1995-04-11Mound City Council Minutes
April 11, 1995
MINUTES - MOUND CITY COUNCIL -APRII. 11, 1995
The City Council of Mound, Hennepin County, Minnesota, met in regular session on Tuesday,
April 11, 1995, in the Council Chambers at 5341 Maywood Road, in said City.
Those present were: Mayor Bob Polston, Councilmembers Andrea Ahrens, Mark Hanus, and
Liz Jensen. Councilmember Phyllis Jessen was absent and excused. Also present were: City
Manager Edward J. Shulde, Jr., City Clerk Fran Clark, City Attorney Curt Pearson, City
Engineer John Cameron, Finance Director Gino Businaro, Fire Chief Steve Erickson, Building
Official Jon Suthefland, City Planner Bruce Chamberlain and the following interested citizens:
Dave Schmidt, Donald & Geraldine Swenson, Stan Drahos, Sharon Cook, Jerry Peitrowski, Ken
& Sally Custer, Jim Bedell, Steve Bedell, Paul & Pat Meisel, J. Jesberg, D. Smith, R.
Williams, Jim Koch, and Doug Smith.
The Mayor opened the meeting and welcomed the people in attendance.
The Pledge of Allegiance was recited.
1.0 MINUTES
MOTION made by Jensen, seconded by Hanus to approve the Minutes of the March
28, 1995, Regular Meeting, as submitted. The vote was unanimously in favor.
Motion carried.
1.1. PUBLIC HEARING: TO CONSIDER THE MODIFICATION OF A
CONDITIONAL USE PERMIT TO ALLOW THE OPERATION OF AND
ADDITIONAL MINOR AUTO REPAIR BUSINESS KNOWN AS GLASS PLUS AT
5533 SHORELINE DRIVE (ARCO AUTO & MARINE) LOCATED IN THE B-1
CENTRAL BUSINESS DISTRICT.
The Building Official explained that the owners have applied for a Conditional Use Permit to
allow the operation of a minor auto repair business in conjunction with the present business,
Arco Auto and Marine. Glass Plus has 3 employees and does vehicle glass replacement as well
as well as residential and commercial glazing. Staff and the Planning Commission reviewed the
request and have recommended approval with conditions.
The Building Official stated that a letter was received after the Planning Commission Meeting
from Curtis Johnson, 5545 Shoreline Drive, (adjacent business owner), expressing concern over
previous violations of the Conditional Use Permit. He also suggested an additional condition
be added to the proposed resolution dealing with the parking of large boats blocking the view
of his property and his outdoor lighted sign. The Building Official did not have a problem with
adding this condition. He showed the area in question with cross-hatching on the plan.
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April 11, 1995
Councilmember Hanus stated that we are looking at a CUP for Glass Plus but, the cross hatched
area is not assigned to Glass Plus, it is assigned to Arco.
The City Attorney stated you can only look, from a zoning standpoint, at the property as a
whole. He stated you cannot look at this as two property owners because there is only one
property.
Councilmember Hanus questioned prior CUP allowance of these boats in this area for sales
purposes. He asked if this new CUP would override the previous CUP's that have been given?
The City Attorney stated this is an amendment. All the prior CUP's are being amended and as
this proposed CUP is written, this would no longer be allowed.
Councilmember Hanus asked for a breakdown in percentages of auto work, commercial glazing,
residential glazing, etc.? Applicant Ken Custer, stated he does not have those figures at his time
but they are planning on increasing the auto glass business. Currently, the majority of what they
do is publishing a newsletter, representing about 17% (12% is auto glass); glazing represents
about 44 %; and labor is catagorized as the rest.
Mr. Custer stated that the portion cross-hatched is new to him today. He stated he does have
to give Vic some place for his boats. He had heard about the problems with storage of boats
across Auditor's Road and in the CBD parking lot and this crosshatched area was his solution
for those problems.
Councilmember Iensen asked the City Attorney the following: "The way this is set up, in a year
the Arco Century place is supposed to cease and desist. What if it doesn't?" The City Atto, ney
stated, "I don't think you take a use and divide the zoning between two people. Zoning is use
of the property. It doesn't relate to the people. I don't understand how you are going to
enforce this if, for some reason, they decide they are going to go for five years. You are not
talking about the people who are buying or the people who are selling, you are talking about
property. You don't control people, you control uses of property and that is the only thing you
have control over. As I understood this, what you are doing is amending what is an existing
CUP to allow an additional use on the property. It has nothing to do with the people who are
buying or the people who are selling." Councilmember Jensen asked if it was possible to issue
a CUP that has a portion of it under a sunset clause that says we will issue a CUP for this
property that allows the boat repair and whatever else it is for a period, up to a certain point,
and then the CUP is automatically changed so that it cannot be used for that anymore? The City
Attorney stated you could issue the permit for one year and review it at that time, but what
effect we would be able to have at that point, if they don't live up to the representations that
were made, would be difficult.
Councilmember Jensen stated that since we have not been able to enforce the CUP that is
currently in place, she is concerned about this one.
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The Mayor opened the public hearing. Paul Meisel, 5501 Bartlett Blvd., (member of the
Economic Development Commission). He reminded the Council that in their recommendations
there are some changes in Auditor's Road that would impinge on that particular property to the
point where a portion of it may have to be bought by the City. The Council stated they were
aware of that. The Mayor closed the public hearing.
The Council discussed putting another condition in the CUP which would limit the height of
boats placed in the cross-hatched area. They further discussed having all the prior conditions
in previous CUP's be complied with before issuance of this CUP. The Council discussed the
fact that the way this resolution reads right now, there are no guarantees that the other business
will disappear within a year.
Councilmember Hanus stated he is all for this thing happening but he wanted to make sure that
the neighbors concerns are addressed and that the new buyer can live with the conditions of the
CUP. If that means restricting that area from storage or moving that area to another area of the
property for storage or restricting the height of what is stored there, are all options.
The Council discussed the fact that this letter of objection was just received and was not seen
by the Planning Commission. They also discussed previous CUP's and the conditions that have
not been met by the current business on the property.
The applicant stated that Arco is in forclosure and under his purchase agreement, they have to
vacate the property, by January 1996, so that will resolve the problems. He stated he does have
to leave Arco some space until that time. He then stated Arco has to leave 12 months from
when this CUP is granted.
The Council discussed leaving things as they are for one year and then assessing the situation
at that time.
Hanus moved and Ahrens seconded the following resolution:
The City Attorney suggested the following language be added to the proposed resolution of
approval. 'This permit shall be effective for one year, at which time the property owner will
apply for and be subject to a reapplication and review because of representations made by the
applicant that the property will be brought into conformance with all previously approved
permits and conditions established by this Council. The reapplication fee shall be waived." The
Council agreed.
RESOL~ON//95-38
RESOLUTION TO APPROVE A CONDITIONAL USE
PERMIT TO ALLOW THE OPERATION OF A
MINOR AUTO REPAIR BUSINESS KNOWN AS
GLASS PLUS IN THE B-1 CENTRAL BUSINESS
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April 11, 1995
ZONING DISTRICT AT 5533 SHORELINE DRIVE,
AUDITOR'S SUBDIVISION//170, LOT 5 AND THE
WESTERLY 50 FEET OF LOT 6, PID//13-117-24 33
0078, P & Z CASE//95-07
The vote was unanimously in favor. Motion carried.
1.2
APPROVAL OF PROPOSED RIGHT-OF-WAY PLAN - AUDITOR'S ROAD
IMPROVEMENT PROJECT.
The City Manager explained that at the last meeting the Planner brought the Council up-to-date
on the Mound Visions Program and asked that the Engineer prepare a preliminary right-of-way
plan to be submitted to the State for their approval. The City met with Hennepin County
regarding it's plan for Auditor's Road and the eventual relocation of County Road 15. He
reported that the County has indicated that the earliest the County Road 15 project could be
considered under a normal funding split is the year 2000. He stated the County could move the
project to an earlier year if alternative funding was available or the City provided all the funding
for the project. The Council discussed the fact that the City would be responsible for all the
costs in acquiring the right-of-way for the County Road 15 relocation. The construction costs
would be on a cost sharing basis with the County. There is the possibility of applying for an
ISTEA grant to help pay the city's portion of construction costs in the relocation.
The City Manager presented a printout of a possible General Obligation State Aid Street Bond
issue in the amount of $600,000 and assuming a net interest rate of 5.159%. He pointed out
that these rates show 1995 bond issuance and would have to be adjusted accordingly at time that
the bonds would actually be sold.
The City Engineer submitted a letter, dated April 4, 1995, regarding State aid rules to determine
the extent of participation on certain items as they pertain to the proposed construction of
Auditor's Road. He further reported that the State Aid office is currently in the process of
revising some of the rules and any changes made should become effective by the end of this
year. Any changes would affect this project. He reported on the following: lighting,
sidewalks, engineering costs, storm sewer, right-of-way, landscaping, environmental issues and
traffic signals.
The City Engineer then presented the right-of-way plans for Auditor's Road. The City Manager
stated that based on what has been designed for Auditor's Road, the project could survive on its
own even if the relocation of County Road 15 did not come about.
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April 11, 1995
The City Engineer informed the Council that approving the right-of-way plans for submission
to the State Aid office does not obligate the City to do the project. All the City is asking for
is the State Aid office's approval of the alignment and allows the City to proceed, if they wish,
to acquire property. The approval process would take approximately 4 to 6 weeks.
Ahrens moved and Hanus seconded the following resolution:
RESOLUTION//95-39
RESOLUTION APPROVING RIGHT-OF-WAY PLAN
FOR AUDITOR'S ROAD & BELMONT LANE
The vote was unanimously in favor. Motion carried.
Paul Meisel, Chair of the EDC, thanked the Council for proceeding with the plans.
1.3
APPLICATION FOR PUBLIC LAND PERMIT. //43520, DONALD AND
GERALDINE SWENSON. 4887 ISLAND VIEW DRIVE: TRIM VEGETATION
ON DEVON COMMONS
The Building Official explained the request. The Park Commission and Staff recommended
approval.
Ahrens moved and Jensen seconded the following resolution:
RESOLUTION g9~40 RESOLUTION TO APPROVE A SPECIAL PERMIT
TO ALLOW TRIMMING OF VEGETATION ON
DEVON COMMONS ABUTTING 4857 ISLAND VIEW
DRIVE, LOT 5 & 6, BLOCK 14, DEVON, PID//25-
117-24 11 0039, DOCK SITE//43520
The vote was unanimously in favor. Motion carried.
1.4
CASE//95-11: JIM KOCH. 4849 ISLAND VIEW DRIVE, LOT 3, BLOCK 14,
DEVQN, PID//25-11%24 11 0036, VARIANCE FOR ADDITION.
The Building Official explained that the applicant is seeking a variance to recognize the existing
nonconforming setbacks and hardcover in order to construct an attached garage and a second
story addition on the house. He reported that although the proposed garage is nonconforming
to the required 20 foot front yard setback and 6 foot side yard setback, there does appear to be
hardship and practical difficulty with this site:
The property has limited access and side yard area due to the location of the
dwelling.
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April II, 1995
2. There is a City utility easement on the lakeside that limits the buildable footprint.
3. There is no other reasonable location for a garage.
The Planning Commission recommended denial of this request after much discussion. The
Building Official explained that there are other cases similar to this, but they had additional
boulevard between the lot line and the street. There is a comparable case right next door to this
property.
Councilmember Hanus stated that in his opinion the original proposal of a 3 foot setback from
the street would have been approved by the Planning Commission, but the applicant realized
when he got to the meeting that in order to have a two car garage he needed the 1 foot setback.
The Council agreed that a one car garage is not functional.
MOTION made by Ahrens, seconded by Jensen directing staff to prepare a
resolution granting a variance for the proposed garage with a 1 foot setback to
Island View Drive and the conditions recommended by Staff. The vote was
unanimously in favor. Motion carried.
1.5 BID AWARD: FIRE TRUCK, TRIPLE COMBINATION PUMPER
The City Manager explained that this bid was advertised and 5 organizations requested
specifications. Only 1 bid was received from Custom Fire Apparatus in the amount of
$204,950. The Fire Department has reviewed the bid and recommends approval. Fire Chief
Steve Erickson was present and stated that he was disappointed that only one bid was received
and contacted several of the companies who were sent specifications and they indicated that they
had chosen not to bid because they did not want to construct the truck the way it was designed
and several companies stated they were already very busy.
Rick Williams, of the Fire Department, explained that this truck was designed to be very
functional and some of the items that were added to do that drove the cost up from the original
estimated cost of $185,000. He further explained that this bid did come in a little over what was
expected but the Fire Department feels they can live with this because they had planned to get
two vehicles for the $250,000 that was budgeted and still feel this can be accomplished by taking
one of the existing pumpers which is outdated and refurbishing it into a tanker.
Hanus moved and Ahrens seconded the following resolution:
RESOLUTION//95-41
RESOLUTION TO AWARD THE BID FOR THE FIRE
TRUCK, TRIPLE COMBINATION PUMPER TO
CUSTOM FIRE APPARATUS IN THE AMOUNT OF
$204,950
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The vote was unanimously in favor. Motion carried.
COMMENTS AND SUGGESTIONS FROM CITIZENS PRESENT.
There were none.
1.6
REOLrEST FROM SENIOR COMMUNITY SERVICES RE: LIFTING CAP ON
CDBG ALLOCATION TO PUBLIC SERVICE ACTIVITY PROJECT
The City Manager explained that the City has been informed by the Hennepin County
Development Planning Office that they are required to enforce a rule established by the
Department of Housing and Urban Development regarding limiting the funding for public service
activities with the CDBG program to 20% of the total allocation. That means the 1995 CDBG
allocation of $72,239 could only allocate $14,448 to public service activities. The City had
proposed $42,700 toward these activities. The programs affected are Westonka Community
Action Network (WECAN), Westonka Intervention, Senior Community Services and Community
Action for Suburgan Hennepin County. The Council will have to figure out a way to reallocate
the money by the next Council Meeting.
He further reported that Ben Withhart, Executive Director of Senior Community Services has
asked the Council to approve a resolution requesting that Congress and the President of the
United States remove the 20% mandate and allow more local flexibility in calculating allocations
for CDBG funds to be allocated towards public service activities. Mr. Withhart has called a
meeting of area mayors, city administrators, and managers for Thursday, April 13, 1995, at 7:30
A.M. at the Westonka Senior Center to discuss this matter further.
The City Manager then submitted a list of CDBG eligible activities for the Council to review
before the next meeting and asked that the Council approve the proposed resolution from Mr.
Withhart.
Jensen moved and Hanus seconded the following resolution:
RESOLUTION g95-42
RESOLUTION REQUESTING TIlE U.S. CONGRESS
AND PRESIDENT TO REMOVE THE 20% CEILING
ON THE ALLOCATION OF COMMUNITY
DEVELOPMENT BLOCK GRANT (CDBG) FUNDS
TOWARDS PUBLIC SERVICE ACTIVITY PROJECTS
The vote was unanimously in favor. Motion carried.
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1.7 PAYMENT OF BILLS
MOTION made by Hanus, seconded by Polston to authorize the payment of bills as
presented on the pre-list in the amount of $107,659.71, when funds are available.
A roll call vote was unanimously in favor. Motion carried.
1.8
ADD ON - CASE //95-09: STEVEN BEDELL, 4801 SHORELINE DRIVE,
SKARP'S EAST LAWN. LOTS 1.2 & 3, Pm//13-117-24 44 0052, VARIANCES
TO ALLOW SNACK SHOP TRAILER
The City Manager explained that Councilmember Hanus had called him on Friday and asked if
this could be placed on tonight's agenda. The agenda has already been prepared and was being
printed. This item was on the Planning Commission Agenda last night. This was to be a
discussion item. Councilmember Hanus' concern was that the next meeting is heavy, having the
Board of Review and a number of other items. Information on this item and draft Minutes from
the Planning Commission Meeting were given out.
The Building Official reviewed the Planning Commission Minutes. At the March 13th Planning
Commission Meeting this item was tabled with direction to staff to identify all the potential
variances that apply to the case. They also asked the applicant to respond to all the applicable
variances that staff would identify. The City Planner identified the variances and submitted
those, in letter form, to the applicant. The applicant submitted a reply which is in the
information handed out this evening.
The Staff report was prepared and submitted to the Planning Commission listing the applicable
code sections and related variances and additional staff comments that were compiled after
reviewing the applicant's response to the variances. The Staff recommendation was to deny the
request based on the previous Council's action of almost 1 year ago and also from the Staff's
perspective there was no change in the application. The Planning Commission had considerable
discussion on this item and it was their consensus that there was no hardship or practical
difficulty shown and therefore no basis for variance approval. There were comments pro and
con. The Planning Commission did recommend denial.
Councilmember Hanus stated that there were three things, discussed last night, that stuck out in
his mind:
1. Potential channel congestion;
2. Too many variances attached to this item; and
3. Establishing a time limit on it.
Those were the 3 primary negatives that he heard.
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Councilmember Hanus: "Before we get too far into the process as it has been proposed, there
are some things I'd like to talk about and ask a couple of questions about because my personal
opinion is we're kind of going the wrong way on this thing. Here's how I see it right now. We
have a piece of commercial property. There happens to be a house on the property and that
house being on a piece of commercial property, is a legal nonconforming use. Eventually, we
would like to see this property turned over to commercial to match the zoning. My opinion is,
for that switch to happen in one feld swoop, is highly unlikely. I asked Mark Koegler at a
Planning COmmission Meeting what his opinion was, as a Planner, to that issue, and he tended
to agree, the likelihood is low that it would switch over in one big jump. I think we have an
opportunity here. I also think we have the perfect vehicle to allow this kind of activity and yet
maintain a significant amount of control over the business, over potential problems, and things
of that sort. The vehicle I am talking about was discussed last year and Mr. Koegler had
indicated last year that it's not applicable and what I'm talking about is the Transient Merchant
License. I went back and looked in the Code Book and based upon everything I'm reading it
matches this situation perfectly. The description of the transient merchant seems to match the
conditions we are looking at exactly. There still maybe an issue of a couple of variances in
there. There still may be a land use issue but I would highly question whether all of those
variances are applicable. I don't know how we want to go about this thing. In Mark's letter,
he had 17 items, Sections of the Code and then addresses the BedeWs responses to those issues,
and I looked at each of those and I think I have justified, in my own mind, where I stand on
each of those issues. I think I came up with maybe 3 variances that, I think, apply. The contest
here, is going to end up being whether or not setbacks apply to a mobile trailer or not and I
know of numerous situations in the Code that they don't, be it a motor home or a storage trailer.
There is also the issue of use and I'm sure we'll get into that discussion. I'm sure Mr. Pearson
has plenty of input on that. There are two issues in my mind. The first is whether or not the
Transient Merchant License is valid and if it is, then the second issue is, what variances still
may apply and which may not?"
The Mayor suggested that we address the Transient Merchant License first. Councilmember
Hanus agreed and stated he thought this came from Mark Koegler last year. He then asked the
City Attorney his opinion.
City Attorney: "I think it's just the opposite. You're talking about land use, you're talking about
property. I haven't read through this material, other than just reading the minutes. I don't think
there's any change in the law. I don't think there is any change in the circumstances than there
is from Iast year so I don't think that my opinion can change in any way, shape or form. I just
don't think this fits the ordinances or the Code of the City. You've got an expansion of a legal
nonconforming use. You've got the fact that your having two principal uses on the same parcel
and all the things that were set forth in the denial and findings that the Council did last year.
I think your Planner and myself both reviewed this last year and I don't see that there is any
difference. I'll be happy to respond to any specific questions, but I think you have to start with
use."
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April 1 I, 1995
Mayor Polston: "But the fact of the matter is, this is happening on other properties."
City Attorney: 'That is the wrong way to approach a subject, that this is happening somewhere
else. Let's talk about where it's happening. Did they apply for a permit? Has a permit been
granted? Is something happening that is contrary to the ordinance? I don't know.'
Mayor Polston: "If you're going to talk about land use, the use is occuring on other properties
within the City. The exact same thing that these folks are asking for."
Councilmember Jensen: "For my benefit and for those watching this one, can you provide what
those exact same properties are."
Mayor Polston: "Al & Alma's for one."
City Attorney: "No sir, that's not at all comparable. A1 & Alma's is a nonconfoming use that's
been there since the 1930's. It's been a problem to the neighborhood for the 30 years I've been
in the city and it has been a problem that has been resolved as best it can but legally there isn't
anything we can do to get rid of A1 & Alma's. Now you're creating something. If A1 &
Alma's came in wanted to expand or do something of that nature, they couldn't be allowed to
do that.'
Mayor Polston: "But, that's not what has happened. It has expanded and as much as you don't
want to admit it, it has happened."
City Attorney: "Well, the only thing that I know of, in the time that I've been here, is the use
of the property on the lake for the boat permit. That is the only thing that I know of that has
happened. The Conditional Use Permit was amended when they bought the property across the
street and at the City's request that was bought for parking because Piper Road was a problem
for the residents. So I don't know of what you speak. A1 & Alma's, the physical structure, has
not been expanded..
Mayor Polston: "The physical structure has not been expanded, but there have been additional
nonconforming uses that the Council has approved. I'm not in favor of not having those
approved. I think A1 & Alma's is a great asset to the City of Mound and I'm not saying
anything to be detrimental to that business, but if you buy a boat and double the size in the
number of people that use the boat, is that an expanded use?"
City Attorney: "It's not an expanded use of the physical facility of the restaurant. Now the
Council has reviewed each one of those intrusions on the lakeshore as Al & Alma's bought
property which basically is being used for dockage. I'm not in a position, without going back,
to argue that because the City Council looked at each one of those things and worked their way
through those problems. I don't think that it is fair to indicate that there are others who do
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something and therefore it's justification to do something that is to create the same kind of a
problem the City's been trying to get rid of."
Mayor P01st0n: 'If you interpret the intent of the Zoning Code, it is to remove existence, over
time, nonconforming uses, but if we remove from use all the nonconforming uses from Mound,
we wouldn't have Mound left anymore because it is virtually impossible for most of the people
who live in this town to do anything with any piece of property they have, without getting a
variance or have a nonconforming use.'
Councilmember Hanus: "That's part of where I'm going on this too. I'm arguing this as a first
step toward conformity on this property. The use unto itself is conforming. Other aspects about
it may not be but, the point is, this is a permitted use in that zone. Granted it is a very small
business, but a step in the fight direction. The applicants are willing to make some changes in
the property to move it into a little bit more of a conforming position. They also talked in terms
of offering some services that clearly are a public service, i.e. garbage collection, perhaps
recycling, things of that sort. I have a question too. Curt, can you tell me how the Transient
Merchant License does not apply in this case?"
City Attorney: "I have not looked at the Transient Merchant License, but it wouldn't make any
difference what it is, the first thing that you have to look at on anything, when you are talking
about the use of property, is, is that a permitted use in that district? Now, all I can tell you is
this was looked at last year. It was looked at by the Planner, the Council, and a decision was
made, I think unanimously by the Planning Commission last year, and I see it was 6-2 last
night."
Councilmember Hanus: "The Planning Commission did not make a recommendation last year.
They referred it to your office for some information and it never came back to them, so they
never got an opportunity to make a recommendation last year."
City Attorney: "O.K. but the Council did vote to have a resolution of denial prepared and made
findings on that. The licensing thing is entirely different. You still have to have the right to
have the use before you can license. For instance, you have a restaurant which needs to have
a zoning classification before it can be there and then they have to get a licenses, whatever those
licenses may be. But, those two are separate things, one is a licensing provision which is one
police power, the other is a zoning matter and that goes with land use. I don't think, Mr.
Mayor or Mr. Hanus, with due respect, that there is very much that the City Planner or myself
can tell you other than to give you our professional opinion as to this and as to the ordinances
of the City. Now, if the Council decides that they want to disregard our advice, they certainly
have the right to do so."
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Councilmember Hanus: "I think that clarified a couple of points because the use issue, the dual
use issue or the expansion of the nonconforming use, the way I look at it is it's one or the other,
one is tied to the other but they're not two separate issues, they are really one because if you
consider it an expansion on the existing use, that in itself covers it. The dual use is that, they're
one and the same really. They are not separate potential variances. You're right, we have to
determine whether or not we feel that that use, on that property, first of all is permitted, and I
think the ordinance is clear that it is, now we have to determine whether or not the required
variances permitted are justified or not."
City Attorney: "Mr. Mayor, let me give you an example of a case that the City has spent
thousands of dollars fighting, and it's a case where there were two properties, both of which are
permitted in an area, which are residential properties. It's the Zuckmann property, which was
in court for close to ten years to try to get them to conform, two buildings on the same property,
they were both residential, both being used. The Councils have consistently indicated that
they're not going to allow two uses on the same parcel and to the point where the Zoning
Ordinance indicates that you can't do this, the Council has spent the City's money and the
public's money to bring that into conformance. Mr. Mayor, with all due respect, I have to say
this to you and Mr. Hanus, if you think that the nonconforming use section of the Zoning
Ordinance is going to bring this City into conformance in a matter of a couple of years, that's
not the intent nor is it understood that it's practically possible. But what you have to do is look
and hope that fifty years from now the City has reached some kind of a goal and in the period
of time that I have been here there have been over 600 homes that have been removed that were
nonconforming uses in this City. 300 of them blew down in the 60's, most of them on the
island and those things had to be rebuilt in conformance but it has been the goal of'every
Building Inspector, including the one you have now, to bring these properties into conformance
and to have everybody using the same set of standards. You can't operate a government or a
zoning ordinance on the basis that some people can do something and others can't, because
you're showing special treatment to people. That's not equal protection under the law and in
my judgement you are being totally unconstitutional if you just jump off and on a special issue
you're going to give special preference. That is my opinion."
Councilmember Ahrens: "I understand how a residence is not a permitted use on the property
the way it's zoned. If a residence wasn't there, the proposed use is a permitted use?"
City Attorney: "No. The proposed use, as I understand it and maybe Mr. Sutherland can help
me, I don't know whether the proposed use is permitted or it needs a conditional use, because
I'm not that conversant with it. But, it has a number of requests which indicate variance
necessities. Is that correct?"
Building Official: "Yes."
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Councilmember Ahrens: "So it is a permitted use or it's permitted only by conditional use
permit?"
Building Official: "The commercial use of the property is permitted, however, variances have
to be issued in order to allow it to be."
Councilmember Ahrens: "Variances such as some of the things that Mark Koegler indicated in
his memos, ie. size of parcel needs to be so many square feet, etc., is that what you are talking
about?"
Building Official: "Yes, but then there is also the fact that the proposal is not conforming to
the ordinance in the manner that it's proposed, i.e. doesn't meet setbacks, etc."
City Attorney: "Mr. Mayor, if I could try to respond to Councilmember Ahrens. You have
actually three types of uses in every district. You have uses that are permitted which means
people can come to City Hall and as long as they meet setbacks they do this they do that, i.e.
build a house in a residential area. If it's a 10,000 square foot area and they meet the setbacks
and have the square footage, etc., they don't come to the Council they go to the Building Dept.
and permits are issued. Then you have other uses, which are catagorized as conditional uses and
the uses that may be allowed in any district, but there is something about them that needs special
attention and possibly conditions before they will be allowed. Those are called conditional uses
and those have to go through the planning process, Planning Commission and City Council and
have staff review. Then you also have auxilliary uses, such as garages, home occupations
subject to conditions."
Councilmember Jensen: "What is this use called and is it permitted or isn't it because I know
commercial uses are allowed in the B-2 zone? I looked through my Zoning Code and it doesn't
have anything called 'Seasonal Snack Shop', so I was trying to figure out what this thing was?"
Councilmember Hanus: "It was reported as retail sales and that is a permitted use."
Building Official: "The City Planner identified the snack trailer as an intensification of the
existing nonconforming use. I don't have my Zoning Code here but I don't believe it was listed
as a permitted use."
Councilmember Jensen: "The problem I'm having here is, clearly there's a house on it and
putting a business on it is not permitted, so that permitted use goes away, so back to Andrea's
original question, take the house off. Can you put the seasonal snack shop on the vacant piece
of land? That's the question. Mark thinks it's retail sales and I have a hard time with retail
sales, but it didn't fit restaurant."
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Councilmember Hanus: "As I recall that's the way the report went, but I don't have it right
here in front of me."
Councilmember Jensen: "I thought maybe it was drive-in or convenience."
Councilmember Hanus: "I read it in one of the reports and it was being reported to us as being
retail sales. It was in a staff report but I don't recall if it was this week or two weeks ago or
which one it was."
Councilmember lensen: "O.K. that's interesting because retail businesses are defined in the
Code as stores and shops selling household goods over the counter and I'm not sure it would fit
under that one, but those are permitted in B-2. Retail and mail order businesses, where retail,
pursee, is not defined."
Councilmember Hanus: "How was it described in the first one you said?"
Councilmember Jensen: "The first one, retail businesses are defined as, stores and shops selling
household goods over the counter. Retail and mail order businesses are conditional in B-2 and
they are not defmed. So it concerns me that people are casually kicking around that this is
permitted. I'm not convinced it's permitted. But I don't know what it is either by the Code."
Councilmember Ahrens: "On page 49 of the packet given out tonight, the second paragraph,
"Koegler clarified that the City Attorney's office has qualified that the snack shop is a
"commercial use" which involves retail sales ....... "
Councilmember Jensen: "That does not help me on whether this is permitted or not, that just
tells me what setbacks would be."
Mayor Polston: "Well, if retail sales are a permitted use in the zone and they're proposing to
retail sale products, I would say that's retail sales.'
Councilmember Hanus: "Yes, it's very strange that there is no description for retail sales."
Councilmember Jensen: "In Section 350, this level of the chart, is that retail businesses and
those are permitted and we have retail mail order businesses which are conditional. The first
one is defined the second one isn't. Retail sales is not necessarily the same verbage as the other
one."
Building Official: "To assist in this question, on page 77 the City Planner has his initial
comments upon the use in the zone."
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City Attorney: "Mr. Mayor the problem with this is that whenever you use this you have to go
back to definitions. So if you tie it to drive-in, there's a definition of a drive-in which is tied
to automobiles. It does not make reference to boats. A drive-in is, "Any use where products
and/or services are provided to the customer under conditions where the customer does not have
to leave the car or where fast service to the automobile occupants is a service offered regardless
of whether service is also provided within a building." So I don't know what particular section
is referred to here that this would be a permitted use in this district."
Councilmember Hanus: "A retail business is permitted in B-2."
City Attorney: "But every business is a retail business, Mr. Hanus. Then you wouldn't need
the other 20 definitions that you have here."
Councilmember Hanus: "So are we saying that over the counter sales of prepackaged goods are
not allowed in our business districts?"
City Attorney: "No, I don't think that is what we're saying at all."
Councilmember Jensen: "Could we equate this to a mini-mart, such as a mini-Seven/Eleven.
Could you put that here?"
City Attorney: "Well, a delicatessen and a dairy store are a permitted use, but they are
specifically authorized in here, but they are also retail uses. Why would you put in retail uses
if you were going to define it and say any delicatessen is a retail use. So the retail use is to
cover general stores, things of that nature. I can go back and see if there is a definition of retail
use in the ordinance. Let me ask one question. Is the Council in a position tonight to respond
to this without your Planner. I mean bringing it off the agenda. I feel totally out of water here
on something that I haven't read for a year, have had no background on it whatsoever. So I
don't know what the purpose of the discussion is."
Mayor Polston: "Well the purpose is, it was on the Planning Commission Agenda for last night
and it was going to be put on the April 25th Council Agenda and there are so many things
already on the April 25th agenda that we probably wouldn't have gotten out of here until 4
o'clock in the morning and so Mark asked that it be put on tonight's agenda. The Planning
Commission looked at it last night. The applicant is in a position where it's a seasonal business
and he would like an answer one way or the other."
Councilmember Hanus: "The Planning Commission looked at it from a little different
perspective than what we are now. The way that I approached it tonight was not a way that I
thought was applicable at the Planning Commission level. They were presented with a variance
request the way you see it and that's the way they addressed it. I'm looking at it from a'
different perspective with a different vehicle to regulate and control the business and I also do
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not agree with the interpretations made as to how many variances are required on this particular
property. I don't argue that there may be a few, there may be two or three, but not as many
as are there because I don't think that they apply to this trailer the way it's been applied in the
past. It's my own opinion, I don't know if it's anyone else's opinion, but it's my opinion and
that's one reason why I wanted to turn it around and bring it in for discussion because it's going
to be a lengthy discussion."
Jim Bedell: "I have a question of the City Attorney. Why isn't this a parallel with A1 & Alma's
when you have 6 licensed restaurants and bars sitting in front of a dock, in front of 2
residentially zoned homes? And when you talk about grandfathering in, the background is such
that they added one boat in 1974, 2 in 1980 and a few along the way until they reached 6."
City Attorney: "The land use, Mr. Bedell, has not been intensified. The fact that they have
acquired property and they are docking boats there, is intensified. You would have to go back
and check those matters because each time they have changed whatever their dockage is, they
have come before the Council and I'm not privy to that information tonight."
Jim Bedell: "All I'm saying is this. When we refer to something that is grandfathered in, you
refer to something that's at a level that can be left at that level and not increased. Last year it
was increased again for about the fifth time. Our ordinance says that an amended conditional
use permit application shall be administered in a manner similar to that required for a new
conditional use permit. To me, that means like starting over."
City Attorney: "To the best of my knowledge, every time Al & Alma's has done something
down there, they have been instructed by the City Staff, that they have to come in and go
through the conditional use process and they have amended their conditional use."
Jim Bedell: "To me that would be like you're starting over. Like you can put things on there,
restrictions. You could bring it more into conformity. All the things that are out of wack, you
could start on it. None of that was ever done. There are things in Mark Koegler's report, many
many things, like lights shining out over the lake, like their boathouse on the property that sits
right on the edge, screening between commercial properties that abuts 2 residential properties,
one behind it and one next to it. There's no screening. It calls for us to have concrete or
bituminous covering for parking and we don't want any parking. This is water oriented. There
are 17 things here that are imposed on this property. The fact is, these were things that were
added this year after receiving a letter last year saying, after a thorough review by everybody
in the City, and then they put 17 new things on here that were not asked or imposed in that
operation and that would have been a perfect time, if bringing the city into conformity, is one
of the key factors in granting these. None of that was done."
City Attorney: 'I have to disagree with you. My recollection of A1 & Alma's, the fn'st time
that it came about was the fact that the use was intense. Let's go back to what is a legal
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nonconforming use and why do you have a legal nonconforming use? Every government would
like to pass a law and say, anything that's bad today is done with, as far as property rights are
concerned. But you can't do that because that would be a taking of the property. So, to avoid
what is known as a taking issue in the constitutional requirements of the law, in the zoning
history you had to come up with a way to handle it. You call it grandfathering. I call it
nonconforming. There are two kinds, a legal nonconforming use or you have an illegal
nonconforming use. A legal nonconforming use is a use that was there when the ordinance was
changed and it has all of the rights of the time that the ordinance was adopted. An illegal use
would be something that came in and was not approved originally. It was not there when the
ordinance was there and somehow it got in after the fact. That's an illegal nonconforming use.
Councilmember Ahrens: "Is that what the house is on that property?"
City Attorney: "No, the house is a legal nonconforming use because it was there at the time the
zoning was done or changed, the house was there, I presume. Is that correct?"
Jim Be, dell: "No, I don't think so. I think this was a commercial building in the twentys and
thirtys and converted to a home in about 1940. I believe there was a marina operation and a
boat repair place."
Councilmember Ahrens: "But that was prior to the zoning code. So it would be. Didn't you
just say that if it had a use before the zoning code came into effect it keeps with it whatever
rights it had before the zoning code went into effect?"
City Attorney: "In essence, that's correct. That's called a legal nonconforming use. The
Zuckman property that I told you about was a legal nonconforming use. It had 2 properties and
two houses and you have a number of those in Mound."
Jim Bedelh "You have thousands of them."
City Attorney: "No there are not thousands of them. They have been basically put aside as
each comes about and one of the ways, on the Zuckmann property, was a fire. It says that if
it is destroyed or damaged to the extent of 50% and then the Council, and I'm sure Mayor
Polston was there at the time, went through a whole process in hiring experts to determine how
much damage was done to the structure by the fire and this all had to be litigated. ~
Councilmember Ahrens: "I'm thinking of a situation and help me, in my mind. We have a
piece of property, let's just take my own piece of property. I have a gazebo, that's close by the
lake, and my house bums down and it's more than 50% damaged. Now my gazebo which was
built when it was a legal thing to do, would I tear that down now in order to rebuild my house?
Would I have to do that?~
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City Attorney: "When you came back to do that, unless you were in conformance with all
ordinances, you would have to come back through. That's exactly the problem you have if you
have 6,000 square feet required and you have 5,800 square feet, it has to come through. The
practical effect is, you can control, you can try to minimize, keep them within setbacks and
things of that nature, but you're not going to create the 200 extra square feet. So you could say
to the Council at that time, why don't you go back and make 5,800 square feet the limit and
then there is somebody next door that's 5,700 square feet and pretty soon get down to a property
that the City was ordered by the court to take which was 3,200 square feet. So you can't,r
Councilmember Ahrens: ri could still argue, the fact that, well that was only built a year ago,
when it was built it was perfectly legal and it's in perfectly good shape."
City Attorney: "You may, at that time, come up with some rationale which meets the
requirements for the Council to grant a variance and those are all spelled out in the ordinance
and you adopt them each time you're adopting resolutions here granting variances."
Councilmember Ahrens: "I have a hard time thinking of what kind of possible hardship the
Council would come up with for that."
City Attorney: "Then probably 'the gazebo would go or it would have to be moved. But, we've
done that with sheds, gazebos. The only time you get a chance to try to bring things into
conformance is when people come in and they want to change them. That's the whole purpose
of the zoning ordinance otherwise you would never accomplish anything, r
Councilmember Ahrens: ri look at some situations though, and I say, if you get so hardnosed
about people making changes that you would get nothing accomplished. I don't want a situation
to occur where we want applicants to do all the bending and be so stubborn that we will get
nothing accomplished."
City Attorney: "Mr. Mayor, in response to this, the whole history of the City of Mound, the
Island, Three Points, etc., was essentially that these were weekend cabins. They were built
without any ordinances, police regulations or anything. They put the things wherever they
wanted to and when (you may say man has made advancement or regressed, I don't know how
you want to adopt it, most people would say that you're making advancements by adopting
police regulation that says, I don't want somebody to have their window two feet from my
window. I want fresh air and privacy, etc.) So, you try to structure and build ordinances which
meet constitutional requirements and meet the standards that you're trying to achieve. Now that
doesn't wipe out at the things that are there, that's a process that takes time and you have to do
it over time. So in this case, if the gentleman wanted to tear down the house, he could come
in and he can get certain permitted uses. He doesn't have to come to this Council, he doesn't
have to do anything as long as he meets setbacks and other requirements."
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Councilmember Ahrens: "What we just did with Arco Century and Glass Plus. We essentially
said, you have something that we don't like but we're willing to let you have this thing that we
don't like, that's illegal or whatever, because we can see that it's going to go away."
City Attorney: "That's not what you're doing. You're saying that you have no way of taking
his property at that point. That did not mean that you had to allow these people to go in and
'basically work two uses into the same property. But you made that decision, collectively,
tonight."
Mayor: "We could have said, no we're not going to allow this amendment to the conditional
use permit."
City Attorney: "That's correct."
Mayor: "And what we would have ended up with is an empty building in Mound."
Councilmember Jensen: "Just for clarification, I did not say I don't like Arco Century. I don't
like the fact that he doesn't live within the conditions that were approved."
Councilmember Hanus: "I have a question, too. What kinds of licenses do we issue to the
farmers market, to the corn stand that was out there last year."
City Clerk: "The corn stand has a Transient Merchant License."
Councilmember Hanus: "Now, they did not have to meet any setbacks."
City Clerk: "They could not be in the site line for the comer. They lease space from the owner
of that parking lot."
Councilmember Hanus: "That structure that they built is not approved construction."
City Clerk: "It is not a permanent structure and is under 120 square feet and does not need
approval."
Councilmember Hanus: "The Wailer is over 120 square feet but it is not a permanent structure
either."
Jim Bedell: "The Wailer is 121 square feet."
Councilmember Hanus: "When the carnival comes in for City Days, the snack stands, are those
part of an all encompassing license of some kind?
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City Clerk: "Yes."
Councilmember Hanus: "So they're not issued individual licenses. They also are, many of
them, trailers and don't require setback requirements that we look to be putting on this one."
City Clerk: "The carnival only lasts three days."
Mayor Polston: "The length of time is irrevalent. Two days, two week or two months, what's
the difference?"
Councilmember Hanus: "The Transient Merchant License is given out for days, weeks, months
or one year. So there are more examples. For them is it a dual use? They are both retail uses
but, Curt mentioned, all of those are retail uses."
Councilmember Iensen: "I don't see those properties being used for residential purposes."
Councilmember Hanus: "No, but they're dual uses, none the less."
Councilmember Jensen: "Retail and retail?"
Councilmember Hanus: "Well, any of the businesses along, from the Coast to Coast on down
to the bakery and then wherever through that shopping center, I think are all in one parcel, if
I'm not mistaken, so there are many uses there. They aren't under a PUD, are they?"
City Clerk: "They are all in the B-1 Central Business District."
Councilmember Jensen: "This is B-2 and used for residential."
City Clerk: "Any of them that needed a Conditional Use Permit would have to get them, but
none of them did because they fit in the permitted uses."
Councilmember Ahrens: "I don't understand why we're not recognizing a legal nonconforming
use, recognizing an existing variance. Like, if somebody's principal structure is two feet to
close to the side yard, why is this any different?"
Councilmember Jensen: "In my mind, it's two different uses on the same parcel and we've
spent sums of money on the Zuckmann case."
Councilmember Ahrens: "Do we have any businesses in town with apartments overhead?"
City Attorney: "Yes, you do."
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Councilmember Ahrens: "Is that a residential and a business on the same parcel."
City Attorney: "We made reference to that last year when you adopted the resolution denying
this. One of the whereas provisions said, 'It is fundamental in zoning that each property should
have one principal use and this may vary in a business district where you could have a shop with
an apartment for the owner or some other comparable arrangement and the Council could, under
a PUD or PDA, authorize more than one structure or use ..... ' Most zoning ordinances do that
if you are going to have more than one structure. To start with, when you have a parcel that
is generally a legal parcel, it is owned by one entity or a partnership or whatever, then you have
a building on there. If they want to have more than one building, they have to go through at
PDA or a PUD process so that you again put in conditions. And what kind of conditions do you
put in? You put in conditions so that if it is split, at some future date, it meets setbacks and
requirements of the ordinance. So you don't create situations which lead you to more
nonconforming uses."
Councilmember Hanus: "But, why don't we do the same thing with corn stands? We don't
have to go PDA on any of those."
City Attorney: "Mr. Hanus, I can't answer that. I don't know about the corn stands. I've
never been approached. As far as I know there hasn't been a corn stand here."
Mayor Polston: "Yes, there has."
Steve Bedell: "Do you drive through Mound?"
City Attorney: "I said, it hasn't been before the Council. That is what I'm talking about.
Mayor: "What's involved if the applicant wanted to apply for a PDA or a PUD, so the
conditions could be attached?"
City Attorney: 'You would have the same situation that you have here. You would have the
same arguments or discussions. That ordinance was redrafted by Mr. Koegler's office a few
years ago so I'm not that familiar with the PUD and PDA uses."
Councilmember Hanus: "I would tend to doubt that with an item of this magnitude, it would
not be practical to go through that kind of exercise anyway."
Councilmember Jensen: "The first thing I see in it, is that the requirement is for 2 acres of
land."
Councilmember Hanus: "I still maintain that the use itself would be a conforming use if the
house weren't there and if it met setbacks. The use would be a conforming use."
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Mayor Polston: "I think everybody agrees with that, if the house weren't'there, it's a permitted
use. Right.'?"
Councilmember Jensen: "I don't agree with that yet."
City Attorney: "No."
Mayor Polston: 'If the house were not there, it would be a permitted use?"
Councilmember Jensen: 'I don't know if it's permitted use."
City Attorney: 'On what basis, is it permitted? Is it retail?"
Councilmember Hanus: "Its an over the counter, retail business."
City Attorney: "The definition of a retail, again is stores and shops selling household goods
over the counter."
Mayor: "That's not a permitted use if there's not a dual use?"
City Attorney: "Again, you have restaurants which are special. You have all of the other uses
that are spelled out in the ordinance."
Councilmember Ahrens: "What's a fast food restaurant? What's a Subway Sandwich shop?"
Councilmember Jensen: "That's a Class II Restaurant."
Councilmember Ahrens: "So would this be a fast food restaurant?"
Councilmember Hanus: "No, this is all prepackaged and they're not prepackaged."
Steve Bedell: "If I could help out here. As far as State regulation goes, they consider this
business to be very much like what Bricldy's runs, as fas a the prepackaged and the licensing
through them."
Councilmember Hanus: "In my opinion, again, I think it's a conforming use. I still think it's
a step in the right direction to get the property more conforming than it would be if you don't
start moving it in that direction."
Councilmember Sensen: "Excuse me, I think you may want to go back. It's your opinion that
it's a permitted use?"
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Councilmember Hanus: "I said conforming? I meant permitted use. You are correct. How
is this different from a corn stand, it's not, in my opinion. I just don't think that the
interpretations'that were made last year were correct. At least I don't agree with them. Again,
with the licensing situation that we were talking about, that will, rather than granting the
variance permanently, overall on this whole thing just saying o.k., it can be there which we have
no way to retract it. Under this licensing procedure, the license is issued annually, I believe,
is that not correct?"
City Clerk: "It can be issued for a day, a week, a month or annually.
Councilmember Hanus: "The most is annually, it would expire at least once a year. So it
would have to be reapplied for, reissued, which gives us every opportunity each year to evaluate
if any problems developed. It gives us far more control than any other method, that ! can think
of, probably even more so than a conditional use permit which we can't do here anyway. It's
the perfect vehicle, in my mind, from the City's prespecfive, the easiest way to go."
Councilmember Jensen: "You've said a couple of things that get my attention and one is this
idea that we have a great deal of control because we require that this be renewed every year.
It's interesting that you see this need for control. It tells me something about what might be
occurring on the property. I have a concern of, what happens in other residentially used areas
when we permit this thing to occur. We already have an applicant saying, you're doing it here
and here, or certainly arguing that we're doing something like it, so therefore you should let me
do it. So if we let this one happen, who comes in next saying, you let them do it so why don't
you let me do it too. I don't know if having this business, and I understand that it is zoned B-2,
and I'm not quite sure where the boundary line is, but the use is residential down to the end of
that point and beyond. Is that something that should be in a residential area? I really don't
think so."
Councilmember Hanus: "This is not a residential zone and as far as the issue of what about if
everybody else down there wants to pop up the same thing, that's exactly my point, that's where
your control comes in. If they pose a problem, you just don't issue the license."
Councilmember Jensen: "How do you not issue to one, when you've issued it to others?"
Councilmember Hanus: q'm not saying you would."
Councilmember Jensen: "How would you deny it? On what conditions do you deny it?"
Councilmember Hanus: "Upon the problems that the business has created, if, in fact, there has
been any. Is that not justification for not issuing a license to a merchant?"
Councilmember Jensen: "You're still hung up on the license, and I am not."
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Jim Bedell: "The property at the far right is the wall of the bridge, then there are these two lots
and then I have another home and that's where the commercial ends. The rest is zoned
residential. I think this is what needs to be addressed, this is a commercial venture on a
commercial piece of property. This property is a little different than the other properties. It
is not like it is in the middle of a residential area. There is quite a distance from the next
house." He went on to explain the area. "I believe, this is the only commercially zoned water
front property, in the City. There isn't any other that I'm aware of, other than if they develop
Lost Lake. That scenario of somebody else wanting to do the same thing, there really is no
other place that it could happen, commercial zoned, water oriented property."
Mayor Polston: "My understanding of what Mark Koegler has written was that if the house
wasn't there, it would be a permitted use in the B-2 zone."
Councilmember Jensen: "Take the house down and that takes care of it, doesn't it?"
Jim Be. dell: "We don't want to do that."
Councilmember Hanus: "And it's not practical at this stage anyway."
Councilmember Jensen: "I can't imagine that this business is going to make it economically
more feasible to make the change."
Councilmember Hanus: "And I have no idea whether it will or not but my opinion is, why not
give them a chance to try it. At least the nature of, the use of the property is starting to shift.
In my opinion, if you don't allow something like this, the chances are you're going to continue
with the nonconforming use, who knows til when. At least there is movement. At least there
is somebody attempting to do something commercial on a commercially zoned property."
Councilmember Jensen: "Maybe that's the problem too. Maybe it should be residentially
zoned. I don't know when that zone was established, but clearly the use is residential."
Mayor Polston: "But, I wouldn't want to be the person to rezone it."
Councilmember Hanus: "I think this little section would be very difficult to rezone because it
is surrounded by commercial businesses up on the comer and it would be very difficult to
change it."
Mayor Polston: "Looking at the residential structure, what kind of a time line are you looking
at, when it would be economically feasible to remove the house?"
Jim Bedell: "There probably would be some development planned for 7-8 years from now, to
develop this whole parcel. Not only this but one behind it and the one next to it, putting all
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three of the parcels that I have together. All three of the parcels are zoned commercial and I
own all of them. The only one I do not own on that comer is Minne-Softub."
Cotmcilmember Ahrens: "Is that also zoned B-2."
Jim Bedell: "Yes ........ ""Well, if nothing happens here and this is denied, all the things about
it are still there. The only thing that's different is the dual use. Because of the setbacks, the
residence is nonconforming. But if it was done on a license, by the season, then if it was not
economically feasible or there was some problem then it wouldn't be renewed. We haven't done
anything permanently wrong to this property. This is a trailer and we pulled it up there and
there is nothing different about that than isn't already existing now and has been for a year."
Councilmember Hanus: "Another thing that I would like to use a little caution on here is, if that
house were removed and they were to put up, let's say an enlarged snack shop, there still would
be some kind of retail use there, they're relying on channel traffic in there. You can only get
so many patrons coming in through there. In fact, they talked in terms of, that really, they are
targeting the people who are existing in that channel rather than attracting people into that area.
This single block, unto itself, how much is that going to support with channel traffic. Is it going
to be able to support a business that is small enough just to be contained on this one lot? That's
a real subjective question, but it's something that I have in my mind, as I'm not sure that it
would. Unless these lots are combined, the business that sits there is going to have to be a fairly
small business or the channel traffic will not support it. That's my guess."
Councilmember Jensen: "In order to have sufficient channel traffic to support the business,
you'd probably have so much traffic in the channel that you'd create other problems."
Councilmember Hanus: "That's possible."
Councilmember Jensen: "Highly likely. When you consider, Fletcher's is a little large but
traffic there is outrageous."
Councilmember Hanus: "That's an extreme in the other direction of what you could face if it
were a huge water oriented business. To carry my point further, if what I said was tree, and
its subjective, if it has to be a small business, can you ever justify removing that house to
support a very small business? I don't know."
Councilmember Jensen: "So that would tend to undermine your earlier argument that this is the
start of the commercial development. Now you're saying that may not happen anyway."
Councilmember Hanus: "I don't know if it will or not. I can't argue that. The business can
only get so big or the channel traffic will not support it. But if it were to grow, will that be
enough to justify combining some of the lots. Again, I don't know the answer to it. I just think
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it's a move in the right direction. It's a start. It's a very minimal gamble, at least done on the
scenario, that I think I drew. There is, I think, an enormous amount of ability to shape and
mold this thing on an annual basis, if it's required. I just think it's something we should try and
work through and try and find a solution to it. I really do."
Mayor Polston: "Well, I'm going to try and move this thing somewhere.
MOTION made by Polston, seconded by Hanus that we prepare a Transient License
with conditions that the Council can attached to it for the season so that if there are
traffic problems or other types of problems, that we make it explicitly clear that if
there are problemq that crop up as far as congestion and a lot of calls, that the
Council cannot reissue it next year.
Councilmember Jensen: "I would rather see something in front of me, than deal with it
tonight."
Mayor Polston: "I didn't say vote on it tonight. I said have it prepared."
Councilmember Hanus:
have to issue."
Councilmember Jensen:
Councilmember Hanus:
Councilmember Jensen:
"In addition, I think that there are a couple of variances that we do
Councilmember Hanus:
two separate uses. That in itself requires a variance."
"Excuse me, how can you issue a variance on a Hawker's Permit?"
"Not on the permit."
"What's to vary then?"
"One argument that's been made and I can't argue with it, there are
City Attorney: "How can you grant a variance for something of that nature? How do you make
the findings, Mr. Hanus? How do you meet the conditions in the ordinance? How do you
override the findings that the Council made a year ago?"
Councilmember Hanus: "Well, show me what page the findings are on."
City Attorney: "The resolution of denial is on page 61."
Councilmember Ahrens: "If someone wants a Transient Merchant License and they are going
to locate the thing on a parcel that has an existing nonconforming use .... "
City Clerk: "We've never done this before."
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Mayor Polston: 'I doubt, very seriously, that anybody that applied for a Transient Merchant
License was even looked at. I don't think we probably paid Mark Koegler for about 400 hours
to find 18 different variances on a corn stand."
Councilmember Hanus: 'Now these findings that are in the previous resolution, are
determinations made by a previous Council that I don't agree with. Does that mean that if
something is denied, it's denied forever or can a Council change it's mind or can a different
Council ...?'
City Attorney: 'A Council can make different findings, obviously.'
Councilmember Ahrens: 'Were these findings a result of denying a CUP?"
City Attorney: 'No, they were denying a variance request last year."
Councilmember Ahrens: 'Could a person apply for a variance to have two uses on a property?"
Councilmember Hanus: 'That is varianceable."
Councilmember Ahrens: "Is it varianceable?"
City Attorney: 'How do you then support what has been the consistent .... '
Councilmember Ahrens: 'I'm just asking the question."
City Attorney: 'And I'm asking the rhetorical question or asking you a question in return."
Councilmember Ahrens: 'I just wondered if someone could apply for a variance to have two
uses on one parcel?"
Councilmember Jensen: "You can apply for it, you may not get it, but you can apply for it."
Councilmember Ahrens: 'You could apply for it. A person doesn't apply for a variance though
when they have a caretaker, or a proprietor's apartment above a business. They just have a
residence and a business on the same parcel."
City Attorney: "No." "'
Mayor Polston: "If we are concerned about protecting the integrity of the zoning ordinance, as
some people seem to be, it seems to me that if the Council wants to allow the use which would
allow in other transient businesses, and we believe it's a transient business, the most natural
thing to do, on a limited basis, is to grant a variance to procedure on a transient license."
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April 11, 1995
Councilmember Hanus: "True. I look at this as it's the same as the corn stands."
City Attorney: "Let me try to respond to that in this way. If you had a sauna or if you had a
massage parlor or whatever it may be, they have to get a license, but they also have to meet the
zoning uses. So the granting of a license doesn't take care of the zoning thing. If you just put
it on a license basis, you're totally disregarding the zoning ordinance. Now, I can't answer the
question about thc corn stands because I don't know how the corn stands got there and I don't
know whether they were ever investigated as to whether they were allowed from a zoning
standpoint. I have no idea."
City Manager: "The question came up at the time that the individual wanted to put it up,
whether it was appropriate or permitted. This was reviewed by the City Planner."
Building Official: "He was on the fence."
City Attorney: "But, I'm just responding to the question that Mayor Polston is raising that
you're doing it by licensing. That doesn't do away with your zoning ordinance."
Mayor Polston: "That's what I'm saying, but we seem to be hung up on granting a dual use on
the property and that seems to be the problem. If the house is gone, it's a permitted use under
the zoning and that's per Mark Koegler, that's not per me. But there are variances then, that
would have to be granted. There is no rational reason, that I can see on earth, why we can
rationalize allowing, I know you don't want to hear it, how we can rationalize allowing what's
happening at A1 & Alma's to happen when they were in for an amendment to a conditional use
permit and we have consistently allowed expansions there. Then say to somebody else who has
property in a B-2 zone on water, we allowed another business to expand but we are not going
to allow you to expand. From a legal standpoint, Curt, I think we are going to get our butts
sued up and down."
City Attorney: "Are you talking about Mr. Bedell's application9."
Mayor Polston: "That's right."
City Attorney: "I would give you the legal opinion that I think that the Council's position of
last year would be sustained."
Mayor Polston: "Even over and above that, my personal rationale is that I don't see how you
can make that determination and allow certain expansions on property and tell others that they
can't do it. I just can't see it."
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April 11, 1995
Councilmember Hanus: "Otherwise, if this is not permitted, we will not have any further stands
like we talked about in town? Other businesses, like A1 & Alma's, are going to have to be
treated completely different then they have in the past, I think. I just don't know that the
consistency is there. At least, it doesn't appear that way. So we have a choice of denying this
here and denying all similar requests in the future or we can allow this and allow a lot of other
things that have happened in the past to continue also."
Mayor Polston: "I'm not of the opinion that we should go looking to hurt some other business.
I'm just saying that it's really tough for properties that are zoned specific ways to be allowed
to perform or to operate outside what the zoning says that they should be doing and then mm
around and say to somebody else, you can't do it. You're different, your property is different."
Councilmember Hanus: "Especially when you add the fact that this will be an annually renewed
business, reviewed annually. The risk is so low, from that respect, sound o.k. to me."
City Clerk: "I need to know what conditions you are putting on this, because we've never put
conditions on a Transient Merchant License. They just have to follow what the ordinance says."
Mayor Polston: "What are some of the conditions that a transient merchant would have to
follow?"
City Clerk: "And if you're going to grant a variance then you need a resolution."
Councilmember Hanus: "Bob makes a good point. We don't require any of those variances on
any of the other transient merchant licenses."
Councilmember Ahrens: "What if we have a problem with one of those transient merchant
licenses? Can we just go in an pull it?"
City Clerk: "Normally, that license is issued for a specific period of time, like the corn stand
tWO months.~
Councilmember Hanus: "But the code allows for annual license.
Councilmember Ahrens: "Well, I'm really struggling to find a way to try this. If it's a
conditional use permit that says it expires in one year and you can reapply and we'll think about
it again or."
Councilmember Hanus: "That, I am sure we can't do. The code is specific as to what uses are
allowed to have a conitional use permit applied to them and this is not one.'
Councilmember Ahrens: "O.K."
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Mound City Council Minutes
April 11, 1995
Councilmember Hanus: "I don't know if Curt could confirm that or not, but that's the way I
read the code. As far as conditions. One thing that was done and I think it was last year, and
I don't suppose we have it in the handout, the DNR was approached about this and their
response was, correct me if I'm wrong, their response was, if it's allowed their opinion was that
it should be at least 25 feet from the water for whatever reason. I don't recall what. If you
would like to attached a condition, you might want to consider how far it might be from the
water even though it might not be subject to the normal setbacks. I don't think it is anyway just
because of the nature that it's a trailer. It's currently parked where it is .... "
Councilmember Ahrens: "You defeat the purpose of servicing people who .are going through
the channel, by now having this 25 feet from the water. Does that mean that now people have
to park their boats and now risk conjesting the channel?"
Councilmember Hanus: "You do if you go back too far. It still has to be somewhat convenient
and also the success of the business somewhat is reliant on its proximity."
Jim Bedell indicated that he felt the DNR letter was referring to a permanent structure not a
trailer.
Councilmember Hanus: "I agree, they were considering it a structure that needed to meet
normal structure setbacks."
Councilmember Jensen: "It looks an awful tot like a structure and since everything else in town
has to be a 50 foot setback from the lake, I can't imagine why we would want to vary from
there."
Councilmember Hanus: "For one thing to assure that it is not a structure, it is a trailer and the
applicants have agreed to do this and that is during the off season that it be moved back further
onto the lot and to maintain that it is currently licensed at all times."
Jim Bedell: "One of the reasons that it doesn't look like a trailer and does look like a structure
is that it has siding, not the normal aluminum siding. We thought it would look better and blend
in better with a conventional roof line and more pleasant to the eye. This is fairly good
looking."
Mayor Polston: "Some of the conditions I have come up with are:
Keep the trailer currently licensed.
Move it back from the lake after the season.
Service people in their boats and not put picnic tables and stuff there so we have
people eating on the property. They are in and out and back on the lake."
Limit the amount of time a boat is allowed to stay at the dock to 15 minutes.
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Mound City CouncLl Minutes
Steve Bedell: 'The services that I am providing for the public, would be recycling, garbage,
pay phones and portable bathrooms. The ideal customer, is what my goal is, when this business
started, is to get a bunch of laminated menus of all the products I have to offer and to hand them
out. So ideally, the customer would pull in, I would greet them at the end of the dock. I would
control, to my power, the traffic that goes by, they would place their order, I would run back
get their order, take their money and they would be out of there. That would be the ideal
customer visit, not leaving the boat. I don't have a problem with a 15 minute limit.'
Councilmember Hanus: 'That would allow enough time for at least a couple of people to get
out and use the bathroom if they had to."
Mayor Polston: 'Are there any other conditions?"
Councilmember Jensen: "They're proposing to have prewrapped things like sandwiches?"
Steve BedeU: 'Non-prepared wrapped sandwiches. There's a guideline found through the State,
I believe it is the Department of Agriculture, that regulates this business."
Councilmember Jensen: "My concern is even more different than that. Jim, I'm sure you've
experienced how you get Hardee's wrappers in your yard, too."
Jim Bedell: "Yeah, you bet."
Councilmember Jensen: 'O.K. So are we going to get wrappers in the yards?"
Jim BedeU: "That's something that is beyond our control after the people have the product in
the boat.'
Councilmember Jensen: "But, the answer is, yes, there will be sandwiches that they can open."
Jim Bedell: "Yes, but we would hope they would be responsible and we are providing garbage
containers."
Councilmember Hanus: "That was going to be my point, too. That's on the flip side that it's
garbage that could end up in the lake that now, hopefully, will end up in a garbage containers,
too. Could you give me those conditions one more time, I missed a couple."
Mayor Polston:
Keep the trailer currently licensed.
Keep it back from the lake."
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Mound City Council Minute~
City Clerk: "How far back, 25 feet.?"
Mayor Polston: "Seasonally."
Councilmember Jensen:
Councilmember Hanus:
Councilmember ?damns:
Councilmember Hanus:
April 11, 1995
"So, how far back is seasonal?"
"I don't know how you would want to state it."
"I would like to see the 50 foot setback during the non-season."
"Technically, I still agree that the trailer should be moved back, but
it they closed the doors and park it where it is, it's still parked legally. But, I am in favor of
requiring moving it because it shows and proves it's mobility and it's not a permanent location.
It forces a non-permanent location."
Mayor Polston: "Is the setback requirement 50 feet?"
Councilmember Ahrens: "Yes, and the applicant says he can meet the 50 foot setback
requirement, no problem, for off-season storage.'
Councilmember Hanus: "And during the off-season, are we going to call the off-season at least
180 days of the year?"
City Clerk: "Are you going to give the months?"
Councilmember Jensen: "Yes, you really need to."
Steve Bedell: "I would think April 15 to October 15."
Councilmember Hanus: "So we're saying move it back at least 50 feet, October 15 through
April 15. Be currently licensed at all times. Limit boat stops or customer stops to no more than
15 minutes. What else?"
Mayor Polston: "If them are conjestion or problems related to boats causing conjestion and
confusion in the channel and the Water Patrol or the Police call us, that would be consideration
for denial for the following season."
Councilmember Jensen: "There was discussion about no picnic tables and I don't know if that
got captured."
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Mound City Council Minutes April 11, 1995
The City Clerk asked for explicite clarification of what the Council wants for conditions.
Mayor Polston added the following: "There be no picnic tables. They must provide garbage
and recycling receptacles."
Councilmember Ahrens: "They must provide a handicapped accessible portable toilet."
Councilmember Jensen: "Where is that going to be located? I'm more concerned about that
ending up in the lake than anything else."
Mayor Polston: "Just make it a stipulation that the bathroom not be within 50 feet of the lake."
Building Official: "There axe a couple of concerns that I have. One regarding the dumpster
area and the city code requirements for a dumpster enclosure.
Mayor Polston: "A dumpster?"
Building Official: "If there's a dumpster or if there is enough trash generation, it may be, that
a dumpster enclosure is required. They have stated that the trash cans or trash area is going to
be screened. That is just a concern of staff. We have received several complaints recently
about the general appearance of this property and the adjacent property regarding exterior
storage."
Mayor Polston: "Several complaints?"
Building Official: "Yes, from Planning Commission members. I have discussed some of these
issues with Mr. Bedell. Also, the other issue that I had was, there may be some building code
issues that apply regarding accessibility to the bathrooms.'
Mayor Polston: "Building code requirements to a portable bathroom?"
Building Official: "Yes, there are building code requirements when you have a business and
employees, regarding bathrooms and facilities. I'm just saying there may be issues that we need
to address with the Bedells and work through those issues."
Jim Bedell: "We are dealing with people from the State, or Steve has gone over that. There
are no employees. Steve will be there by himself. But, that is an issue and there is a criteria
that they use. We'll work it out."
Mayor Polston: "Now, on this garbage, you said that you are going to screen it. What kind
of a recepticle are you going to provide, a dumpster?'
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Mound City Council Minums
April 11, 1995
Jim Bedell: "Well, I think what we're going to provide is just two of those commercial,
whatever gallon size, inside like a decorative, wood outside thing. They would be picked up
once a week. I think two of those, one with recyclables and two with garbage."
Steve Bedell: "Similar to like Fletcher's or Excelsior Park Tavern, where they have a wood top
and they drop down into a barrel."
Mayor Polston: "What capacity are you talking about."
Jim Bedell: "Whatever the largest size, 32 gallon or something. Two of those that would be
picked up everyweek."
Councilmember Ahrens: "You don't think you're going to get more garbage than that?"
Building Official: "I'11 work with the applicant. It is possible that an enclosure is required
around their trash containers. It could be that they're plan provides for that and would meet that
section of the city ordinance."
Mayor: "Any other items?"
City Clerk: "Would we like to go through this so Jon knows what he is going to the writfing
about?"
2.
3.
4.
5.
6.
Snack shop to be 19 feet from the water.
Limit customer stops at the dock to 15 minutes.
Snack shop trailer to be currently licensed year round.
The snack shop will be set back 50 feet from the water during off season.
Season will be April 15 through October 15.
If there are conjestion problems in the channel, precipitating compliants to the
Water Patrol or the Mound Police, this would be grounds for license revocation.
No picnic tables will be allowed on the site.
There must be garbage and recycling recepticles in an enclosure.
The toilet facilities will be handicapped accessible and will be screened from the
lake. These are not to be within 50 feet of the lake and will be removed during
the off season.
The vote was 3 in favor with Jensen voting nay. Motion carried.
INFORMATIONAL/MISCELLANEOUS
A. Department Head Monthly Reports for March 1995.
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Mound City Council Minutes
April Il, 1995
B. LMCD Representative's Monthly Report for March 1995.
C. LMCD Mailings.
The Park & Open Space Commission has rescheduled its Park Tour for Thursday, April
20, 1995, 6:00 P.M. Please make every effort to attend.
E. Minutes of the Planning Commission Meeting of March 27, 1995.
F. Economic Development Commission Minutes of March 16, 1995.
Attached is the following information RE: S.F. 1570 (Property Tax Freeze Bill proposed
by DFL Caucus for 1996):
Memo dated March 31, 1995, from League of Minnesota Cities regarding
proposed tax freeze for 1996.
o
Letter written to Senator Gen Olson and Representative Steve Smith regarding
how a freeze does not make any sense for cities.
Information compiled by the League of Minnesota Cities on the impact such a tax
freeze would have on various cities across Minnesota.
Gino and I attended a hearing on Tuesday, April 4, 1995, at the Capitol. Senator
Roger Moe, DFL - Erskine, presented the bill to Senate Tax Committee. A
number of cities, counties and school districts were represented. The League
testified against the bill and Jim Miller, Executive Director of the League; Karen
Anderson, Mayor of Minnetonka and 1st V.P. of LMC; Frank Salerno, Mayor
of Ely and 2nd V.P. of LMC; carried the cities message that this bill would have
disastrous effects on municipal operations. At the end of the testimony, the
Committee voted to approve the bill and it now moves through the Senate
process. Governor Carlson is likely to veto it should it ever reach his desk. I
have spoken to both Senator Olson and Representative Smith. Both oppose this
bill and will work to help cities and other local units of government. Governor
Carlson has proposed Local Government Aid (LGA) cuts in
our 1995 LGA payments. This amounts to approximately $60,000 or 7.5% of
the City of Mound's total aid. Governor Carlson is also proposing an additional
$20 million in LGA cuts in 1996. I don't know what that figure is at this point.
Whatever the final decision is regarding property taxes or LGA,
there are going to be some cutbacks. Cities are again being asked to take cuts in
order for the State to balance its budget. This is an annual occurrence which
eventually will, in the minds of Legislators, force reform of the state/local finance
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Mound City Council Minutes
April 11, 199~
system.
F. REMINDER: Committee of the Whole Meeting, Tuesday, April 18, 1995, 7:30
P.M.
RE341lh~ER: Annual Board of Review, Tuesday, April 25, 1995, 7:00 P.M. Enclosed
are copies of Sales data prepared by the County Assessor's Office. Regular Meeting of
April 25 will follow Board of Review.
II.
We have scheduled Thursday, May 4, 1995, for the Open House on the Mound Visions
project. It will be held from 7:00 P.M. to 9:00 P.M. at City Hall. It will provide an
oppommity for all interested citizens to become familiarized with the Lost Lake Dredging
Project and the Auditor's Road Improvement Project. Please mark your calendars for
this event.
MOTION made by Ahrens, seconded by Hanus to adjourn at 11:30 P.M. The vote
was unanimously in favor. Motion carried.
w~~d J. S~ld~, Jr., City Manager
Attest: City Clerk
206