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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. 171 Mound City Council Minutes 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. 172 Mound City Council Minutes April 11, 1995 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 173 Mound City Council Minutes 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. 174 Mound City Council Minutes 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. 175 Mound City Council Minutes 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 $204,950 176 Mound City Council Minutes April 11, 1995 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. 177 Mound City Council Minutes April 11, 1995 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. 178 Mound City Council Minutes April 11, 1995 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." 179 Mound City Council Minutes 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 180 Mound City Council Minutes April 11, 1995 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." 181 Mound City Council Minutes April I I, 1995 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." 182 Mound City Council Minutes April 11, 1995 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." 183 Mound City Council Minutes April 11, 1995 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." 184 Mound City Council Minutes April 11, 1995 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 185 Mound City Council Minutes Apdl 11, 1995 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 186 Mound City Council Minutes April 11, 1995 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?~ 187 Mound City Council Minutes April 11, 1995 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." 188 Mound City Council Minutes April 11, 1995 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? 189 Mound City Council Minutes April 11, 1995 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." 190 Mound City Council Minutes April 11, 1995 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." 191 Mound City Council Minutes April 11, 1995 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?" 192 Mound City Council Minutes April I1, 1995 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." 193 Mound City Council Minutes April I1, 199S 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 194 Mound City Council Minutes Apdl 11, 1995 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 195 Mound City Council Minutes April 11, 1995 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." 196 Mound City Council Minutes April 11, 1995 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." 197 Mound City Council Minutes 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." 198 Mound City Council Minutes 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." 199 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. 200 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." 201 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." 202 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?' 203 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. 204 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 205 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