HomeMy WebLinkAbout03/12/1983 Council Minutes i 3
B It ' s 7 : 30 and the next item on the agenda will be the public
hearing on Special Use Permits Number 27 and 81-05 .
Open the public hearing and I want to express before we begin this
is strictly a discussion on the Special Use Permit , it has no bearing
on any building of buildings or anything along those lines . We are
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strictly going to deal with the special use permit at this time . It
has been a concern of mine that information of this came down over
the 'last year and has , I think is , a way of updating . Presently we do
see from the different courts their judgements that the special use per-
mit process at that point was valid and that the builder E L Rehbein
at that point was allowed to build under the special use permit according
to their judgement and to my knowledge the homeowners did not follow
through with any additional lawsuits that I know of and this council
indicated that they would deal with the special use permit after that
decision was handed down . I guess, you know , if you want to start
off (Bill) and update us .
I had an opportunity to review this following the last decision
in an effort to evaluate at this point in time the decisions that
were used in the process under the section of the ordinance 6 . 21
(which deals with) all the special use permits . I got an opportunity
to review both of the decisions to determine the (scope )
issued by Judge Dablo and the last one issued by Judge Kameyer and
based on those decisions the only issue at this point in time as I
see it before city council concerns the activities undertaken and
the applicability of section 6 . 21 . As I have indicated in my letter
I sent out to you revealing the court decisions and the section
of activities that were undertaken on behalf of the permitee , it
is my feeling that individual that was granted or company that was
granted the special use permit has done sufficient activities based
on my discussions with city administrator and my review of the records
to enable them to proceed under that permit , that they have complied
with the ordinance and that they have vested rights to continue with
their activities as were approved by the district court at this time .
There is not sufficient basis for the city to base their activities
to declare the permit void under section 6 . 21 , at this time .
B I ' ll take any inputs from the audience at this time .
Good evening , my name ' s David Cody . I live at 6773 East Shadow
Lake Drive . I 'm a member of the Reshnau area Homeowners Association
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and am also a member of the Task Force which considered this or con-
sidered the new zoning ordinance and new zoning district map over
the last 9 months . Think it ' s very important for this council at
the outset to understand precisely what the issue is and what the ,
what they, are facing here tonight . The sole purpose of this public
hearing in my ,judgement is to determine whether or not special use
permit 81-05 issued on January 12 , 1981 continues to be valid under
the current zoning ordinance in particular section 6 . 21 . I would agree
with councel for the city and I think it ' s important for you people
to realize at this time Judge Kamayer ' s decision does not have any
bearing on the issue under question tonight . Judge Kamayer ' s
decision is solely limited to the process by which the special use
permit was initially issued . In essence , Judge Kamayer stated and
we did not have an arguement with that since we did not appeal it ,
that the process by which this city council issued a special use
permit number 81-05 was valid . That is the nature and extent of
of that decision . •It does not go any further than that . As I
stated , the issue tonight is solely the applicability of section 6 . 21
to the special use permit . Prior to getting into that specific issue ,
I 'd like to go over a couple of other related questions . At no time
since the special use permit was issued on January 12 , 1981 has there
been a legal constraint upon the permitee from constructing or
beginning construction on the premises in question . Now when I speak
of legal constraint , I ' m speaking of either Number 1 an injunction or
restraining order issued by a duly authorized Court ; Number 2 a pro-
vision in your ordinance which would prohibit the building during the
period for which the special use permit was issued , or ; 3 formal
council action in which you have expressly prohibited the permitee
from going ahead and building on the premises in question . I think
a review of prior council meeting minutes would be particularly
enlightening . On October 13 , 1981 , that particular meeting , the
then city attorney , Landol Locher , speaking in regard to whether there
were any legal constraints on the premises in question , stated that
there was no restraining order or injunction existing or pending .
That situation has not changed today . On April 12 , 1982 , Jerry
Blackbird, representing the permitee , acknowledged this fact , he came
right up in front of this body and stated there ' s no restraining order
in order to stop us from construction . Of course this is very inter-
esting when you put this in perspective . In turning to the issue
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at hand ordinance 6 . 21 , I think you ' re all familiar with it . I don ' t
go into detail on it but I 'd just like to illuminate a couple of the
present provisions . When a zoning change has been granted or a spe-
cial use permit issued for any zoning district it shall be encumbant
upon the owner , developer , contractor or whatever to begin construction
within 12 months after village council action on the proposal and to
substantially complete the project within 3 years of the construction
start ; if said construction is not begun within 12 months the rezoning
shall be void and revert to its original zoning prior to the rezoning .
At the outset we have a couple problems with szymantics. The first
sentence speaks both to zoning change and special use permit . The last
sentence in that paragraph refers solely to rezoning . Thus the ques-
tion would become did the drafters of this particular ordinance intend
that both special use permit and rezoning be encompassed under 6 . 21 .
I had opportunity to be at the Planning and Zoning and Task Force
Meeting last Wednesday night where Mr . Hawkins was kind enough to
address us. At that time he said that he felt , as I do, that it was
a simple mistake in drafting and that it would apply both to rezoning
and special use permits . I think the obvious intent of it by any
rational basis or any rational means of reading this, that it applies
to both . Once we get over that particular hurdle , the next one , the
next question , is whether any construction has begun on that quadra-
minium area since the issuance on January 12 , 1981 . When your council
met on November 22 , 1982 , the zoning official Peter Klugel , indicated
that there was no construction on the quadraminiums . I did discuss
this matter with Mr . Klugel , I see he is not here tonight , I discussed
it with him last Monday night at our ,joint meeting . He said there ' s
been no construction to date . Thus the issue becomes what is the
definition of construction . It ' s a relatively simple issue . There ' s
no strict definition set out in the zoning ordinance . Thus we have
to revert back to some statuatory rules of construction . Words are
to be given their plain and ordinary meaning in the absence of an
indication to the contrary . This is going to be in your descretion
to determine what the word construction means. Ijnw I ' ve discussed this
matter with our planning , the man who handles the planning for the
city , William Short . He is here tonight and I ' m sure he ' ll give
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his opinions but he told me that construction from a planning stand-
point ( ) actual ground breaking . Mr . Peter Kluqel who has been
enforcing your ordinance for the past how many years agrees . Ground-
breaking is the key to construction . That is how one defines con-
struction . The Task Force , in drafting the new ordinance and in
particular reaffirming this particular provision and incorporating
into that new ordinance also intended the word construction to mean
actual groundbreaking . Now I ' ve discussed this also with some adioininn
communities ; obviously they ' re not goinq to be here to present that
in our behalf tonight ; however , it ' s their opinion and what they
enforce in their particular communities , that construction means actual
groundbreaking. As I was going over this issue tonight trying to
figure out what I was going to try to present to the council , I iust
haopened to pick up the St . Paul Dispatch and just an interestinq article
on the Metronolitan News Section . Groundbreaking for Loop Heating
is the title of the article . It ooes on to read "St . Paul Mayor George
Latimar todav broke ground in Rice Park to signal the start of con-
struction on the 45 .8 million downtown district heating system.
Joining the Mayor for the ceremony were representatives of business and
government . The public and private sectors have worked 4 years to
plan and finance the system . " I think it kind of directly , indirectly
relates to the issue here . Does planning and financing constitute
construction or does actual groundbreaking . That article seems to
think that actual groundbreaking is the key to construction whatever
weight that may bear with you people . I feel the intent of the or-
dinance is to give you , the zoning official an objective method of
administering the ordinance . Question would come to your zoning
official has the permitee actually -begun the building process on the
property . I think it would be circumventing the intent of the
ordinance by stating the planning stages should constitute construc-
tion . How on earth is a zoning official supposed to administer an
ordinance when you have vague plans in a builder ' s mind or in a
builder ' s office . The only way he can objectively determine whether
construction has begun is to out on the project site and see whether
or nor actual ground has been broken . Once you ' ve determined that
there ' s been no construction within the meaning of your statute , the
next step is simple . The ordinance says the use is then void .
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Void is a simple legal term. It merely means that it no longer has
any legal force . In that situation the use that was existing prior
to the issuance of the special use is now what it would become is the
lay of the land . I think when we ' re acting on an issue such as this
it 's important for you people to consider the precedent you may set
or the precident you have already set in dealing with an issue such
as this . Now on November 22, 1982 , this body dealt with 5 inactive
permits and summarily revoked all of those . You also worked on 2
other special use permits on that particular date . One of them was
to E L Rehbein and Sons and that was for an addition of a floor for
an office . That was issued at least 12 months prior to your action .
No construction was started . E L Rehbein representative came up here
and told me it was due to economic problems . At that time council
members Maier and Benson asked the city attorney Hawkins what options
would that present the council with . Mr . Hawkins as quoted in the
minutes , they could either be revoked or extended . I agree with that .
The minutes don ' t reflect on what basis it was revoked ; however I •
assume it would have to be section 6 . 21 because there ' s no other
ordinance provision dealing with it . I would like to point out that
it was revoked unanimously. E L Rehbein did not object to that
revocation of that particular permit . I think the only inference ,
the only inference , you can take from that is that they felt the
council correctly applied their zoning ordinance to that particular
issue . Second permit was dealt with November 22 , 1982 , in regard to
an A . T . Gearman storage building . No actual building or construction
was done within 1 year of the issuance of the permit . Plans , however ,
were submitted within that year period which will be verified by your
building inspector . Despite those plans , despite the fact there was
no building this council unanimously revoked Mr . Gearman ' s permit .
I think if you go over the years past it has been the custom and
practice of this particular council to revoke these permits when
there has been no objective groundbreaking . You as a municipal body
have a duty to see that all ordinances are uniformly applied to all ,
members of your community . If you don ' t apply these ordinances on
a uniform basis you ' re subjecting yourselves to law suits . It ' s my
information from Mr, Gearman , I don ' t know if he ' s going to be here
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tonight , I heard he was ,
New Tape It ' s not to mention that it ' s a possibility that the affected
homeowners in the area adjoining the special use permit currently held
by you and E L Rehbein and Sons , they may also start a lawsuit against
you from the failure of your body not to enforce all of your ordinances
on - a uniform basis . I don ' t think it takes a lawyer to tell your
6 people what the definition of construction is . That ' s why we ' re
all tied up in court all the time , that ' s why there ' s a need for
lawyers. I think it ' s a simple issue . Now I 'm sure that sometime
tonight we ' re going to hear somebody from the Rehbein group saying
how patently unfair it would be for you people to revoke the permit .
Let ' s look a little bit at this unfairness which I ' m sure is going
to be discussed tonight . E L Rehbein and Sons have been represented
by very competent attorneys at every step of the special use process .
They were , you could no doubt assure yourselves , that were fully
aware of the ramifications of 6 . 21 . E L Rehbein and Sons is equally
cognizant of the fact that there has been no restraining order on them
to prohibit going on and building . Mr . Blackbird ceremoniously
acknowledged this fact on 4/12/82 to your body . On November of 1982
E L Rehbein had another permit revoked . Don ' t you think he would
have thought this may have some bearing on his next special use
permit? All of these facts yet no construction has begun . No
construction over 24 months since the day of the issuance of the permit .
Now I ask myself why , why , knowing all those facts would this developer
not construct . Then I ask myself how, how , could he go ahead and
act in this matter with all his prior knowledge and I said to myself
it ' s got to be pure and simple economics . In other words, money .
He- wanted to wait until the decision by the court came out ., If he
were to started building during the pendency of that particular court
action , although there was no restraining order , and lost the case ,
he would have been out of pocket a lot of money . Now he comes back
here and asks you people not to enforce the plain meaning of the
ordinance . Once again, he doesn ' t want to lose money . Like to pose
the following question to this council. Are you going to be governed
by the economical decisions of developers , are you going to uniformly
apply the plain meaning of your zoning ordinance to all citizens
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regardless of their financial status . I 'm sure that the careful and
rational people that you are that you ' re going to do what ' s in the best
interest of the citizens of Lino Lakes . Finally , I ' d like to point
out that in the event you were to void this special use permit that
does not prejudice E L Rehbein and Sons from coming back before this
sama rational body and applying for another special use permit . Thus
it ' s our interpretation and our request that you people interpret
6 . 21 , the term construction , by its plain meaning . Thank you .
B Any other comments from the audience? Blackbird .
I 'm Blackbird with E1 Rehbein and Sons . Mr . Cody' s information
in quoting me was correct . At the April 12 meeting , I think it was , f
I said that there were no restraining orders to the council when the
council tabled the request that utilities be put in by assessment ,
and the council said they would make no decision until the court
case was rendered . I guess I was trying to get you to make a
decision because there was no restraining order . Activities since
we purchased that land in 178 .or 179 we have never stopped . There ' s
well over $100 ,000 in development costs in that . Continuous from the
day of the permit a week later we platted the properties. Borings ,
something if you wanted the actual digging in the ground , we ' ve had
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engineer studies on that since November of ' 81 to get FHA to approve
the land with boring and soil samples taken . And I don ' t believe
that there is a 60 day period when we have not expended something
into the development of that project . The groundbreaking to build
a house , of course we need the utilities in to construct a dwelling .
If there ' s any questions of council of needing confirmation on that ,
I guess we can furnish it . I
M Mr . Chairman - Yes - Jerry? When you took those soil samples ,
what was the reason for that?
BB The soil out there in Lakes 7, we wanted to establish a drain
tile system to make sure the units would not flood because there ' s
a clay table , they wanted to assure we were 4 feet above the water
table on construction . To assure this 4 foot level , we do have I
believe it ' s 6 or 7 lot lines that do have to be drain tiled and FHA ,
in their requirements , wants to know who is going to maintain the tile ,
exactly what type of tiling are we going to use , screen , 4 inch pipe
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or whatever and on those technicalities to find out how much we need
to date if it ' s still in progress and it started actually in November
of ' 81 .
M Jerry , in doing so , though , that was for the preparation to comply
with the ordinance that you had to meet the perc test, right?
BB No, because that ' s severed area. No perc test . . . . . .
M Why did you take a soil sample then?
BB Soil samples , again , is to affirm the water table out there for
foundation and flooding more than anything else .
M What is a perc test?
BB I guess I think you ' re referring to perc tests in the line of
the sewer.
M No, No! I just asked the question what is a perc test purpose .
BB To 'check soil permerability I suppose .
M Right . So that you don ' t get drainage in the basement even though
you have sewer , right?
BB Could be read . into that , yes .
M Yeah, OK , so that ' s all preparation , right?
BB Definitely.
M Before you get a special use permit , yeah , what was the other
activity you were making reference to?
BB That ' s soil borings .
M That ' s what we just talked about .
BB FHA submissions for soil conditions on the soil borings . Since
the platting we ' ve cut off; the outlots themselves have accumulated
$100 , 000 worth of assessments. Lantern Lane , the improvement of that ,
all relating to development of Ourlots H & K now,
M However , you sold some lots in that $100, 000 expenditure .
BB In the H and K lots .
M No, I didn ' t say H and K but I say on the $100 , 000 expenditure
you sold lots.
BB No.
M None?
BB None ! There ' s none sold in Block 11 , none sold in Lakes 6 and
none in H and K .
M Why didn ' t you sell 'em?
BB They ' re on the market . The FHA is the key thing here . We ' ve
been fighting that for 2 years to get FHA financing.
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M And they wouldn ' t finance it , right?
BB They will not finance them until we get that area feasibly
approved.
M By whom?
BB By FHA .
M That ' s what I said and FHA would not do this?
BB Not without these studies .
M And the studies that you give them they still don ' t approve it ,
right?
BB They want more detail . Everytime .
M OK , that ' s the end of my questions .
B Jerry , I ' d like to ask you a question . We have a lot of these
surface soil tests that you ran , the tests required were questioned
during this process whether it was a project of single family homes
or not it was just indicative of the process of building , right?
BB On H and K lots , yes.
B In planning?
BB In planning .
B Any other questions?
C May I ask Mr . Blackbird a question? Have you done any ground-
breaking whatsoever since the permit ' s been issued in January of 81?
BB There ' s no way we could put up a house because there ' s no utilities .
C So You have done no groundbreaking?
BB To build a house , no.
C And that is your purpose. in being the developer in that area is
to build homes?
BB Yes, to build homes .
B Bill, I 'd like to ask your opinion , if I may . What is -construc-
tion and what is planning? You ' re a planner , maybe I 'm asking the
wrong question . (Laughter )
S Well , in preparing for discussing this with the council tonight ,
I went through ordinances that we have in our office in search of a
definition for construction . It ' s a pretty commonly used term that ' s
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not defined in any of the ordinances that I use , so I go back, I
guess I revert , to my own practical use of the term construction which
as I told Dave Cody at the last Task Force Meeting and Planning
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Commission meeting , was I consider it breaking ground . Planning on
the other hand could be part of the entire process from inception of
an idea all the way to groundbreaking , I guess is the continuous pro-
cess from an idea to the point where you ' re ready to construct .
Sometimes planning goes along with construction so I did , the only
definition I could find for construction or to construct was in
Websters Dictionary and there were a number of definitions but if I
had to refer to that one to the definitions I saw in there for to
construct it is to organize things in a logical order which is , I
don ' t know whether our council would interpret it that way or not ,
but it ' s the only definition I found for construction .
Any other questions? Yes?
C? While we ' re referring to Websters Dictionary , I looked for one
too and it , the word construct , and it comes from the Latin word
"Com" which means together and struere which means to pile up and the
Websters definition that I looked at says something filled , whatever,
that means.
S There ' s a lot of definitions.
B Any other comments from the audience at this point? Any
questions from the council?
E In Mr . Cody ' s statement he pointed out there had been no formal
action taken that would restrain the developers from building . This
council did take action on February 8 indicating there could be no
further discussion on the utility placement until the court case
was finished and without utilities , construction could not begin
and therefore I would say that would be a formal council restraint .
Is it not?
C It is my understanding that the fact that the council is not
going to formally open the thing to bids , and the fact the construction
project in no way encumbers or prohibits the builder from going out
on his own and financing his own utilities . I don ' t see what merit
that has.
E Other than the fact that the council said they wouldn ' t consider
this matter till finalization of the court action .
C Utilities issue , correct?
E No, because the matter of the bid was completely null and void
at that time .
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C Well , could I ask you a question perhaps? Do you feel
Mr . Blackbird could have gone out and financed the utilities on a
private basis?
E I wouldn ' t have any idea, but I wouldn ' t do it .
In other words , economically - they have not done that then .
C If it was economically feasible he could , would you not agree
with that?
E I would say they certainly could have .but I don ' t think it would
be logical under the situation to go spend any money , number 1 it
would be a big gamble .
C Right , as an exonomical example .
E I said as an extenuating circumstance over and above not having.
the money to actually put the building up .
C That ' s precisely my . . .
E Taking a chance on the building because with the utilities it
would be quite possible for him certainly to go out and construct
the utilities and put them in but this council was not, going to take
discussion of any utilities being placed in there whether - he footed
the bill or not .
C Discussing my point there is no formal constraint on Mr . Black-
birds going in and developing except for the fact that he did not want
to economically gamble .
E Well I guess I disagree because this , the minutes clearly state
that Mr . Maier moved to table consideration of this matter until there
was a court decision and as far as the bids went they were totally
null and void because this was February 8 and there was supposed
to be a decision by March 9 . Obviously that bid had nothing to do
with it . We were tabling consideration of the entire matter of Lakes
Addition .
C I think that ' s subject to consideration by members of your countil
to which each of you interpreted by Mr . Marier ' s motion that day .
? I was here that day and I would submit that the reason the council
took that action was not to- interfere with the pending court case .
That 's the only reason Jenrichs put sewers in themselves. That ' s
not financed by anyone else .
Oh , No. The City sold the bonds - everyone of those sewers
in Lakes Addition - everyone of. them. Jenrichs didn ' t finance
anything .
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M And we fell a little short on that , also.
M Mr . Chariman , Marilyn , for clarification on my motion , I think
Jim pointed it out , I made the motion not to interfere with any court
actions. It also gave the developer every opportunity to go on his
own and do what he or she felt like doing, and evidentially I guess
there was nothing done . And today we ' re confronted with , I don ' t
think what was done in the past the thing we ' re talking about is
what was done today along with what ' s the future going to bring .
Jerry, are you in a position to develop that tomorrow?
BB I have another stipulation later along in your new business
to do the the assessments with the acceptance for your approval .
M Oh, you ' re coming to the council for more assessments , is that
what you ' re doing?
BB The same thing where you tables us.
M I see , OK .
M Well, Mr . Chariman , I think the path is pretty clear-cut .
B Any other questions? Any other comments?
H I would like to make one comment because there has been a lot
of focus on section 6 . 21 and I want to give you my opinion on what I
feel the court would focus on here . This is really a question of how
much activity is necessary by a land developer in order to have what
I consider a vested right to continue that activity whether it ' s under
a special use permit that is declared void under your ordinance ,
whether or not it ' s under a zoning classification that the city council
subsequently rezones and prohibits this type of activity or whether
or not it ' s on a plat where somebody begins activity to develop the
plat and the lot size or something else changes and therefore becomes
not in performance with what the city desires . That ' s what I 'm, how
I feel the court would view that , not strictly on a construction
basis but what activities has the individual developer undertaken to
further assure permitted activity so that he would have the right to
continue that activity in spite of the fact that the permit is now
void or the zoning has changed . In my opinion , in looking at all
of the activities and the amount of expenditure the developer had in
here , I find it extremely hard to believe that a court is going to
say at this point in time that the developer has not a vested right
to continue under the permit . He has done everything in his power at
this point in time to further the activities that were allowed under
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that permit and therefore he should have the right to continue the
activities . I have reviewed a number of vested rights cases in this
regard and I think that ' s the sole issue and I found instances where
there have been activities where developers have not invested nearly
the time nor the expenditure in a development and I feel that the case
law in that regard as well as the equity , quite frankly the equity
in this case , are such that the court is going to allow the developer
to continue . To put it more hypothetical. to you we have a decision by
Judge Dablo in 1982 that indicated that this proposed special use
permit is in conformance with the ordinance regarding its issuance
and performance with the draft comprehensive plan at that point in
time and we have a decision that Judge Kameyer has issued indicating
that the ordinance and special use permits are not unconstitutional .
It ' s quearable what would happen if Mr . Blackbird came back in with
an exact special use permit and asked you to approve it verbatium .
M Mr . Chariman , Bill, we have an ordinance and according to Para-
graph 6 . 21 it talk& about 3 years . It' talks about 12 months , OK is
that right? (Right ) Now, Mr. Blackbird stated in 1979 which I think
is a little over 3 years , whatever month it might be , close to 3 ,
that they have been working on this. And all , ever in the last 12
months , as far as I know, I think we have to show cause I don ' t think
anything has been done in that area as far as construction goes . I think
your point ' s well taken . He has previously done that . However , we ' re
confronted with , again tonight another request to support the con-
tractor in his efforts , I think that ' s coming . I -.think Mr . Blackbird ,
Jerry, if I 'm wrong say so and I don ' t think at this point in time
that we ' re in a position to start supporting all these situations
where it costs the taxpayer and the village a relatively large amount
of money . We ' ve already lost , what is it Dicki $50,000 - alright
$80, 000 and we as citizens along with myself and everybody out here
and all the constituants out there have paid that bill . Now here
again we ' re asking for the same situation and the devel.oper themselves
say they don ' t have the money. Council that brought this forward
say they don ' t have the money and I think it ' s time we come to the
conclusion that we cannot support a private business on taxpayers
dollars . It ' s time that we came to the conclusion that Hey , if you
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want to go into business it ' s fine , we ' ll help ' ya but only in aiding
to the rules of the city , not 'in money , I leave it at that .
E in the beginning is if it were any-
thing other whether the special use permit has been followed through
history not whether the developer is going to
come further on in the meeting and ask to float bonds to put in his
sewer and if he wishes to do that , he ' ll have to get in line behind
everybody else that we ' ve already said we ' re looking at a policy
whereby we ' re going to discontinue this because we just don ' t feel it ' s
in the best interest of the city although we have stated several times
that each development and each developer will be looked at individually
as to the necessity or whatever but I do think that this council should
consider the fact that the 2 seperate court cases the judges have
indicated that this special use permit is valid and as Bill said if
you revoke this special use permit as Mr . Cody has suggested you would
have no valid reason for denying it to become tomorrow and apply for
it , so why fool around with the Mickey Mouse other than to get
his $125? And if that ' s what you want , I guess we ' d be $125 richer
or whatever the permit fee is now, but the case being , why is it nec-
essary to go through a lot of business and red tape when you ' re not
going to be able to deny this man a special use permit if you revoke
this one because 2 judges have already said , the 2 were very valid .
BB I want to correct myself. When Mr . Cody or you asked Mr . Marier
if we had any physically dug anything , we do have a strom drain on
Outlot H that cost $7 , 200. So the ground was broken in that respect
and the assessments it ' s a petetition asking the City if they will
assess it , it ' s the most economical way of going . Even
that ' s assured now because you ' re requiring a bond I guess
we look at history , it has to be taken out at his own risk.
Mr. Johnson .
I arrived a little late but couldn ' t help hearing Mr . Hawkins
and Mrs . Elsenpeter also indicate they would be hard pressed if a
petition comes before them again for a special use permit or rezone
that particular area. Well , we comprised them of the situation that
since May we 've been working on a land map , rezoning ordinance ,
that specifically prohibits multi-family in that particular area.
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There ' s just no way the Planning and Zoning Commission would recommend
to council multi-family in that area , so I can ' t see the rational
that this special use permit , of which no activity has taken place in
a number of years and of which by now on the Planning . and Zoning
Board and Mr . Blackbird indicated more than one time that they coul"
build anytime . They were just trying to acquience to the concerns of
the citizens in that area, so the Planning and Zoning would be hard
pressed I think to recommend any multi-family in that area. Any
with the Planning and Zoning map, nor the legal . . .
The legal . . .
There ' s a moritorium on . . . .
E I believe we have to allow it .
J No there ' s a moritorium on this , Mrs . Elsenperter . Not on the
Any other comments?
C I have just one . It says here your attorney is advising you to
take a sufficient activities test in interpretation of this ordinance .
Somehow I don ' t read that sufficient activities test in this big an
ordinance , this directly deals with construction not activities.
So when you start getting down to the point where council is advising
the equitites , I mean that ' s the final line when you don ' t have any
other statutory construction or anything else to get down to equities .
That ' s the final (defense ) point and I don ' t think that flies here
when you ' ve got a plain simple meaning in your ordinance that states
construction must take place within 12 months.
Any other comments?
Mr . Maier , I ' d like to ask the city attorney: Are we to follow
your same advice in the future on all special use permits?
H It depends on the level of activities .. In my opinion this
activity is far and activity necessary to give the per-
mit holder vested rights in ' the property.
R With some of these special use permits could go on for years with
part of the person who receives the special use permit that their
supposed, intent is to construct .
H Unless you put some conditions in your permit to clearly
indicate what activities must be undertaken by such and such a time .
R Why do you suppose that the wording in 6 . 21 that they put some
time lines in as 12 months or 1 year or 3 years from the construction
start . Why do you suppose those time lines are there?
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H To give the city council the opportunity to view the issuance
of these permits to determine whether or not they are still compatible
to the existing needs of the areas and give them an opportunity to
review these matters . There may be a permit issued and the existing
live uses in the area are such that it fits in very fine according
to your plan but some years down the line you may feel all of a
sudden that development in that area is taking a different track and
it would give you an opportunity to review that.
R I have trouble trying to figure out where this time span is by
your definition here as far as all around interpret
whether or not depends on or we could have the
city full of unfinished buildings , unfinished things that would be
done under . the special use permit that was granted to them for
next 20 years they would be set .
H But if they abandon that use then I would say you were probably
saying abandon use .
R No, I 'm not saying abandon use . - No, I ' m saying their intent is
they come before us each year with a new, they come before us and
declare their intent based on the special use permit and it ' s year
15 and they ' re still monkeying around . We could have a city full
of unfinished , unconstructed buildings and you know what that would
look like .
I can ' t quite believe what you ' re saying here that these time
lines as put into 6 . 21 don ' t mean something or aren ' t more specific
in what you outlined .
H I think they ' re very specific . They give us the opportunity
to review it at the end of 12 months to determine whether or not
they ' re seeing any activity according to the permit and it also gives
you the opportunity to look at it at the end of 3 years .
R But , Bill , this leaves us hanging here with what you said .
With this great length of time because . . .
H No, because if there is no activity in that first 12 month
period , then you are well within your right to revoke that permit .
OK.
H With the issue we have this evening between council and myself is
how much activity is necessary in order for an individual to con-
tinue . It ' s the same question you ' d face if somebody came in on a
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and he sold the property as commercial and the property sat there for
3 years and he put in a parking lot and then you decide that that area
can no longer be commercial but you go back to residential. Then how
do you make a determination whether or not you have the right to
rezone it back to residential and cut off any further activities .
We have to evaluate what activity has taken place on that property
and I think there are numerous decisions in Minnesota that have done
that and have set down some guidelines.
R Mr . I just have one question here . By the definition
of construction I guess we ' re hung up on that again .
and the planning phase and other people do not . We , the work I do let
bids for the contract for construction and let me assure you that our
definition for construction that means that we put in , my dad put in
3/4 to a million dollar project and when that ground is broken , is
when we begin construction . Up to that point it ' s purely the planning
phase . And I , after listening at this meeting , and hearing the
questions, I have a• problem with meshinn this whole thing in , the
planning phase along with the construction . Construction to me
means to begin building. -
H And that ' s what I 'm saying . I think that everybody looking
at that section of the ordinanne and I ' m saying the law is going
to lock at the activity to determine whether or not that individual
has a vested right to continue and that my review of those decisions
gives me , I 'm under the opinion that there has been enough activity
at this point in time to continue under the law.
I 'm not debating with you because the first . . .
No, No. I understand.
K Mr. Mayor , listening to Bill and Jerry and some of the people
here reflecting back this has been going on for s3 many years , I ' d
like to forget to tell you the truth . Dave has referred to 6 . 21
zoning , the zoning change performance , and as Bill said is there
a black and white , Dave says its green and Bill has just said that
Hey, it ' s there for a reason . You can change it or use it as the
zoning permit reads but I got 2 things I 'm hearing . First thing ,
Bill, which I fully agree with you , is that the courts have made
a decision . They ' ve said that the special use permit in all shades
of the imagination whatsobe it legal and thev ruled on that .
Secondly , I look at the zoning change performance and I look at other
special use permits done in the city and I ask myself if we ' re going
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to do something for one person we have to do the same for the
others . And if we ' re going to be in any conformity whatsoever as
has been so stated by Dave that we ' re open to law suits which it
don ' t bother me ; but I 'm just trying to get the point that there has
not been any construction . Now that ' s one . Number 2 the courts have
laid down the law stating what special use permit is and they reacted
to that law and told us exactly what the decision was . Thirdly as
Larry Johnson says or before the fact of local Larry I agree with you
because we haven 't enacted on this you know, the new laws , because I
asked the question if this were actually grandfathered in . I use the
work grandfather because it 's before the fact - back in 1979 . Then
again you look at something , Jerry , and I remember asking you this ques-
tion before , not once , 2 or 3 times , ' ya know, you were talking about
perc tests , then you knew I asked ycu that many times about perc tests
but you again said explicity that you did not and had not started
any construction whatsoever . And that to me in this type of a situa-
tion is saying you ' re past the time and granted say you can come back
tomorrow and say I 'm applying for a special use permit -and how could
we stop it? But there again , you know you go right back to 79 and
now its all the way back to 83 . That ' s a long time and you haven ' t
done anything and you ' ve been restricted by courts , yes , I agree .
Not , I take that back , but the decision most us here , we know what the
courts have said . We know what 6 . 21 is saying and I 'm only saying
to this council and to you people out there that if we ' re going to
be fair to one we have to be fair to all and handle them accordingly .
Go ahead , Jerry .
BB One other thing I think is rather important . The special use
permit , the last one that we got to satisfy the courts , it was dated
July 22, 1981 . That ' s 81 dash something . That special use permit was
issued I believe , with the understanding that there would be timing
and some planning in the stated development it was issued to Metes and
Bounds description and subject - to the stuff we did on the plat , the
landscaping and building architectural prints . It wasn ' t issued to
Lots 11 thru 94 or whatever so the permit in essence waha issued under-
standing there would be planning because it was Metes and Bounds , not
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Lot and Block . But to be a major development would be the platting
of the land . I guess from a cost standpoint and the fact that we
talk of turning a shovel of dirt , surveyors sticking poles in the
ground must be aid to development of some type without survey stakes
and pivot points out there .
J I work for the Burlington Northern and I 'm in the operating
department and before that I was in the engineering department
In 1974 and thereafter we had a few points
all come in 2
phases, there ' s engineering , there ' s preliminary enqineering and
there ' s construction of it . Preliminary engineering is the soil
borings, the mid study work is to see if the project is feasible .
Northtown yard had almost , according to the project manager , had
almost 1/4 million dollars in prelimary engineering . At that time many
of the AFC ' s are dropped during the preliminary engineering stage
because they are not feasible . When they are feasible then you have
the construction er•a and that ' s when work commences , the grading
contracts are let and the work begins including the grades. There ' s
been no noticeable difference . I don ' t know if Mr . Hawkins has been
down in that area but there ' s been nothing done , no grading , nothing ,
as far as construction . As far as I can see with the preliminary
engineerinq conducted , nothing is done .
1 What percentage would be considered to be even a substantial
or reasonable amount.
This is a probably 5 to 10 million dollar project . If there
was $500, 000 put into it , it would only be 1090 .
H There is no percentage test . I wish I could say you need this
much , but each case I ' ve been aware of has been determined on the
respective backs of the development and what activities have occurred .
L Was it planning that got into these other special use permits .
H The platting , the platting process , the engineering process ,
the architectural fees, all of those items .
L The other ones that were dropped by the council that were revoked
did they also have some kind of planning?
H It is my understanding that there was nothing , nothing had been
done in any of those instances that even came close to these and
probably I had someboay mentiun something about the plans after the
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permit but it is my understandinq everything ' s before the council
with absolutely nothing done at all after the permit was issued .
L I would say this was a difference in scope not a difference in
Scope of activities . . .
M Mr . Chairman , I refer to Bill Hawkins letter, page 2 , paragraph
3 last sentence . Since the court indicated neither the special use
permit nor ordinance 56 were unconstitutional , it is now necessary
to determine the action the city may take on this permit under section
i
6 . 21 of ordinance #56 , I think we ought to do that . r
B Public hearing is in process .
M I just, I ain ' t making the motion . I 'm .just making the sugges-
tion ..
B Are there any more comments?
R Just one other comment , Mr . Mayor , if I may . Even the special
use permit when you read that it says to use part of Outlot H and
i
Outlot K in Lakes Addition 7 for the construction of R5 , town houses ,
quadraminium style , it even referes to the construction type , for
preliminary plats of Lakes Addition 7 shall revert to the actual
construction type . I 'm really racing this through my mind here and
trying to figure out where this planning and where this construction
thing is and ever: the special use permits refer to the construction in
a physical type of a building put up .
B Any other comments?
I
BB My last remarks , Mr . Mayor , at no time have we not proceded with .
the development of that property .
B Any more comments?
Indicate a motion for
I so move
K Second
All those in favor
E Opposed
Motion carries.
At this time to sum up what I think has taken place here today
to deal with this issue . First of all I took a look at Websters
New World Dictionary to find out just what the, definitions for the
key issue and I brOLaht forth the exact wording from the dictionarv ,
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second edition of the American language and I thouqht that was the
important one in dealing with that . I looked up #1 Planning - it
says a drawing or diagram showing the arrangement and horizontal
section of a structure , project design schedules, method of proceeding ,
outline or sketch to devise a scheme for doing , making or arranging
a plan . Then I felt it was important to follow through and look
at the construction definition . The act or process of constructing ,
the way in which something is constructed , mannor or method of build-
ing , -something constructed , structure , a 3 dimensional work of art
constructed of more than one material . Tn carrrying thal one step
further , I thought I should look un what building meant. Building
anything that is built with wallG and a roof as a house , factory ,
or structure . I then turned to 6 . 21 and I think we ' ve all read
that and 1 think the question at this point is pretty well centered
onC;,cy�;, ,� c construction . I ' ve talked to the building inspector
touay . He was unable to begin to be here tonight , he had another
committment. He indicated he felt construction was building something
and that ' s what he terms in our building department , that depart-
ment asks that he bases his logic and thinking upon . He says no con-
struction has been done at the site . This proieet has basically
been in an inception since 1979 . Jerry even stated that here
tonight . I doubt very much if 50°0' of the project has been completed
since 1979 . In February of 1980 permit number 27 was given to E L
Rehbein and _ permit that thev might be allowed to build
under but thev (failed to construct ) under that . Again in 1981 ,
81-05 special use permit was given to E L Rehbein and nothing con-
structed under that permit as well . I think if you look at just in
the last 12 months , nothing has been constructed in that area.
We talked about 10/13/81 where Mr . Blackbird said specifically ,
nothing has be-n cnnst.ructed . Nothing stopped it from being constructed
or 12/82 he made that very same statement . I don ' t believe the city
is obligated to put in city sewer , water , utilities for any develop-
ment , although I think this council shares that belief we have agreed
to take it on an individaul bases. Also, I think if they felt it
would take longer , they would have had the right or obligation to
apply for a rezone , a rezone that would require a 4/5 majority of
the council at the time and it would give them sufficient time to
build if they felt the planning process was going to be a long
lengthy one . Possibly should have taken a long look at that
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ordinance for that phase of the ordinance . Mr . Blackbird has now
stated he is coming in with 3 phases , does not conform with the ori-
ginal special use permit . I also look at intent of prior council when
we talked about the word construction and
the ordinances . I think of construction as building ; planners or
attorneys or developers may have different opinions but I think
they felt were common terms but
recognized and I think }hat they recognize the difference between
planning and building at that time . I don ' t want to confuse a build-
ing permit with a special use permit. A building permit according to
our building inspector allows a person to continue building as long
as they are progressing and maybe that ' s what you ' re misconstrueing ,
Jerry . We ' ve dealt with ordinance 6 in some instances and then bounce
back to ordinance 56 , where we apply (Change tape )
2 special use permits , one to E L Rehbein as Jerry indicated that it
wias an economy situati"n where they did not go ahead . They Cid have
plans that were presented to the Planning and Zoning Board . A. T .
Gearman also permit was revoked at that time . Plans and ac}ivity
were done on that particular case . The project might not been
as big but it could very well be in}errreted that the costs per say
were the planning and operations and the things they went through
at that time were equally as great if not greater in sufficient
quantity of costs. Jerry also indical-ed that the land will not go
to waste so I don ' t think we have to deal necessarily with the money
going down the drain . He said they ' ll be building homes if nothing
else in that area and that ' s probably in council minutes . I agree
with Bill , he has a right to his opinion . I disagree with what
planning and construction is and I think if you talk to many many
people on the street they will also share a difference . Unfortunately
that ' s why we have courts and attorneys and the reason things are
bounced back and forth many times . I think we must follow
through Y permits . We must be uniform with this council
and unifnrm in applying our permits. I agree there ' s nothing stopping
M:. Blackbird from coming back from the process even if that was the
only thing that he had to do.
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We have the right and obligation to follow what we set as a as a
right and a precident . If it. means $125 *out of his pocket or if
E L Rehbein cannot afford that amount of money then maybe they
can ' t afford the project so I don ' t think we can look at the dollars
and cents there . I think the special use permit in process is a valid
process with the 6 . 21 of the ordinance to define this and I
think under the circumstances we shoulc decide the issue thoroughly
on the merits of a comment our attorney made on formal 6 . 21 and
back specifying that the project has to begin in 12 month and be
substantially completed in 3 years.
Those are some of the things I got from the comments here . You
have a comment?
E _ I would have to agree with you in one
respect and that is that we ' ve gotten to the stage of the special use
permit in light of himself and as we have so far I think
we are going to carry it to the letter of the law as you have said ,
then we are going to have to go back and review some of those ordin-
ances as there aab^ut 10 or 15 that I can think of that have not had
one thing done to them and they have been on the books since (1950-
1960) and the people just keep coming in and saying someday we ' re
going to have a gas station there and we want to keep it that way ,
nothing has been done so I think in effect the course this council is
taking should consider that . Secondly T do believe that use have to
look at each case on its own merit and in this situation I happen to
feel there were some extenuating circumstances in waiting for reports
to be completed . I have to hones`ly believe that if we deny this man
the continuance of that special use permit anyone who votes to do so
wi-11 be in contempt of court . I happen to think the Task Force ,
the penple would be in contempt of court in that they have obviously
rezoned that area non multiple family and a court has said it can be
that and therefore this council could never rezone it anything but
that . The fact that has not been rezoned will no} stop Mr . Blackbird
from coming to the city tomorrow to apply for a new special use permit
in which case Dick is right . There certainly isn ' t any reason why
you couldn ' t revoke it tonight but it have to be reissued tomorrow
because you would have no valid reason for denying it .
M Mr . Chariman , I think Mrs . Elsenpeter ' s point is well taken . I
think we ought to and I 'm going to make a motion here but I think to
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further expand on her input here is that we ought to look at the
other 10 and you ' re right , Marilyn . And there are more than 10 and
I would suggest that we have (hose to us by the next meeting and act
on them. However, at this time I don ' t think we ' re in contempt of court.
The court action was that everything was , as far as the special use
permi+- was intact and the ordinance was not unconstitutional is the
way I understand it . And I 'm not doing this to be in contempt ;
however , I ' m doing it because of no development has been made , no
attempt has been made nor any other input has been made other than
to come tonight under new business , so therefore I ' ll make a motion
to void the special use permit 51-05 and revert it back to its
original zoning prior to rezoning that was requested and it leaves
the door open , any other application can be maHe without any other
decisions but to handle the input at that time .
K Second it .
We have a motion by Mr . Marier and it ' s seconded by
Any further discussion?
Mr . Chairman?
Yes .
E I request a roll call vote .
OK
At this p-int , we will call for the Question taking a roll call
vote . I ' ll start with Mr . Kulesavich .
R Mr . Mayor you stated again here that all we ' re voting on is to
revoke the special use permit.
M We make it void and revert it back to the original zoning prior
to the rezoning and it would stay in the state it was in , along with
that to review the other delinquent special use permits that '-he city
has for the next meeting:
Yes
Yes
Yes vote is for revokation
Don-yes
Vern-yes
Marilyn - no
Chair vote yes
B Special use permit is revoked . We also have another special
use permit on the agenda this is a by city officials , permit
#27 which is the other one tha24this public hearing is on . According
r K.
to Pete there is no activity under that permit and there hasn ' t been
in the la-st year , in fact the las+ 2 years . What ' s the date of that
permit , do you recall?
H Excuse me , I guess there 's a question of whether or not it ' s
valid in view of the courts order on February 24 , 1981 in that the
findings indicate that as of the date of the findings in connection
with the suit the specicl use permit 27 was still in effect and the
parties to the action agreed a new special use permit was to be
to allow this use . It would appear that all the parties which
include the city at time elected to deem
that permit null and void and a new permit was issued .
i` was never officially declared
B Well , let ' s make it official .
R I so move .
M I ' ll second it .
B Motion by Mr . Reinert , seconded by Mr . Marier , to revoke special
use permit #27 . Any further discussion?
All in favor
Opposed
Motion carried
Ci*ing public for new zoning map and zoning ordinance . At this
time the Planning and Zoning Committee did not act on that at the
last meeting . We anticipated that they might . I was aske�+ to table
that . I also move Mr . Chairman .
Second
Motion by Mr . Marier and second by Paul Any further
discussion?
All in favor
Opposed
Motion carried .
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