HomeMy WebLinkAbout2020-042CITY OF LAKE ELMO
RESOLUTION NO.2020-42
A RESOLUTION DENYING A PROPOSED AMENDMENT TO THE CONDITIONAL
USE PERMIT (RESOLUTION 2018-077) FOR THE PROPERTY AT 11530 HUDSON
BOULEVARD NORTH
WHEREAS, the City of Lake Elmo (the "City) is a municipal corporation under the laws of
Minnesota; and
WHEREAS, the City adopted its 2040 comprehensive plan in October 2019 to guide the
development of the community ("Comprehensive Plan") (See Ex. 18); and
WHEREAS, the City has adopted a zoning ordinance and other official controls to
implement the Comprehensive Plan; and
WHEREAS, Stillwater Area Public Schools — Independent School District 834, 1875
Greeley Street South, Stillwater, MN 55082 ("School District") is the current owner of property at
11530 Hudson Boulevard North, Lake Elmo, MN 55042, Parcel ID: 36.029.21.43.0001, legally
described as Lot 1, Block 1, Four Corners ("Property"); and
WHEREAS, the School District purchased the Property on October 23, 2018 from EN
Properties, LLC ("Developer"); and
WHEREAS, prior to the School District's purchase, the School District and the Developer
made several land use applications to the City; and
WHEREAS, on May 4, 2018, the School District applied to the City to rezone the Property
from Rural Development Transitional to BP — Business Park (`BP district"); and
WHEREAS, at the time, the School District also sought a zoning text amendment to allow
school bus terminals as a conditional principal use within the BP district; and
WHEREAS, the School District also sought a Conditional Use Permit to operate a school
bus terminal, i.e. a school district transportation on the Property; and
WHEREAS, the Developer sought Preliminary and Final Plat approval to subdivide the
then -existing parcel at 11530 Hudson Boulevard North to create the 11-acre Property to be
purchased by the School District; and
WHEREAS, at its meeting on July 17, 2018, the City Council approved the subdivision of
11530 Hudson Boulevard North and the creation of the Property, the rezoning of the Property to
the BP district, the zoning text amendment to allow "bus terminals" as conditional uses in the BP
district ("Land Use Approvals"); and
WHEREAS, on July 17, 2018, by Resolution 2018-077, the City approved a "Conditional
Use Permit for a School District Transportation Center for a Portion of the Property located at
11530 Hudson Boulevard North" ("Conditional Use Permit" or "CUP")(Ex. 2); and
WHEREAS, the CUP required, among other conditions, that "9) The property shall be
connected to sewer and water prior to operation of the bus terminal" ("Condition 9"); and
WHEREAS, the School District occupied the Property and began using it as a school
district transportation center/bus terminal in late October 2019; and
WHEREAS, the Property was not then and is not now connected to municipal sewer and
water; and
WHEREAS, on November 5, 2019, the School District applied for an amendment to
Condition 9 of their CUP as follows: "The School District may operate its bus terminal at the
property using the well and septic system (septic tank and temporary toilets) either until the School
District connects to City sewer and water or until December 31, 2020, whichever occurs first. The
School District agrees to connect to City sewer and water within 30 days after it becomes
available." ("First Amendment Application") (Ex. 10, p. 2); and
WHEREAS, on January 21, 2020, by Resolution 2020-004, the City Council denied the
First Amendment Application (Ex. 11.), and directed staff to institute the process for potential
revocation of the CUP; and
WHEREAS, on March 12, 2020, the School District applied for the present amendment to
Condition 9 of their CUP as follows: "The School District may operate its bus terminal at the
property using its existing well and a new septic system as approved by Washington County, which
shall be installed by August 30, 2020. The well and septic system may be used until the public
services are installed and the connections are made to the Property." (Ex. 1.) ("Second Amendment
Application"); and
WHEREAS, the School District has met all submission requirements of City Code §
154.106 and the City determined that the application was complete on March 13, 2020; and
WHEREAS the Planning Commission held a public hearing on April 13, 2020 to review the
Second Amendment Application, following mailed and published notice as required by law; and
WHEREAS, prior to the public hearing, the School District was provided a draft staff report
notifying it of the basis for the staff s recommendation to the Planning Commission, including
supporting documentation, and the School District was provided the opportunity to submit
documentation to the Planning Commission in advance of its April 13, 2020 meeting; and
WHEREAS, at the April 13, 2020 meeting, the School District was provided the
opportunity to present their application; and
WHEREAS, at the close of the public hearing, after discussion, the Planning Commission
voted 6-1 to recommend approval of the amendment to Condition #9 with the additions as follows:
"the property shall be connected to City Sewer and Water prior to
operation of the bus terminal " to "The School District may operate its bus
terminal at the property using its existing well and septic system until a
new septic system is approved by Washington County, which must be
installed by August 30, 2020. The well and septic system maybe used
until the public services are installed and the connections are made to the
property. Any changes to the site plan must be approved by city staff.";
and
WHEREAS, the City Council considered the Second Amendment Application at its May 5,
2020 meeting; and
WHEREAS, the City Council has reviewed any and all materials submitted by the School
District; considered any and all oral and written testimony offered by the School District and all
interested parties; considered all historical background of the Property, the City's Comprehensive
Plan and Zoning Code, and reviewed all material presented by City Staff, including the Planning
Commission staff report dated April 13, 2020 and the City Council staff report dated May 5, 2020
along with information presented at the May 5, 2020 meeting.
following:
NOW, THEREFORE, the City Council of the City of Lake Elmo makes the
RECITALS
FINDINGS
The above recitals are incorporated as if fully set forth herein.
II. APPLICABLE ZONING LAW AND REGULATIONS
A. Minn. Stat. § 462.351, et seq. grants the City, for the purpose of promoting
the public health, safety, morals and general welfare, the authority to regulate the
use of land within the City through zoning and other regulations.
B. City Code § 154.002 outlines the purpose of the cty's zoning code, which
includes:
A. Protecting the public health, safety, comfort, convenience, and general
welfare;
B. Implementing the City of Lake Elmo Comprehensive Land Use Plan;
C. Promoting orderly development of the residential, commercial, industrial,
recreational and public areas;
Comprehensive Plan
C. The Comprehensive Plan includes "Visions, Goals, and Strategies," of which
one is Balanced Development & Growth (BDG).
i. BDG Goal #3 is, "Recognize that sewered development is planned
specifically for guided areas and that those areas are appropriate for
increased density and commercial uses." (Ex. 18, p. 2-10.) Among the
strategies to support Goal #3 is to "[e]ndorse the land use plan and apply it
consistently." (Id.)
I BDG Goal #4 is, "Support and Create a land use and phasing plan
that promotes contiguous development, that has flexibility to respond to the
market, and results in a balanced land use pattern." (Ex. 18, p. 2-10.) Among
the strategies to support Goal # 4 is "Prevent premature development of
areas within the urbanizing areas to ensure adequate capacity within the
infrastructure is available." (Id.)
D. As noted in the Comprehensive Plan, "[t]he City's objective is to plan for
phased, contiguous growth to ensure adequate infrastructure and capacity are
available to support development." (Ex. 18, p. 3-24.) The Property lies in the South
Planning Area for the Metropolitan Urban Service Area (MUSA). (Ex. 18, pp. 3-11,
Map 3-2.)
E. The Comprehensive Plan distinguishes between the MUSA and areas outside
it. Notably, "[p]ortions of Lake Ehno are within the Metropolitan Urban Service
Area (MUSA), providing sanitary sewer and water services to included properties.
A large portion of the city remains outside these boundaries through 2040 and is
generally served by private well and septic systems (individual and community) (Ex.
18, p. 8-12). The Property is within the Business Park zoning district, which is a
sewered zoning district in the Comprehensive Plan. (Ex. 18, at p. 6.)
F. "The Existing and Future Sanitary Sewer Map (Map 9-1) shows the current
sanitary sewer infrastructure as well as planned infrastructure to serve the MUSA
areas in accordance with the Future Land Use plan in Chapter I" (Ex. 18, 9-2; see
also, Id. p. 3-18.)
G. Specifically, "[t]he 2020 Staging Plan includes the extension of a second
trunk sewer from the MCES Cottage Grove Ravine Meter Station to serve the
portions of the Southeast Planning MUSA from Lake Elmo Avenue to Manning
Avenue." (Ex. 18, p. 9-3.) Map 9-1 highlights the existing and future sanitary
sewer system.
H. Finally, as noted above, the Comprehensive Plan expressly provides for
conditions under which septic systems are allowed: "Septic Systems -are allowed for
all land uses within the City outside of the planned sewer service areas in
accordance with Chapter 4: Subsurface Sewage Treatment System Regulations of
the Washington County Development code as adopted by reference by the City of
Lake Elmo. (Ex. 18, p. 9-13.)
Zoning Code
I. City Code § 154.106(A) defines a "Conditional Use" as "land use or
development as defined by ordinance that would not be appropriate generally but
may be allowed with appropriate restrictions as provided by official controls only"
after the Applicant meets their burden to prove conformity with that section and the
City makes specific findings required by that section, which include:
2. The use or development conforms to the City of Lake Elmo
Comprehensive Plan....
7. The proposed use will not be hazardous or create a nuisance as defined
under this Chapter to existing or future neighboring structures.
8. The proposed use will be served adequately by essential public facilities
and services, including streets, police and fire protection, drainage structures,
refuse disposal, water and sewer systems and schools or will be adequately
served by such facilities and services provided by persons or agencies
responsible for the establishment of the proposed use.
9. The proposed use will not create excessive additional requirements at
public costs for public facilities and services and will not be detrimental to
the economic welfare of the community.
J. City Code § 154.106(E) provides, in relevant part, that the, "Council may
attach whatever reasonable conditions they deem necessary to mitigate anticipated
adverse impacts associated with these uses, to protect the value of property within
the district and to achieve the goals and objectives of the Comprehensive Plan."
K. City Code § 154.106(E)(3)(d) further provides that the City may place
conditions on the use a property related to "controlling the location, availability, and
compatibility of utilities."
L. City Code § 154.1006(B) provides, "Conflict. Where the conditions imposed
by any provision of this chapter are either more restrictive or less restrictive than
comparable conditions imposed by any other law, chapter, statute, resolutions or
regulation of any kind, the regulations which are more restrictive or which impose
higher standards or requirements shall prevail."
M. City Code § 154.005 requires that, "Except as in this chapter specifically
provides, no structure shall be erected, converted, enlarged, reconstructed or altered
- — - and no structure or land shall be used for any purpose in- any manner -which-is not -in
conformity with this chapter."
N. City Code § 154.107(C) requires that, "The Planning Commission shall hold
a public hearing on each complete application for a conditional use permit as provided
in § 154.102 of this Article." Further, it provides, "[a]fter the closing of the hearing
on a proposed conditional use permit, the City Planning Commission shall consider
findings and shall submit the same together with its recommendations to the City
Council."
O. City Code § 154.107(D) recognizes, "The City Council shall make the final
decision on a conditional use permit after a public hearing by the Planning
Commission. The City may approve, approve with conditions, or deny the
application."
P. City Code § 154.107(F) mandates, "If the Planning Commission
recommends denial of a conditional use permit or the Council orders such denial, it
shall include in its recommendation or determination findings as to the specific ways
in which the proposed used does not comply with one or more specific findings
required by this chapter."
Q. City Code § 10.99 provides general standards for compliance with the City
Code, including Chapter 154. City Code §10.99(A)(1)), which includes, prohibiting
the following:
(b) Violate, fail to comply with, or assist, authorize, or permit the violation
of the terms and conditions of a city approval, including permits and
licenses, required or granted under this Code.
(c) Knowingly make or submit a false statement, document, or material
omission in connection with an application or procedure required by this
code.
R. Furthermore, City Code § 10.99(B)(4): "A violation of Division (A) above
constitutes sufficient grounds for denial of an application required by this code that
is related to the violation.
III. LAND USE APPROVALS
A. Prior to July 2018, the Property was zoned Agricultural Business Park
Holding Strict ("HD -A -BP") and later Rural Development Transitional ("RT").
B. The Property was subject to a Consent Agreement/Interim Use Permit
("IUP"). (Ex. 30; Ex. 25, p. 11). The IUP allowed the previous occupant of the
Property to operate a truck terminal at the site with a well and septic system. The
Interim Use Permit contained numerous conditions, including the following:
C. The interim use shall -be located on that portion of the Applicant's Property
illustrated on the Site Plan. The remainder of the Applicant's Property shall
continue to be used for agricultural purposes.
E. The Interim Use Permit is valid until the first occurring following event:
1. For five (5) years from the date of the renewal of the Interim Use
Permit (December 2, 2019);
3. Until a change in the City's zoning regulations, which renders the
interim use non -conforming; or
4. Until the redevelopment of the Property for a permitted or
conditional use as allowed by the City's zoning regulations.
(Ex. 30, pp. 2-3; Ex. 25, p. 11.)
C. At the time of the land use approvals, the School District represented that it
did not want to operate under the current Interim Use Permit (Ex. 25, p. 11).
D. Prior to July 2018, the Property was zoned Rural Development Transitional
("RT"). The RT designation provides landowners with interim use options as they
wait for the availability of sewer or until such time as the property owners requests
a zoning change to a new district consistent with future guided land use. (Ex. 25, p.
2.)
E. The School District and landowner requested that the Property be rezoned to
the BP district, which the land was guided for in the 2030 Comprehensive Plan. (Ex.
25, p.2.) The BP district is considered a sewered district in the Comprehensive Plan.
(Ex. 18, p. 367, & p. 3-18 Map 3-4.)
F. In describing its use of the Property as a transportation center, the School
District has acknowledged that approximately 200 people work at the facility, with
morning and afternoon shifts of drivers and attendants, along with vehicle
maintenance and administrative staff. Hours of operation are approximately 6:00
a.m. to 6:00 p.m. during the weekdays with occasional Saturday use. Parking for the
school buses (total of 140) transportation vans (about 20) and personal vehicles of
the employees (about 200) is provided on -site. (Ex. 5.)
G. In its application for the CUP, the School District acknowledged that:
Water and sanitary sewer infrastructure are also proposed to this area of the City as
part of the adjacent re -development and re -alignment of Hudson Boulevard,
eliminating the need for septic systems for treatment of wastewater from this
facility. As the water for the facility is switched from the well to municipal water,
the existing well would be abandoned in accordance with Minnesota Health
Department requirements. (Ex. 5, p. 2.) - -- -
H. As noted above, in July 2018, the School District also sought a zoning text
__ _ _ amendment to add a Bus Terminal as a conditional use in theBPDistrict. The
addition to the BP District was approved by the City as a conditional use, provided
that certain specific conditions were met, including that it must be on property of at
least 10 acres in size or more. (See City Code § 154.550, O.)
I. At the time of the CUP approval, the City Council approved the Preliminary
and Final Plat to allow the Four Corners development, which included the Property,
and created an 11-acre parcel for the School District. (See Ex. 25, Preliminary Plat
Application.)
J. As part of the School District's applications, it provided a Plan for Bus
Facility Improvements, which included significant paving over the 11-acre Property,
the inclusion of stormwater ponds, a watermain easement, a 10-foot small utility
easement and a utility plan. (Ex. 6.)
K. The Staff Report for Agenda Item #17, on July 17, 2018, noted "Because the
property is guided in the City's Comprehensive Plan for 2020-2030 Regional Sewer
Staging Plan and would discharge to the MCES Cottage Grove Ravine Interceptor,
provisions for connecting to the municipal sanitary sewer service must be included
with this application," and "Because the property is located in the MUSA,
provisions for connecting to the municipal water supply must be included." (Ex. 25.)
L. The City Engineer provided a Memorandum, dated May 30, 2018, which
was an engineering review of the plans for the Four Corners development, including
the Stillwater Bus Facility Site Plans. (Ex. 7.) The Memorandum provided
comments and recommendations for Stormwater Management, Streets and
Transportation, Municipal Sanitary Sewer, and Municipal Water Supply.
M. The CUP, i.e., Resolution No. 2018-077, includes, but is not limited to, the
following conditions relevant to the current use of the Property:
Condition #2: No construction or use of the bus terminal (unless in
accordance with the hiterim Use Permit approved by the City by Resolution
2014-095) may commence until all items as outlined in the City Engineer
review memo regarding the Four Corners Preliminary & Final Plat
(Stillwater Transportation Center) dated May 30, 2018 and all other
subsequent construction plan memos regarding the Stillwater Transportation
Center have been addressed; the Four Comers 1" Addition Final Plat has
been recorded. (Ex. 2, p. 4.)
Condition #3: The applicant must obtain all other necessary City, State, and
other governing body permits prior to the commencement of any
construction activity on the parcel including but not limited to: an approved
stormwater management plan, utility plans, grading plan, street construction
plans (if required), parking lot permit, building permits, etc. (Ex. 2, p. 4.)
Condition #9: The property shall be connected to City sewer and water prior
to operation of the bus terminal." (Ex. 2, p. 4.)
N. The CUP does not require the School District to pay for all improvements to
the Property; it simply requires all the improvements to be constructed as a
prerequisite to the occupation and use of the Property.
O. At the time of the City Council's consideration of the land use applications
discussed above, including the CUP, the School District's representatives were
provided with all staff reports and the proposed CUP. The School District did not
make objection to the CUP or any of its conditions.
IV. IMPROVEMENTS SINCE CONDITIONAL USE APPROVAL
A. The Developer and the City negotiated a Developer's Agreement dated
October 22, 2018, which required the Developer to build the water and sewer
infrastructure and bring it to the Property.
B. The School District closed on its purchase of the Property on October 23,
2018. The CUP was granted months before the closing and the School District was
aware of its requirements. The provision of water and sewer to the Property by the
Developer was contemplated in the Purchase Agreement between the School
District and the Developer. The City was not a party to the Purchase Agreement.
C. By e-mail dated April 16, 2019, the City Administrator stated, "We are
allowing you to work under the IUP (Interim Use Permit) as referenced in Condition
#2 of the CUP but, that expires this year. I honestly don't think Terry is going to
have water and sewer to you by the end of the year so then you would not be in
compliance with the terms of the CUP and you wouldn't be able to operate it as a
school bus garage." (Ex. 19, p. 2.) (emphasis added.)
D. On July 11, 2019, the School District entered into a Site Improvement
Agreement with the City to govern its construction of improvements required of the
School District by the CUP. The Site hnprovement Agreement did not address or
approve of the installation of a fire suppression system, fire alarm system, including
heat and smoke detection, and a temporary septic system. (Ex. 31)
E. On July 16, 2019, the City Administrator e-mailed the School District, and
noted in relevant part:
Perhaps we should touch base on Terry's project and the status of water and
sewer being extended to the site. Terry has asked for the City Council to
review a change to the plans at their August work session. This may result in
water and sewer not being extended this year. I wanted to make sure you
were aware of this before moving ahead with the millions of dollars in
improvements that may not be operational without the extension of water
and sewer. (Ex. 19, p. 1.)
F. Despite the City Administrator's two warnings, the School District
proceeded with improvements contemplated by the Site Improvement Agreement
__ __ and those not contemplated by the S_ite_Improvement Agreement._
G. The School District paved over approximately 3.8 acres of previous Agricultural
land to the north of the building for its bus parking lot (i.e. its primary use). The
School District landscaped the Property and installed a watermain and the additional
improvements below.
Fire Suppression and Fire Detection
H. The School District installed a fire alarm system, which included heat and
smoke detection.
I. The School District installed a fire suppression (sprinkler) system within the
building. (Exs. 27- 29.) That system is not connected and not available for use. (Id.)
J. According to the City's Interim Building Official, while neither the fire
suppression nor the fire alarm system were required to be installed by the School
District, the installation triggered permitting and code compliance requirements.
(Ex. 29). The Minnesota State Fire Code, Section 105.1.1, provides that when work
is undertaken that it is regulated by the code (i.e. fire suppression and detection) and
permits are required. (Exs. 27; 29.)
K. The fire alarm system (including heat and smoke detection) was installed
without a permit.
L. The fire suppression system was installed pursuant to a permit. However, as
noted by the Interim Building Official, "it is a requirement of the fire code that all
installed fire sprinkler systems be maintained and operational, or they are to be
removed (if they are not required). Specifically Minnesota State Fire Code Section
901.45 states, "Any device that has the physical appearance of life -safety or fire
protection equipment, but that does not perform that life -safety or fire suppression
function shall be prohibited." (Ex. 29, at pp. 1-2.)
M. Following a March It, 2020 inspection, on April 21, 2020, the State Fire
Marshal notified the City of Lake Ehno and the School District that (consistent with
the Interim Building Official's review), the fire protection sprinkler system has to be
addressed and suggested several alternatives, including provision of municipal water
supply, installation of on -site automatic water supply/tank connected to a fire pump;
installation of an additional on -site private well and pump; or demolishing the
sprinkler system. (Ex. 28, pp 3-4.) The letter noted that "Further investigation is
pending the verification of the building construction, building height and area, and
occupancy use classifications as they relate to the possible requirements for the
installation of a fire protection system." (Ex. 28, p. 4.)
Temporary Septic Tank
N. Prior to moving onto the Property, the School District installed a temporary
septic tank and temporary toilets (i.e. porta potties).
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O. The School District admitted that the temporary septic tank was not
permitted by Washington County. Washington County confirmed that it did not
approve the temporary septic tank. (See also Exs. 15-16, 21.)
V. OCCUPATION OF THE PROPERTY
A. On August 29, 2019, the School District Board considered Agenda Item
IX.E. related to "Additional Transportation Facility Design." (Ex. 8.) The staff
report provided, "Because the planned development has not progressed, interim
changes will be necessary for the District's students transportation provider to
occupy the facility," and, "Based on the need to occupy the Transportation Facility
prior to public utilities being available, Administration recommends proceeding with
the proposal from Larson Engineering, Inc." (Ex. 9.)
B. From August of 2019, through November 2019, City staff was unaware of
plans by the School District to occupy the Property.
C. In Fall 2019, the School District began utilizing the property as its bus
terminal. (Exs. 8, 9, 10.)
D. In its November 5, 2019. application to amend its CUP, the School District
acknowledged that it was not occupying the Property pursuant to the IUP, stating,
"The School District applied for and received approval for the rezoning of the
property to Business Park on July 17, 2018, thereby automatically terminating the
IUP." (Ex. 10, P. 1.)
E. Its November 5, 2019 letter stated the following:
It is important to point out a few significant facts:
1. The School District will complete all of the on -site improvements by
December 1, 2019, as required in its Site Improvement Agreement with the
City....
2. Prior to construction, the City informed the School District that it could
request an extension of the IUP to operate at the property using a well and
septic system for a temporary period of time. Based on that direction, the
School District installed a temporary septic tank, supplemented by temporary
toilets. The existing well has been approved by the Minnesota Department of
Health and the temporary septic services have been ap rn oved by Washington
County, pending acceptance by the city and a timeline for when City
services will become available. The City and School District now know that
the 1UP was terminated upon the event of the rezoning, thereby making the
extension of the IUP impossible. (Ex. 10, p. 2.)(emphasis added.)
F. In the letter, the School District further opined on the temporary septic:
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1. The temporary services will not be detrimental to or endanger the public
health, safety or general welfare. The existing well have been tested and
approved by MDH. The septic tank and temporary toilets are a short-term
solution and have been accepted by Washington County, pending city
approval and a timeline for connection to City sewer. Well and septic
systems have long been used in this area and the School District's short-term
solution will not endanger the public. (Id.)
G. By e-mail dated February 20, 2020, the City Administrator was alerted to a
potential issue with the temporary septic tank relied upon by the School District.
(Ex. 15.) The City Administrator reached out to the Washington County
Department of Public Health & Environment regarding the temporary septic. By e-
mail dated March 17, 2020, Gary Bruns, Environmental Program Supervisor, stated,
"The only permit we have issued the district is for the abandonment of one old
septic tank on the property. We have been told a design for a septic system will be
submitted, but we do not have that at this time." (Ex. 16.)
H. On April 1, 2020, on behalf of Washington County, Mr. Bruns provided a
letter to the City which commented on the School District's Second Amendment
Application. Relevant to the compliance with the CUP, the letter states:
The District states "The current 3,000 gallon septic tank is sufficient
to accommodate those employees." This tank size is not sufficient as
it does not meet the requirements of MN Rule Chapter 7080 or
Washington County Ordinance # 206 requirements.
(Ex. 21.)
I. By e-mail dated March 9, 2020, a representative from the Minnesota
Department of Labor contacted the City Administrator regarding the improvements
made by the School District noting, "A structure funded for a school district, of
which the cost is $100,000 or more, is considered a public building. This project
would be required to be reviewed, permitted and inspected." (Ex. 17, p. 2.)
J. The City Administrator acknowledged that, according to representations
from the School District, they installed sprinklers, fire alarms and heat and smoke
detectors (Ex. 18, p. 1.)
K. The School District continues to use the Property as a bus terminal.
L. The School District has acknowledged that EN Properties, LLC has breached
its contractual duties to the School District. (Ex. 12, p. 2.) The School District has
sued the Developer under its Purchase Agreement, Independent School District No.
834, Stillwater Area Public Schools v. ENProperties, LLC & E&E properties, LLC,
82-CV-20-1422 ("Lawsuit"). In the Lawsuit, the School District is specifically
-- --seeking injunctive relief to require the Developer to furnish water -and -sewer to the
Property. The School District asserts that it has a contractual remedy against the
Developer which would allow it to accomplish the prerequisites to occupation of the
Property as required by _the CUP.
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VI. REQUEST FOR CUP AMENDMENT TO ALLOW USE OF PROPERTY WITH
PERMANENT ON -SITE SEPTIC SYSTEM
A. The School District requests that its CUP be amended to allow their use of
the existing well and temporary septic tank on its Property until August 30, 2020, by
which time they would install a permanent septic system approved by Washington
County on their Property. Pursuant to the requested amendment, the School District
would be allowed to use the well and septic system until the public services were
installed and connection made to the Property. (Ex. 1.)
B. At the time of the application, the School District provided a one -page
Utility Plan related to the proposed permanent septic system. (Ex. 1, p. 21.) hi
response to questions from the Planning Department, the School District's Facilities
Manager provided some explanation. (See Ex. 22.)
C. On March 19, 2020, the City's Engineer provided a Memorandum reviewing
the Amended CUP Site Improvements, which provides in relevant part:
i. Municipal Sanitary Sewer. The Engineer notes that, "[t]he proposed
site is guided in the City's 2040 Comprehensive Plan for public sanitary
sewer that would discharge to the MCES Cottage Grove Ravine Interceptor,"
and consistent with current city policy, he recommends that the School
District be required to connect to the city sanitary sewer system and extend
sanitary sewer to the property. (Ex. 20.)
ii. Municipal Water Supply. The Engineer states, "[t]he proposed
facility resides within the Planned MUSA, therefore provisions for
connecting to the municipal water supply should be included with the
application," and consistent with current city policy, he recommends that the
School District be required to connect to the city municipal water supply
system and extend municipal water to the property. (Ex. 20.)
iii. Stormwater Management. The Engineer notes that the approved CUP
required the construction of storm water management facilities meeting city
and VBWD rules to address new and reconstructed impervious surfaces and
internal parking areas and site improvements. (Ex. 20.) The facilities remain
under construction pending verification by City staff. Additionally, storm
water improvements were required as part of the development to urbanize
Hudson Boulevard consistent with design standards, and were a condition
for approval, which has not been realized to date.
D. On April 8, 2020, the School District provided a 58-page plan for septic
system design. (Ex. 23.) The School District submitted the plans to Washington
County on April 7, 2020.
E. The City Engineer provided a preliminary assessment of the proposed
permanent septic design. (Ex. 24.)
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F. Washington County has not issued a permit for the temporary septic system.
As noted above, Washington County provided a letter dated April 1, 2020 regarding
the School District's application. As to the proposed CUP amendment and proposed
on -site septic, the Public Health and Environment Department acknowledged, as of
the date of the letter, that they had not received an application for a replacement
Subsurface Sewage Treatment System (septic system), and, therefore, could not
make an assessment whether the plan and proposed use is feasible. (Ex. 21.)
G. With respect to the interim use of the temporary septic, the County noted that the
current 3,000 gallon septic tank is not sufficient, as it does not meet the
requirements of MN Rule Chapter 7080 or Washington County Ordinance #206.
(Id.)
H. The County also noted that it has not commented on the capacity needed for
the site, contrary to the representation made by the School District. (Id.) Finally, the
County noted that the Utility Plan does not indicate where the replacement system
will be located and does not accurately depict what is currently on site. (Id.).
I. On April 29, 2020, the City received communication from Washington
County that the School District had submitted a new septic system design to the
County on April 28, 2020. The County provided that proposal to the City. (Ex. 33.)
The County provided the City a summary of the newly proposed system and
aclarowledged that it addressed the issues raised from the first design. (Ex. 32.) Its
new plans appear to address the concerns raised by the City Engineer as well.
VII. FINDINGS ON DENIAL
Conditional Use Permit Findings — City Code § 154.106(A)
A. City Code § 154.106(A) provides that the City Council may grant a
conditional use if it finds that the proposed use meets specific findings. The City
finds that the School District did not meet its burden to show compliance with City
Code § 154.106(A) and the proposed use does not comply with specific findings
required by City Code § 154.106(A). Pursuant to City Code § 154.106(F), the City
makes the following specific findings which require denial of the application and
requested amendment:
i. The City finds the proposed use of the Property with a temporary
septic and a permanent septic system does not conform to the City of Lake
Elmo Comprehensive Plan. City Code § 154.106(A)(2).
a. The City approved the development of the parcel and the previous
Conditional Use Permit with the expectation and requirement that the
Property as developed be connected to sanitary sewer and water
facilities. — -- — -
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b. The Property was originally a 5-acre site and developed by the
School District into an 11-acre acre site to accommodate its proposed
use.
c. The School District requested that the Property be rezoned to
Business Park and requested an amendment to allow bus terminals as a
conditional use in that district.
d. The Property is within the Business Park zoning district, which is a
sewered zoning district in the Comprehensive Plan. (Ex. 18, at p. 6). The
Comprehensive Plan provides that septic systems are allowed for land
uses "outside of the planned sewer services."
e. Because the Property is within a MUSA district, it was required to
connect to City water and sanitary upon development. Consequently, the
City made it an express condition in the CUP that it be connected to
municipal sewer and water before occupation and use. (Ex. 2, p. 4
[Condition No. 9])
f. Since it is not connected to City water and sanitary sewer services, it
is in conflict with the requirements of the MUSA district, as outlined by
the Comprehensive Plan and the use should not be allowed to continue
due to this conflict.
g. Finally, the School District's application is premised on their
continued interim use of the Property (which has occurred since October
2019) until August 30, 2020 with its unpermitted temporary septic tank.
The temporary septic tank does not comply with the Comprehensive
Plan.
h. Even if outside the planned sewer service areas, which the Property is
not, the Comprehensive Plan provides that the Property must still comply
with Chapter 4: Subsurface Sewage Treatment Systems Regulations of
the Washington County Development Code as adopted by reference by
the City of Lake Elmo. (Ex. 18, at p.9-13). According to Washington
County, the size of the temporary tank is not sufficient as it does not
meet the requirement of MN Rule Chapter 7080 or Washington County
Ordinance No. 206. (Ex. 21). Ordinance No. 206 and Chapter 4 of the
Washington County Development Code are the same regulations. (Ex.
26). Consequently, the temporary septic contravenes the Comprehensive
Plan. Because the fiirther use of the temporary septic is integral to the
School District's amendment request, the request must be denied.
I The City finds that the proposed use of the Property with a temporary
- septic system will be hazardous -or -create a -nuisance, as- defined -under --
Chapter 154, to existing or future neighboring structures. City Code §
154.106(A)(7)
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a. The City incorporates the findings above related to the temporary
septic in support of a finding that its use creates a hazard or nuisance.
b. The Amendment requires temporary use of the Property served by
temporary toilets (i.e. "porta potties") and an existing unpermitted septic
tank. The current septic system is not adequate for the site and
constitutes a hazard to workers at the Property.
iii. The City finds that the proposed use will be served adequately by
essential public facilities and services, including streets, police and fire
protection, drainage structures, refuse disposal, water and sewer systems
and schools or will not be adequately served by such facilities and services
provided by persons or agencies responsible for the establishment of the
proposed use. City Code § 154.106(A)(8).
a. City Code § 154.106(A)(8) provides that the City must determine
that the proposed use will be adequately served by essential facilities,
including but not limited to water and sewer systems, or the City can
allow a proposed use if a property is adequately served by such facilities
and services. Contrary to the assertion of the School District, this
provision, however, does not require that the City snake a fmding that a
permanent septic system be used merely because a Property owner wants
to connect to a private system. It is written to allow conditional uses in
areas of the City that are not sewered or readily capable of being
connected to municipal water and sewer. This provision does not require
that the City dispense with the other provisions of the City's zoning code
and its comprehensive plan based upon an Applicant's prerogatives.
b. As noted above, the City approved the development of the parcel and
the previous Conditional Use Permit with the expectation and
requirement that the Property as developed be connected to sanitary
sewer and water facilities.
c. The Property was originally a 5-acre site and developed by the
School District into an 11-acre acre site to accommodate its proposed
use.
d. The School District requested that the Property be rezoned to
Business Park and requested an amendment to allow bus terminals as a
conditional use in that district.
e. The Property is within the Business Park zoning district, which is a
sewered zoning district in the Comprehensive Plan. (Ex. 18, at p. 6). The
Comprehensive Plan provides that septic systems are allowed for land
- uses"outside of the planned sewer services."— - -- -
f. Because the Property is within a MUSA district, it was required to
connect to City water andsanitaryupon development. Consequently, the
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City made it an express condition in the CUP that it be connected to
municipal sewer and water before occupation and use. (Ex. 2, p. 4
[Condition No. 9])
g. Since it is not connected to City water and sanitary sewer services, it
is in conflict with the requirements of the MUSA district, as outlined by
the Comprehensive Plan and the use should not be allowed to continue
due to this conflict. It is not adequately served by essential public
facilities at this time, which merits denial of the amendment request.
h. The School District argues that language in the City Engineer's
Memorandum, dated March 19, 2020 (Ex. 14) compared with the
Engineer Memorandum, dated May 30, 2018 (Ex. 7) and incorporated
into the CUP conditions, indicates that the City does not, in fact, require
connection to sewer and water. The City finds the School District's
argument unavailing. At the time of the original CUP application, based
upon rezoning, redevelopment, and the Comprehensive Plan, the City
determined that the Property needed to be connected to water and sewer.
The School District now wants to unwind a primary condition of that
approval. The School District ignores that the March 19, 2020
Memorandum expressly calls out this issue. For example, it states, "The
proposed site is guided in the City's 2040 Comprehensive Plan for public
sanitary sewer that would discharge to the MCES Cottage Grove Ravine
Interceptor. Therefore, provisions for connecting to the municipal
sanitary sewer service should be included with the application. Instead,
the application makes a request for continued use existing and proposed
on -site septic systems and drainfrelds until sanitary sewer is available to
the site." The City Engineer's March 19, 2020 memorandum merely
represents the City Engineer's attempt to address an application which is
contrary to the previous approval and conditions.
i. Furthermore, the School District's application is premised on their
continued interim use of the Property (which has occurred since October
2019) until August 30, 2020 with its unpermitted temporary septic tank.
For the reasons stated previously, the temporary septic tank is not
adequate because it doesn't comply with Washington County regulations
or the City's Comprehensive Plan.
Application of City Code § 10.99
Violating Conditions of Approval - § 10.99(A)(1)(b)
B. City Code § I 0.99(A)(1)(b) prohibits violating, failing to comply with,
authorizing, or permitting the violation of the terms and conditions of a city
- - approval, including permits and license. The City finds that the School -District is
using the Property in violation of the terms of its CUP as follows:
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i. Condition No. 2 provides that no construction or use of the bus
terminal may commence until all items as outlined in the City Engineer
Review Memo dated May 30, 2018 (i.e. Ex. 7) and all other subsequent
construction plan memos have been addressed. (See also Ex. 2).
a. The School District moved onto the Property in October 2019
and began using it as a transportation center.
b. The City Engineer has provided a Memorandum dated March
19, 2020 (Ex. 14.) which addresses the improvements required for
the Property.
C. Based upon the foregoing, the Council finds that the School
District is using the Property before the following improvements
were completed:
-Hudson Boulevard Improvements (Ex. 7, p. 2, Ex. 14)
-including Traffic Impact Study (Ex. 7, p. 2; Ex. 14)
-Municipal Sanitary Sewer (Ex. 7, p. 2; Ex. 14)
-Municipal Water Supply (Ex. 7, p. 2; Ex. 14)
*Storm water management facilities (Ex. 7, p. 1; Ex. 14)
d. The School District does not dispute that the improvements
have not been completed but blames both the Developer for not
completing the improvements and the City for requiring them.
e. The City does not dispute that items complained of are the
responsibility of the Developer. The CUP does not require that the
School District complete them. It simply requires, like any other
development or redevelopment, that the redevelopment be complete
before final occupancy. Contrary to the suggestion of the School
District, that is not an unusual practice. The School District has a
purchase agreement with the Developer and has a contractual remedy
to require the Developer to complete the improvements.
f. The City further finds that the School District created the
conflict with the CUP. There would be no violation of Condition #2
absent the School District's determination to move onto and utilize
the Property despite the prohibition in the CUP. The School District
is responsible for this violation not the City or the Developer.
ii. Condition #3 provides that the School District must obtain
all other necessary City, State, and other governing body permits
prior to the commencement of any construction activity on the
parcel.
a. The City finds that the School District has constructed a
temporary septic tank on the Property without a permit and that
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Washington County has not approved the School District's use of the
temporary septic tank.
b. The City also finds that the School District installed a fire
alarm (heat and smoke detection) system that required a permit under
the Minnesota State Fire Code, but failed to get a permit.
C. The City further finds that the School District's decision to
occupy and utilize the Property renders the failure to seek the
appropriate approvals troubling. The permitting approvals are
designed to protect the health, safety, and welfare, of the employees
and persons using the Property as a transportation center as well as
the public at large. The School District is responsible for this
violation not the City or the Developer.
iii. Condition #9 provides that the property shall be connected to City
sewer and water prior to the operation of the bus terminal.
a. Condition #9 does not allow use of the Property under any
circumstances until connection to City sewer and water. The requirements
are unequivocal.
b. The School District has used the Property since at least mid -
October 2019. The Property remains unconnected to City sewer and
water.
C. The City further finds that the School District created the
conflict with the CUP. There would be no violation of Condition #9
absent the School District's determination to move onto and utilize
the Property despite the prohibition in the CUP. The School District
is responsible for this violation not the City or the Developer.
Misrepresentation— § 10.99(A)(1)(c)
C. City Code § 10.99(A)(1)(c) also prohibits knowingly making or submitting a
false statement, documents or material omission in connection with an application or
procedure required by this Code. The City finds that the School District violated
this section as follows:
Misrepresentation # 1
a. As found above, at the time of its occupation of the Property
in October 2019, the School District had installed a temporary septic
system. That septic system was not permitted or approved by
_ Washington County.
b. On November 5, 2019, the School District applied for an
CUP to legitimize its use and occupation -of the Property —The letter
-
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stated, in relevant part, "the temporary septic services have been
approve by Washington County, pending acceptance by the city and
a timeline for when City services will become available."
c. The City finds that this statement was knowingly made and
was false. The septic tank was not approved by Washington County
on November 5, 2019.
d. In defense, the School District has made it clear that it does
not regret its wording; nor does it claim a mistake. Instead, it
provides an e-mail from a Washington County employee, which they
claim supports their statement that they had approval from
Washington County. (See Ex. A.)
C. This e-mail was not provided to the City prior to the
revocation process and there was no evidence presented that City
staff were aware of the School District's claim that City staff were a
roadblock to approval. Even if City staff had approved the use of
temporary toilets and provided a timeline for extension of City sewer
and water (which would not have been possible at that time), the e-
mail itself states, "If we can get those things, we should be able to
move forward with the permitting ru ocess." (Ex. A, p. 2.) (emphasis
added). The e-mail does not mention the word "approval" or suggest
that if those two issues were satisfied that the tank was approved by
Washington County.
f. In addition to the fact, later admitted by the School District at
the Planning Commission meeting on April 13, 2020, that the septic
tank was not permitted or approved at that time, the April 1, 2020
letter from Washington County (Ex. 21) casts significant doubt on
the proposition that it would ever have been approved. The County
noted that, "[t]his tank size is not sufficient as it does not meet the
requirements of MN Rule chapter 7080 or Washington County
Ordinance # 206 requirements."
g. At best, given the e-mail provided by the School District, the
phrasing of the sentence, purposefully made, concealed the truth that
the permitting process was not complete pending acceptance by the
City and a timeline for when City services will become available.
The City also finds that this statement, knowingly made, contains a
material omission by suggesting that approval was fait accompli.
h. This omission was material because the School District was
relying on it to convince the City to allow their use of the Property.
- Furthermore, the School Districtsuggestedthat"[t]he temporary
septic services will not be detrimental to or endanger the public,
health, safety, or general welfare." The purpose of permitting and
approval by Washington County, the entity with expertise on this
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subject, is to ensure adequate safety for employees of the School
District and the public at large.
i. The City finds that this knowingly false statement and
material omission were related to the approval, i.e. the CUP.
ii. Misrepresentation # 2
a. In its application for an amendment, the School District
represented, "The current 3,000 gallon septic tank is sufficient to
accommodate those employees." (Ex. 1, p. 4.) The School District
also represented, "Washington County has indicated that the septic
tank needs to be larger, up to 58,000 gallons, and the septic system
must be redesigned in order to accommodate the drivers as well."
b. In its April 1, 2010 letter, Washington County directly
contradicting these assertions. Washington County stated that
contrary to the assertion of the School District, the 3,000 gallon
septic tank was not sufficient to accommodate the School District's
on site employees as it did not meet the requirements of Minnesota
Rule Chapter 7080 or Washington County Ordinance # 206. (Ex.
21.)
C. More troubling, the County stated, "In the CUP request, the
District states that the Department has indicated the septic tank needs
to be 58,000 gallons in capacity. The Department has not commented
on proposed tank size requirements." (Ex. 21.)
d. The City finds that these were knowingly false statements
related to the pending request for a CUP amendment.
D. Pursuant to City Code § 10.99(B)(4): "A violation of Division (A) above
constitutes sufficient grounds for denial of an application required by this code that
is related to the violation. The City finds that the violations described above of City
Code §§ 10.99(A)(1)(b)&(c) are related to the School District's CUP and, therefore,
related to this application. The City finds that the violations constitute grounds for
denial of the application.
DECISION
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
LAKE ELMO, MINNESOTA, based upon the information received and the above Findings, that
the City Council of the City of Lake Elmo hereby denies the Applicant School District's request for
an amendment to its Conditional Use Permit (Resolution 2018-077) for the Property.
This resolution was adopted by the City Council of the City of Lake Elmo on this 50, day of May
2020, by a vote of Cayes and nays, as follows:
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VOTE Pearson Bloyer Dorschner McGinn Nelson
Aye v RI 0 9 ❑
Nay ❑ ❑ ❑ ❑ w
Abstain ❑ ❑ ❑ ❑ ❑
Absent ❑ ❑ ❑ ❑ ❑
By:
Mike earson, Mayor
ATTEST:
ie Jo s City Clerk
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