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HomeMy WebLinkAbout08/07/1979 Council Minutes286 August 7, 1979 A special meeting of the Lino Lakes City Council was called to order at 8:00 P.M., August 7, 1979.by Mayor Karth. Members preent; Kulaszewiczs. McLean. Schneider, Zelinka. Absent; None. Also present were Mr. Locher City Attorney, Mrs. Sarner, City Clerk, Mr. Blackbird and Mr. Herman Taile, Attorney, both representing Reshanau Estates, Mr. Benson, Chair- man of the homeowners group and several homeowners, later identified. The original intent of the special Council meeting was to act as mediator between the Reshanau Estates developer and the homeowners group on the pro- posed use of outlot H,J, and K in the East Shadow Lake Development. Since the meeting had been set, however, new information had been brought to light concerning the present status of these outlots. Mr. Locher had researched the matter and copies of his findings had been previously distributed to the Council members, Mr. Balckbird and Mr. Benson of the homewoners group. Mr. Karth read this for the benefit of those present. This in brief ex- plained that the Council minutes of January 26, 1970 indicated that a special use permit ( #28) had been granted on outlots G and H for 2 -4 family dwellings and outlot K for apartments. Townhouses could be considered as falling within this use. Under Ordinance 56A, this would survive and no action was ever taken to cancel or rescind it. The special use permit in this cas ran with teh land and could not be cancelled without the procedures of rezoning. Mayor Karth opened the meeting for questions from the audience. There was some discussion on the present status of special use permits, which are generally thought to run with the individual, rather than with the land, and are usually issued with a time or conditional limitation and /or subject to a yearly review. Mr. Zelinka discussed this and cited a case in point. Under current usage, variances and rezones, rather than special use permits, attach to the land. Mr. McLean noted that this was the practice in recent years, but that in this case, it was going back quite a few years Mr. Locher indicated that Ordinance No. 56, section 5.04 (adopted June 12, 1972) provided that all uses existing at the time of adoption of the ordinance were automatically granted as they existed on that date. The special use permits granted for outlots G, H and K were in existance then and hed been since 1970. Mayor Karth read the portions of the Council minutes in question pertaining to the public hearings on outlots G,H,and K, Lakes Addition II, which dtipulated that no permit for development be allowed unless the plats were submitted and accepted. Mr. Schneider asked if at the time the special use permits were applied for, had they come under Ordinance No. 6, and did the subsequesnt section 5.04 of Ordinance No. 56 then apply to that situation. Mr. Locher indicated that that was the case, unless section 6.21 of Ordinance No. 56 applied, which he then read. It stated that when a zoning change or a special use permit had been granted, it shall be incumbent on the owner to begin construction within 12 months, 1 year, after Council action on the proposal and complete the priject within 3 years. If construction had not occurred, the rezone shall be void and revert to its original zoning prior to re- zoning. However, Mr. Locher commented that the first sentence referred to "zoning change or special use permit," but later, in reference to its being woid, it read "rezoning" only, and the term special use permit was dropped; the whole paragraph did not refer to special use permits except in the first sentence. It was therefore somewhat unclear and open to interpretation. Mr. Lcoher indicated that he would take the position, if the Council was going to enforce section 6.21 uniformly on all applicabl lands within the City, that the special use permits do not survie unless there was costruction commenced within 1 year and completion in 3 years. Therefore the special use permits granted on outlots H and K would not be viable at this time. Mr. Locher brought up the example of other properties August 7, 1979 287 that would fall into this categor, and this was further discussed. Mr. McLean felt the intent of this section had been to encourage activity on those zoned or special use permit properties as opposed to having nothing happen on them for many years. Mr. Locher noted that outlot G was subsequently rezoned in 1973 from R -5 to R -1 to allow for singel family residence. Notice of the public hearing appeared in the Forest Lake Times and was for the purpose of rezoning out - ots C and I, Lakes Addition II from agricultural to R -1, as well as rezoning outlots G from R -5 to R -1; it stated that ny special use permits granted to allow construction of townhouses on outlot G were thereby withdrawn. These outlots were then rezoned as of March 13, 1973. Mr. Zelinka commented that the public notice specifically addressed the fact that the special use permits also had been withdrawn; which would indicate that the Council at that time felt they were still in force, and by implication that any place else under a special use permit was not being withdrawn. Mr. Locher reviewed the backgrould history of the proposed developments in this area. which indicated that there had been townhouses platted and ser- iously considered. A public hearing had been held on Chomonix South (1971 R -5 zoning, 68 townhouse units on outlotK), but nothing had ever developed. Chomonix East was also platter but never completed. Several Council minutes, planner's letters, and records were consulted. The last time townhouse developments had been considered before the Council was on June 23, 1975. In answer to Mayor Karth's question about the Lake Drive area, Mr. Locher answered that it had been zoned initially in Ordinance No. 6 in 1955; Ordinance No. 6 was the base point in establishing all zoning in the City. There wa a zoning map with Ordinance NO. 56, but that had never been adopted, so that sections in Ordinance No. 6 had to be referred back to in those cases, as it had never been changed. Ordinance No.6 had had only two specific zonings; commercial and residential, which allowed 2 -4 family dwellings. Ordinance No. 56 was much more sophisticated in its zonings. Special use permits under Ordinance No. 6 had no special or dinal limitations except that the Council could attach conditions if desired; it did not specifically state whether special use permits went with the land or the individual. Mayor Karth pointed out that at this point the Council did not know how many properties would be affected under Section 6.21, and that the properties already mentioned had been bought and sold several times as commercial property, which they no longer would be if 6.21 was enforced; this should be a consideration. Sun Oil, Gulf Oil, and Feedrite were mentioned as cases in point. Mr. Zelinka felt that if the Council took the position of enforcing 6.21 uniformly, that it would be necessary to notify those affected. He felt that these people have been given advice to the contrary, and in- quired as to how an outsider would have been aware of this type of situation. Mr. Locher said the law assumes everyone is aware of these things and that publication in the newspapers is sufficient notice to the public. Mr. McLean asked how the City stood from a liability standpoint; Mr. Locher said there was no obligation; that the ordinances were available and notice on Ordinance No 56 had been published and a public hearing held. There was a question raised as to the situation when a buyer comes in three years after the publication and was told by the seller that the property was commercial; it was pointed out that attorneys are hired, and it is their responsibility, but that when or if they checked with the City Hall, what answer would they have gotten? It was felt taht for the future, the Ordiannces should be codified, and also that special use permits should be limited i:t individuals and not run with the alnd. Mr. Zelinka said that 288 August 7, 1979 when he had read the ordinances, he had assumed special use permits ran forever unless a time or conditional limitation was made at the time of the motion. Mr. McLean moved that Ordinance No. 56, Secotion 6.21, zoning change performance, be enforced as written from this point on in all cases where applicable. There was further discussion on this, and Mr. McLean clarified that his intent was that section 6.21 implicity meant that special use permits are subject to exactily the same interpretation as rezoning even if the wording is left out. This refers to the second to the last sentence in 6.21, "The rezoning shall be void and revert to its original zoning prior to the rezoning." Mr. Zelinka noted that whichever way the Council interpreted section 6.21, the other side could sue and have an equally good chance of winning the case. He asked the two attorneys present to give their interpretation of Section 6.21. Dave Cody, an attorney and a homeowner, felt he would agree with Mr. Locher's views of the ordinance, in that it pertained to the special use permits as well. Mr. Talle, attorney for the developer, asked Mr. Locher how he rationalized section 5.04 which talked about special uses under Ordinance No. 6, which then had to be administratively considered as rezones and had to be changed by the appropriate hearing and so forth as required for zoning. He asked why section 6.21 would take precedence over the language explicit in section 5.04. Mr. Locher replied that Ordinance No. 56, section 5.04, in his interpretation applied to special use or rezone itself, which would not be an actual in- process use. In reference to a specail use being treated administratively as a rezone, section 6.21 addressed itself to that situation where nothing had occurre it cancelled rezoning, and in his interpretation, special use permits, where construction had not been begun during the stated tome period. Although townhouse projects had been planned for the area, no construction or use had resulted. Mr. Talle pointed out in reference to the history of twonhouses in the area that the City had admitted more than a year after Ordinance No 56 was adopted that the special use permits were still in force, and had published public notice that outlot G had been zoned as an R -5 use. He felt the ordinance was capable of different interpre- tations, but since the City had acted in this manner in the past, that by changing it now, the Counti would be doing so, in effect, to stop the quadriminium project. He noted that reliance gets to be a factor as will, in terms of the owners who had purchased the properties in reliance of the zoning, and that the Council would have to take affirmative action to take that asway. That couldn't be done by just passing Ordinance No. 56. He also referred to the previously raised question as to whether this was an official Council meeting and whether the Council could vote officially to enforce an ordinance in a manner different than it had been enforced previously. Although the Council felt it could take official action at this time, the stated purpose of the meeting had not been to take action but to _take a position of mediating between the two parties. It was felt there should be further consideration before the special use issue was decided. Mr. Locher was asked to get intouch with Mr. VanHousen, the planner who drafted Ordinance No. 56, for his interpretation and clarification on this and /or any specific notes he may have on it. The meeting was opened to discussion from the sudience. Mr. DeNuccio, from the homeowners group, felt that the issues in Section 6.21 could be addressed in the Comprehensive Plan in terms of handling 1 1 4� August 7, 1979 v J the properties covered by the special use permit situation. He also felt that the maps, developments and records addressed in the discussion of the area probably did not reflect all the materisl handled during those years, and there was so much variation in these that the Council should address the issue from the standpoint of what should be done now in terms of the total area -- what should be done with it and what it should look like and so forth. This also should be addressed in the Comprehensive Plan. looking at the whole picture rather than handling it piecemeal. Mr. Zelinka out that these properties should be handled with ethical fairmess, and that, for example, Feedrite had no idea that they had to start construction within a few nonths and complete it within 3 years, or the property would revert to its original zoning. He felt they should definately be notified and that there would be a lot of hardshop as a result. He pointed out that if the developer - homeowner situation could be resolved amicably. the City could have some time to reword the ordinances to reflect what they intended to say, and also so that they are relatively easily understood. Mr. DeNuccio had some further questions on the special use permits and how they were used now; Mayor Karth indicated that they had been appropriate at the time under Ordinance No. 6, although a rezone would be used for the function today. Mr. Benson felt that the motion by restated and that issue decided before the homeowners and developer tried to resolve the issue; Mayor Karth indicated more consideration and input was necessary before that issue could be acted upon by the Council in view of the properties ffected. Mr. Schneider added that it was necessary to determine to whom did it apply and the interpretation to be given it. A homeowner in the audience, speaking for himself, said that he had bought his pro- perty with the understanding that the area was zoned for single family residences. and that as a neighborhood they would welcome further single family development, that is, a development consistant with the already existing neighborhood. He felt that nothing further should be done with the land until the long range Comprehensive Plan for the area was com- pleted; and that a thoughtful, planned development of the community was necessary. The quads would have a deninate impact on the lifestyle of the residents. Mr. Schneider moved to set a special Council meeting for Wednesday, Aug. 22, 1979 at 8:00 P.M. for the disposition of the question of the special use permits. Mr. McLean seconded the motion. All were in favor. Motion declared passed. The Council should be ready at that time to make a motion on the issue and pass it. Mr. Blackbird was asked if he had a presentation ready, but replied that aside from the geustion of the special use permits he had been advised not to speak, and had no presentation to make. He felt the special use permits still applied to thearea, and the seller of the single family homes had been at fault. Mr. DeNuccio raised a question of how a buyer would become aware of the zoning in an area. There was some further discussion on this, and Mr. Locher said that at that time the St. Paul Poineer Press had mentioned townhouses along with aswimming pool, etc. Mr. Zelinka said that apparently the buyers had been either deliberately, accidently, or through misunderstanding been misled becasue they were of the opinion that this areas was dedicated to single family residences, and yet as the records showed, the last offical action was of the opinion that it was dedicated by special use permit to miltifamily dwellings=. Dave Cody, resident, indicated that according to the Ordinance it would no longer have neen multifamily dwellings. However, it was felt this was open to interpretation. There was further discussion initiated by Mr. DeNuccio on where zoning records appear; this was clarified. 290 August 7, 1979 Mr. Reinert, as a member of the Planning and Zoning Commission and not a homeowner, asked for clarification on what Mr. Locher was going to research by the August 22 meeting that had not already been researched and presented at this meeting. In reply. the Council indicated Mr. Locher would endeavor to contact Tom VanHousen, the planner who drafted Ord. No. 56 for his interpretation of section 5.04 and 6.21. Mr. Reinert felt that in reference to the legal interpretation there had already been two opinions, and that from his observations the developer's position was unchanged as was the homeowners' position, and that only action by the Council on the interpretation of Ordinance No. 56 would resolve theissue, which could be done at this time as well as on Aug. 22. Mr. Zelinka felt that the planner might be able to provide the notes on which the ordinance was nased, which would shed some light on the intent of the sections in question. Since legal clarification at this point had been limited to involved parties, he felt that the Council should have a further opinion, suggesting the Attorney General's office. Mayor Karth indicated that the Council wished to avoid the costs of a lawsuit if possible, and that it would be better to take the time now than to spend time later in the courts. Mr. DeNuccio agreed that an objective opinion from another governmental agency was a reasonable approach. Mr. Locher cautioned that it would take time to get an official decision from the Attorney General's Office, and that also the planner may not be able to give an answer because of the length of time involved, not being an attorney, and so forth. He suggested goint to the counsel for the League of Minicipalities for a third opinion. Mr. Schneider noted that the purpose of the meeting had been to initiate dialogue between the two parties, which had not taken place. He felt the developer intended to go ahead with his plans regardless of the homeowners, and that if the special use was upheld they would not consider the home- owners. In reply, Mr. Talle said that when the special use is clear, then the parties should decide what the City wants and what the residents want to do with that use; because if the use is there, guidelines are in place as to density, type of units, setbacks and so on, and that the developer would work with the residents within those guidelines. There was a question raised as to the purpose of the meeting if Mr. Blackbird had been intructed not to sepak. Mr. Talle indicated that they intend to be amicable, and when this question is hurdled, they will get to the other points. Mr. Zelinka inquired as to whether they were willing to deal with the homeowners on a fairly broad basis once they got a reading on where the Council stands on the ordinance issue. Mr. Talle replied that they would, absolutely; that they were more than willing to treat amicably with those who treated with them amicably; and that he could understand if their position did not change if they felt the use law was on their side. He felt they could not proceed further without that decision. Mr. DeNuccioo felt that the developer would not bargain at this point because they might win the legal issue. Mr. Karth inquired as to what the homeowners' position would be, and what they would be willing to give to the builder. Mr. DeNuccio, as an individual, felt that the development had already been turned down for a plan that was substantially the same, with the exception f deleting two units. He felt the developer was maintaining an inflexible position and was unwilling to make any changes at all. Mayor Karth asked if Mr. DeNuccio as an individual was willing to give up a couple of single August 7, 1979 291 family residences in that area for quads. In answer, Mr. DeNuccio felt the concern should be with the overall neighborhood and the enviroment withing that neighborhood; that a community of 38 homes could absorb 4 or 5 quads or similar structures, but not the 39 units that were planned. as this would be more than the already existing neighborhood. He referred to a question he had asked Mr. Blackbird previously on the economic break- even point for the developer on quads, but had not received an answer; he also indicated that Mr. Bllckbird had a plat ready for single family residences for that area. He felt that if lakd out aesthetically with planned landscaping and buffers, he could live with 4 or 5 quads. He felt more than that would change the area from predominately single family Names to predominately quads. Mayor Karth commented that there was a development of 80 -100 single family lots going in east of Shadow Lake Drive. Mr. DeNuccion felt that there was no insurance they would be built. He also felt that this was the developer first project of this type and that they did not have the experience to do it right, and also the developer's density figures included land he did not control. He added that a development should be lakd out for the whole area and not limited just to the quads, and should mix single family with quads or other structures. He also felt there was no hardship on the developer's part, and that single family homes could be built with a profit there. Another resident from the audience who had bought his home recently said that had he known of the propsed development, he would have thought twice about moving there. Mayor Karth indicated that the whole area had started out as a planned unit development. Mr. Zelinka said that the problem arose when Metro Council enabled Anoka County to take a good share of that land for park purposes, which had cut into the heart of the development. Part of this also was that in 1969 plans were set for the area to be sewered by 1971, IIIthis had not happended. 'Several other factors had been envolved which delayed the entire development. Mr. Shchneider noted that this evidently had not been communicated to the public. Mr. Zelinka felt that the seller �f the homes was responsible, and perhaps to some extent the Council for not monitoring what was being told them. although that was not their function. Mr. Schneider indicated that nothing had been said at the public hearing about this. Mr. Zelinka briefly reviewed the history of the planned community, which had included provisions for multifamily dwellings, apartments, single family homes, etc., but that this had constantly been subject to changes, and eventually dropped. The August 22 special meeting was further discussed. It was felt that an unofficial telephone reading from the Attorney General's office could be gotte. The counsel for the League of Miniciplaities would also be contacted and perhaps would render a decision. Mr. VanHousen would also be contacted. Mr. DeNuccio asked if after the Council decision had been made, would there then be a meeting for interaction netween the developer and the homeowners. Mayor Karth indicated that if the special use permit is upheld, the developer would then have the option of the public hearing for the rezone, or would have to go through another platting process for single family homes, at the P &Z, Council and public hearing levels. There was some further clarification on rezoning and special use permits IIIn answer to a question from the audience. It was also -6xplained that the special use permits on these outlots, if upheld, were from townhouses, multifamily dwellings and apartments or any lesser use, but not tied to any particular plan. Mr. Zelinka moved to adjourn at 10:10 p.m. Motion seconded by Mr. Kulaszewicz. All were in favor. Motion declared passed.