here and a year there, but when" you think about this process and you think about the time that has gone by, and in Minnesota you think about the period of time when you really don't construct typically, the winter. Not all that much time has II 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 1 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, etc, etc. Well, before you know it it's alleged and claimed that his permit is void and he's out of business. And I think that's what ' happened. I think reality is that it became a personality thing and it's unfortunate. It's unfortunate on the one hand that Mr. Lindbery didn't respond when he was notified and satisfy the staff. It's Unfortunate that we get into this debate really of what does the permit mean? What does ' the law mean? What has happened? Is it a non - conforming use? What happened in the process? You know there's a lot of things to look at but I think in reality that's what happened. Otherwise, why would the staff ' have gone out 2 years after the issuance of the permit, inspect the property and make notes and go on with things. It just feels like that's what happened. It is our hope frankly that we can get this thing back on ' track. That Mr. Lindbery can continue to operate the property as a contractors yard. He would like indeed to put the building up and there's a good reason to put the building up so that he doesn't have to store a lot of the things that he might be storing and has stored on the property ' outside. I mean there's a good reason he's putting the building up, and that was always intended. There's a couple of things I would, I guess I feel I should comment. In staff's report, which I received today, I guess I'm sort of following the, my comment. Their comment format that was written here. A couple of points I think I should make about this. I said Mr. Lindbery had used his property since receipt of the conditional use permit as a contractors yard. The response is, if the applicant used the property as a contractors yard, then he did it without complying with the conditions of approval of the conditional use permit which was approved by the City Council. Now frankly, it was an ongoing process. The property has always been used as a contractors yard so I don't frankly understand that comment. But I take issue with it. He is in compliance to the extent that the conditional use permit, that the points in the 1 1 Board of Adjustment and Appeals February 22, 1993 - Page 5 conditional use permit are applicable. Another point. It says although, I said, although your zoning code has now been amended, Mr. Lindbery's us has been modified or he's got a non - conforming use. The response was, the contractors yard never received a certificate of occupancy. Now I didn'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 operating his property as a contractors yard during this period of time. We've been through staff's, you know th entire file on this property and although staff has been out to the property on a few occasions, there hasn't been a great deal of activity b the city on the property. The last note that we find is October of 1990. October 23rd of 1990. So I submit that staff is not in a position, or nobody other than Mr. Lindbery is in a position to say with any certainty whether he operated the property continuously as a contractor's yard. Myll comment number 8 on the staff report, that staff continue to deal with Mr. Lindbery on the conditional use permit as recent as October, 1990. The response is, no records were found to support this statement. Well III submit Exhibits 6, 9 and 10 are in the official record. They do note activity by the City. By the City officials with respect to the property so I consider that evidence of activity on the property. But it is not ' our hope here or our point to take issue with each. I mean you can get down to the real picky issues and the nitty gritty of things and we don't want to do that. Mr. Lindbery wants to continue to operate his property as a conditional use permit. As a contractors yard. He feels genuinely that he has the right to continue to do that. He would like to put up th building that was started some years ago and hasn't been completed yet. We don't feel that the construction of that building was the, without which you don't get the conditional use permit. That's what the conditional use permit says. Obviously it was contemplated as one of the things that was going to happen in the use of the property but look at what a contractors yard is. You obviously can operate a contractors yard, without a building. It's probably a lot better for the business and for the city to have the building in place. I guess that's sum and substance of our approach. I would hope that you could see your way to recommend AI the City Council that Mr. Lindbery be recognized as an existing use, such as he is, and that we don't have to continue to debate or fight about the facts. The historic facts of this case. Thank you. I'll answer any 11 questions if anybody has any. Johnson: I have a question. Why wasn't the shell put up to begin with? I guess that's what, I've got a problem with that. Jeff Carson: Well, that gets into the business about the type of heating. He bought the shell. He owns the shell. He physically owns the shell. I� cost $34,000.00 and some dollars and he purchased it. At the time he was ready to put the shell on the property, he was going to put the heating units in the floor and pour cement and the Building Inspector said, no. You can't do that. They got into a debate. That's what stopped the project frankly. 1 1 Board of Adjustment and Appeals 1 February 22, 1993 - Page 6 Johnson: Does the floor have anything to do with the construction of the building itself? Why couldn't it be put on the foundation? Jeff Carson: Well the floor had to be poured before the building would be put. Johnson: But as I understand, you had the foundation there. Jeff Carson: No. Not the foundation. Just the footings. Johnson: Footings. I'll take it back. The footings are there. Jeff Carson: Well, the plan for the building included a cement floor and so you wouldn't, what he wanted to do was put the heat units in the floor. The Building Inspector didn't want the heat units in the floor and he couldn't, I suppose that debate should have been brought to the City frankly. Watson: So this debate occurred in 1988 or '89? Kirchman: '89. Jeff Carson: '89. 1989. Because the permit was issued in 1989 and that's when all this started. r 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: Well I think we're getting off the point. Jeff Carson: That was the point. Mr. Lindbery had an idea and he had the plan for the heating at that time and the inspector, were you the Inspector sir? Kirchman: I was the inspector that's noted on the 10/22/90 inspection report. Jeff Carson: No, no. But were you the inspector on site dealing with the heating? Probably not. Kirchman: There's no heating in the building so a heating inspector was never out. 1 Jeff Carson: Again, it's not probably worth the debate here. 1 1 Board of Adjustment and Appeals February 22, 1993 - 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. Johnson: Did he ever apply for a heating permit? It was required. Jeff Carson: I think, I'm not really that well versed on the permitting II 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? 1 Johnson: No, I'm not an engineer on radiant heat. Harry Lindbery: May I show them? 1 Jeff Carson: Well they have a copy of that. Johnson: We have a copy of that. Watson: Yeah, it's okay. We're just trying to get inspections and permits straight. Johnson: And I guess another question I have, why wasn't the fencing I 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. Johnson: 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 thing an you've done more harm with the fence itself. It's been our view of that, that the permit required screening, opaque fence, berming or landscaping II 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? 1 Al -Jaff: No they're not. 1 1 1 Board of Adjustment and Appeals February 22, 1993 - Page 8 1 Senn: Was a proposed screen plan ever filed at the time of the issuance of the building permit? 1 Al -Jaff: I have not found anything in the file. The only thing that has...is this one. Right here is the existing building that you see... driveway. The proposed building would have been here. Parking is right 1 here. But this is all we have. This is the only thing in the file. Senn: Okay. So there is no proposed screening plan? 1 Al -Jaff: No. Watson: Because the original intent was to enclose this, was it not in 1 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 1 permit? Al -Jaff: There is a limitation on the hours. It was between 6 :00 and 1 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? 1 Al -Jaff: There isn't a building. 1 Senn: There are no light sources? Al -Jaff: No. 1 Senn: Okay. Al -Jaff: There isn't in operation that we are aware of taking place. 1 Senn: Okay. Have they complied with the conditions of MnDot, including the installation of the right turn lane and left turn lane? Al -Jaff: No. Senn: Okay. Is there bituminous driveway, parking areas, and loading areas? Al -Jaff: No. 1 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 1 what it says but. Harry Lindbery: That would be septic systems. 1 1 Board of Adjustment and Appeals 1 February 22, 1993 - Page 9 Senn: That would be septic systems? Okay. Is there protection of the two septic system sites during construction? Well, they never constructel so that's a non - issue. Has there been installation of a holding tank? Jeff Carson: I think that would come at the same time as the building 1 itself. Senn: Okay. Is there a handicap parking space on the site? 1 Al -Jaff: No. Senn: Okay. Building must be sprinklered. Well, that's a non -issue if 1 the building hasn't been built. Contractors yards, okay zoning ordinance. Okay. Comply with all conditions and natural resources and watershed 1 district permits. Did they ever get those permits? Al -Jaff: There is a permit? Jeff Carson: Yes, we did. 1 Senn: Have they been complied with? 1 Al -Jaff: Well there isn't a building. Senn: No, I understand that. 1 Krauss: So no, they did not. Senn: No, okay. Have all the existing buildings been trucked off site 1 and disposed of? Okay. Erosion control plan shall be revised to include check dams. 100 foot intervals on all proposed drainage. Has that been done? Has the erosion control plan been revised? Okay. Bear with me a 1 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? 1 Al -Jaff: That hasn't... Senn: No heavy equipment and machines will be operated between 6:00 p.m.' and 7:00 a.m.. I assume that hasn't been a problem. No shipping activities will originate, so that seems like a non - issue. When I was 1 looking at this tonight I really got confused because I don't honestly know who wrote this in 1989 but it's probably one of the poorest written conditional use permits I've ever seen. Why, I mean there's no reference, it seems like we screwed up. I mean there's no reference in the 1 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. II Krauss: Except that there is reference to a building in the conditions and you don't... (There was a tape change at this point in the discussion.) 1 1 Board of Adjustment and Appeals February 22, 1993 - Page 10 ' Senn: When you look through all of this and shake it all out, what we're here is not really for an ordinance interpretation question. What we're here is we're here to revoke a conditional use permit which has been in violation for quite some time and the conditional use permit is very ' specific on that. I mean it says, this shall be done and if I go down this list, almost none of it's been done. Why aren't we simply revoking the conditional use permit? ' Krauss: Well that's been the subject of a lot of discussion and maybe the City Attorney can explain why it's here and what will happen next. ' Elliott Knetsch: The reason it's proceeding in this manner is because I think we've got a site plan that calls for the construction of the building and the building is a part of the conditional use permit. We wouldn't have granted him a permit without the building. While the permit probably should have said that, with the site plan that Sharmin just had on the board, I think it's clear that the building's part of it. And even if you look at the last date submitted by the applicant, which is October of 1990 as having staff working on this as a valid permit, it's still been over a year since any activity whatsoever has taken place on that property in terms of completion of the building. So what happened here is not ' unusual. One day before the one year period was up, he got a building permit. Staff worked with that building permit for approximately a year. Then it went dead. So the building lapsed for a period of greater than a ' year. Secondly is the issue of use. And I would agree with the applicant's attorney that simply not completing a building does not mean he wasn't conducting contractor yard activities out there. I do agree ' with that statement. Based on our ordinance definition of contractor yard, if he was using it as a contractors yard, even though the building was not completed, that would be valid use and the use would not have lapsed so that the permit lapsed. However again, I think we'd find, if we ' asked Sharmin and we asked Steve Kirchman, if staff has been out to that site since October of 1990, and whether any contractors yard activity has been taking place, I think their answer would be no. Nothing's been going ' on. Steve Kirchman was out there because he had wanted to check and insure that there was an active building permit. Things stopped. That permit went dead and so he went out there periodically to check to insure that building was not taking place without a valid building permit. So he ' was out there a couple of times and he has some logs that back up the dates he was there. It's also my understanding that Sharmin and perhaps other Planning staff have looked at that site and have gone there for the ' purpose of looking at that site, as well as viewing it as they go around the city looking at other sites, and there has been no activity going on since that time. So staff has taken the position that based on our ' existing ordinances, the permit lapsed for non -use. Senn: I understand that all. I've read all that before you just repeated it, but the question still remains. Why are we not revoking the conditional use permit on the basis that they're in violation of their conditional use permit? 1 Elliott Knetsch: There's nothing to revoke. The permit is gone already. Senn: So that's your position? Board of Adjustment and Appeals February 22, 1993 - Page 11 Elliott Knetsch: That's my position. , Senn: So 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 I 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. 1 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 Councilrnember Senn is this. The things that you pointed to, all of the construction and the parking and I 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 facil is is that the applicant ran into a loggerhead over the construction of the building. Nobody in their right mind would pay $34,000.00 for a 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 12 Jeff Carson: Well you would hope so but keep in mind we've been under criminal penalty or prosecution since. ' Watson: '92. Jeff Carson: Yeah, for a year. So I mean that's what I meant when I ' said periods of time. Watson: Then we have 3 years. ' Jeff Carson: Periods of time come and go here and they seem like long, incredibly long periods of time. You can understand them if you take them one date to the next date to the next date. I'm not saying that this is the ideal by any stretch. Johnson: Steve, could I ask you a question? Did at any time they come in for a heating permit? ' Kirchman: No. On my inspection of 10/22/90, I asked that they submit a floor plan, plumbing plan, HVAC plan and sprinkler plan so that they could ' continue with the heating and do as they wish and also asked that they set up a meeting with the Planning and Building Department to clear up these misunderstandings and we never heard from them again. Krauss: Mr. Chairman, the reason why it's brought to you here tonight is • for an interpretation of the Code which is in your area. The Code states that if substantial construction has not taken place within one year of ' the date in which the CUP was granted, the permit is void. We've determined that the permit is void. The applicant's contesting our determination. I mean what it boils down to is, who's position do you ' agree with. Johnson: I understand what you're saying. Jeff Carson: And you can readily understand why the parties are taking the different positions but look at that section of the Code contemplates that you have to have a building in order to have the permit. In other ' words it says, construction isn't within a year you're out. To operate a contractors yard you don't need a building. ' Krauss: That's not true. I mean this was approved with a set of conditions. The applicant's attorney seems to be arguing that conditions are irrelevant as long as you manage to squeak something on the property and go do it anyway. This is a package of conditions. It's typical of ' the package of conditions that we adopt with every CUP that we approve. You expect compliance with all the conditions. ' Senn: And the Code says. Krauss: If substantial construction has not taken place within one year of the date in which the CUP was granted, the permit is void. Senn: Okay, so let's get off the issue of the building which may be fairly vague. Okay. Has any of the other construction, other than the 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 buildinli 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. Jeff Carson: I'm saying the building doesn't have to be according to the literal terms of this permit. But we want the building. ' 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 I 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. Jeff 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. ' Johnson: I feel is there was a dispute over the heating, I would have asked, went to City Hall and asked to have gone on the agenda to 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. Jeff Carson: Well to back off the literal reading of this and that for a moment, I would say this. I would hope that if at a point in time the 11 1 Board of Adjustment and Appeals II February 22, 1993 - Page 14 1 City staff or a city was going to tell somebody who's operating 40 acres of land as a contractors yard, that unless you complete or unless you do something within 6 months or 30 days, or whatever it is. We're telling 1 you. We're going to shut you down or we're going to void your permit. I would expect that. Maybe it's that the government has to be a little more on it's toes. I don't know. But it seems unfair to come after the fact and say, I guess it's over. You don't have a chance to follow through. 1 You don't have a chance to put that $34,000.00 shell that you bought on the property. II 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. I Senn: It's immaterial. It's not even an issue in the permit. I 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. 1 Jeff Carson: Yeah. Watson: Which tells me there was intent to build a building in 1989 which 1 is not there. Jeff Carson: I can't try to convince you that you're wrong in your I 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 III 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 I has expired? Al -Jaff : Correct. 1 Watson: That's basically the action that you are recommending? Krauss: Well I guess the action is basically to agree or disagree with 1 staff's interpretation of that section of the Code. Watson: How would that be stated? I mean it says here, find the I conditional use permit has expired. If you want us to have interpretted the Code, exactly how would that be put into a motion? 1 1-,Jaff: That same conditional use permit is void. Elliott Knetsch: I think you can just have a motion that you concur with staff's interpretation of the ordinance as applied to this situation. I Senn: If we void the conditional use permit, does he have the option of applying for another one? 1 1 Board of Adjustment and Appeals February 22, 1993 - Page 15 1 Al -Jaff: Contractors yards are not a permitted use in the A2 districts ' any longer. It was switched from conditional use to interim use, I believe it was in 1990 and then contractors yards were deleted from the ordinance. Senn: But he could rezone the property. II Al -Jaff: To? 1 Senn: Something that would allow it. Krauss: No, not really. There's very, well I suppose you can go down toll the. Watson: Did you see the property Mark? 1 Senn: Yeah. Krauss: We do have a business fringe district. I Watson: That includes Gedney and that storage. II Krauss: No, Gedney is actually industrial but Gedney is on sewer and water coming out of Chaska. The only other non - agricultural, non single family uses down there are in the business fringe district. The Planning" Commission has been very relunctant to see any more land zoned BF. Senn: No, I understand. I'm just asking if it's an option that the II 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, II industrial or. Krauss: Well it does allow things like cold storage buildings. I'm not II sure that it allows the contractors yard. Al -Jaff: It won't allow contractors yard. 1 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. 1 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? 1 Watson: He's free to apply to do whatever he wishes. Jeff Carson: Could I make a point, one further point please? My Exhibit, 11 is a copy of the April 8, 1989 point in time when the Planning 1 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. I mean it's fine to say well we published. We met the technical, literal requirements of the law but the reality is that in all likelihood no contractor operating a contractors yard read that. So what happened here is that the gentlemen said, there's nobody here. We're taking action to remove contractors yards from agricultural zones and nobody's here. Why is that? Has anybody been notified? The answer was no. Well why not? Well, they're going to be grandfathered. So that took care of it. The problem is for someone in Mr. Lindbery's situation, had that been brought up at the time or had it ever been brought to his attention that unless you get this thing completed to our satisfaction, within a certain period of time, it's over. In effect it just happened and he didn't know it. That's really what happened. According to the interpretation that staff has. And I understand how that happens but it doesn't seem to, you know it kind of doesn't pass the fairness test if he really didn't know. If he had been invited to that '89 meeting, or that period of time in the City's history where you were going to take them away, and he said what about me? Or you know, at that point he's going to say what about my operation or am I grandfathered or what about it? He's either going to learn he's going to do this or else, or that he is. One of the two. And that's at least in part an answer to the real world. Answer to your question of how much time, all this time had passed. Could have been remedied pretty easily right here. I don't know how many contractors yards there are in Chanhassen. Can't be that many. There can't be that many. I mean if you're going to take those zones and deal with them, you must have a file where all those contractors are listed. Just tell them that you're dealing with the zoning that effects the location of contractors yards and I don't think we'd have had this problem. And I guess I'd ask you to perhaps not be quite so technical with the applicant. Say look, get your application in. Get it done within a specified period of time or else. Watson: But we. Senn: Already been done. Jeff Carson: No. Watson: That's been done. I mean everything has a date. Senn: Can I make a motion? Johnson: First I need a motion to close the public hearing. Senn: I move to close the public hearing. Watson: Second. Senn moved, Watson seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. 1