HomeMy WebLinkAbout2020-043CITY OF LAI{E ELMO
RESOLUTION NO.2020-043
A RESOLUTION REVOKING THE CONDITIONAL USE PERMIT (RESOLUTION 2018-
077) ALLOWING TIIE USE OF THE PROPERTY AT 11530 HUDSON BOULEVARD
NORTH AS A SCHOOL DISTRICT TRANSPORTATION CENTER
WHEREAS, the City of Lake Elmo (the "City) is a municipal corporation under the laws of
Minnesota; and
WHEREAS, the City adopted its 2030 comprehensive plan in 2010 and amendments
thereto in April 2013, to guide the development of the community ("Comprehensive Plan") (See
Ex. 19); 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 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, on July 17, 2018, the City Council approved the subdivision of It 530 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, 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. 1); 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. 11, p. 2); and
WHEREAS, on January 21, 2020, the City Council denied the First Amendment
Application (Ex. 12), and directed staff to institute the process for potential revocation of the CUP;
and
WHEREAS, on March 12, 2020, the School District applied for another 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." ("Second Amendment
Application"); and
WHEREAS, on May 5, 2020, the City Council denied the Second Amendment Application;
and
WHEREAS the City Council held a public hearing on April 21, 2020 to review the
Conditional Use Permit, following mailed and published noticed as required by law; and
WHEREAS, prior to the public hearing on April 21, 2020, the School District was provided
a draft staff report notifying it of the basis for the City Council's consideration of potential
revocation, including supporting documentation, and the School District was provided the
opportunity to submit documentation to the Council in advance of its April 21, 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 reports dated
April 21, 2020 and May 5, 2020 along with presentations at its April 21, 2020 and May 5, 2020
meetings.
NOW, THEREFORE, the City Council of the City of Lake Elmo makes the
following:
FINDINGS
I. RECITALS
The above recitals are incorporated as if fully set forth herein.
II. APPLICABLE ZONING LAW AND REGULATIONS
A. Minn. Star. § 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 purposes of the city's zoning code, which
include:
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 and, specifically its Land Use Plan, has several
purposes, including:
4. The Land Use Plan is intended to be used as a basis for public
facilities planning. A major function of municipal government is planning
for and establishment of public facilities such as sewer, water, roads,
stormwater facilities, and parks. These physical improvements require
extensive initial investment and a long term maintenance commitment that
can become a financial burden when such systems are overbuilt or
prematurely installed. The Land Use Plan therefore plays an important role
in determining each neighborhood's ultimate population, the required
capacity of public facilities, and an appropriate capital improvements
program. The level of services and facilities required by this Plan are
consistent with the exiting or planned capacity of the applicable regional
_. systems ...
6. The Land Use Plan is intended to clearly delineate how Lake Elmo
complies with the memorandum of understanding between the City and
the Metropolitan Council....
(Ex. 19, at pp. III-3.)
D. The Comprehensive Plan states that, "[tlhe assigned land use designations
are intended to shape the character, type and density of future development
according to sound planning principles. Any new development, redevelopment,
change in land use or change in zoning is required to be consistent with the official
land use guidance for each parcel." (Ex. 19, at p. III-8.)
E. Map 3-3 in the Comprehensive Plan shows the Property and surrounding
parcels guided for Business Park. (Ex. 19, at Map 3-3.)
F. The Comprehensive Plan includes a Staging Plan for the provision of
municipal water and sewer (a requirement of the City's MOU with the Metropolitan
Council) to ensure that the City is able to deliver the required municipal services and
public infrastructure that will be needed to support new development. (Ex. 19, at p.
III-15.) Stage II contemplates, "New sewered development located west of
Manning Avenue and south of the Forest residential subdivision that will connect to
the MCES Cottage Grove Ravine regional interceptor." (Ex. 19, at p. III-15.) Stage
II is shown on Map 3-4, and includes the Property. (Ex. 19, at Map 3-4)(See also
Map 6-1)
G. Importantly here, the Comprehensive Plan notes the following about the
stages subsequent to Stage 1:
The City will monitor growth by assessing market conditions, land capacity,
and the availability of public infrastructure in order to determine when
development may occur in stages subsequent to the first stage. The
acceleration of development in any of the latter stages may be permitted by
the City provided it is demonstrated that adequate public infrastructure exists
to support this development. The availability of infrastructure and any
necessary utility extensions and transportation improvements needed to
support new development will be considered in deciding whether or not to
open up the next staging area to development. In order to accelerate the
development of latter stages, there must be a commitment that the
development will pay its proportionate share of the infrastructure costs to
extend services to any new development. (Ex. 19, at III- I 5)(emphasis
added.)
H. The Comprehensive Plan addresses "Conditions Under which Septic
Systems are Allowed" and states, "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.
19, at VI-6.)
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Zoning Code
I. City Code § 154.106(A) defines a "Conditional Use" as a "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 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) further provides,
3. In addition, conditions may include, but are not limited to, the following:
b. Regulating ingress and egress to the property and the proposed
structures thereon with particular references to vehicle and pedestrian
safety and convenience, traffic flow, and control and access in case
of fire or other catastrophe; ...
d. Controlling the location, availability, and compatibility of utilities;
e. Requiring berming, fencing, screen, landscaping or other means to
protect nearby property; and
f Requiring other conditions to create compatibility of appearance
with surrounding uses.
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 § 154.106(J) provides that the City Council possesses sufficient
cause to terminate a Conditional Use Permit, following a public hearing, for
"[fJailure to comply with any condition set forth in a conditional use permit, or any
other violation of this chapter."
O. 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.
P. Furthermore, City Code § 10.99(B)(5): "Action prohibited by Division (A)
above may, at the option of the city, void a city approval 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 Agreementdhiterim Use Permit
("IUP")(Ex. 5.) 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. 5,
pp. 2-3.)
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. 6, 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. 6, p.
2.)
E. The School District requested that the Property be rezoned to the BP district,
which the land was guided for in the 2030 Comprehensive Plan. (Ex. 6, p. 2). The
BP district is considered a sewered district in the Comprehensive Plan. (Ex. 19, at
Map 6-3.)
F. In describing its use of the Property as a transportation center, the School
District stated 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. 4.)
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. 4 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 the BP District. The
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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(0).
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. 6, Preliminary Plat
Application.)
J. As part of the School District's applications, it provided a Plan for Bus
Facility hnprovements, 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. 7.)
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. 6.)
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. 8.) 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 Interim 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 Corners Ist Addition Final Plat has
been recorded. (Ex. 1, 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. 1, p. 4.)
Condition # 9: The property shall be connected to City sewer and water prior
to operation of the bus terminal." (Ex. 1, 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 PERMIT 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-mailed dated April 16, 2019, the City Administrator stated that, "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
as a school bus ag rage." (Ex. 20, 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. Their improvements include landscaping, stormwater
management, and drainage facilities, grading, utility work, plumbing, and water
main installation. (Ex. 21.) The Site Improvement Agreement addressed
improvements that were the financial responsibility of the School District.
E. The Site Improvement Agreement provides, "9. The [School District] is
responsible, at its own cost, for installing any private utilities that may be required
for the Project. The installation of such private utilities is not considered part of the
Improvements for the purposes of this Agreement." (Ex. 22, at p. 2.) Accordingly,
the Site Improvement 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.
F. The Site Improvement Agreement requires: "10. The Developer shall
construct the Project and the —Improvements -in -accordance with -the —Approval and all --
applicable laws, odes, regulations, and ordinances and shall obtain all other permits
and permissions that may be required. '(Ex. 22, at p. 3.)
G. On July 16, 2019, the City Administrator e-mailed the School District and
their Engineer, 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. 20.)
H. Despite the City Administrator's two warnings, the School District
proceeded with improvements both contemplated and not contemplated by the Site
Improvement Agreement.
I. The School District paved over approximately 3.8 acres of previously
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
J. The School District installed a fire alarm system, which included heat and
smoke detection.
K. The School District installed a fire suppression (sprinkler) system within the
building. (Exs. 23- 25.) That system is not connected and not available for use. (Id.)
L. 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.
23.) 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),
permits are required. (Exs. 23; 24.)
M. The fire alarm system (including heat and smoke detection) was installed
without a permit.
N. The fire suppressions 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 shallbeprohibited. (Ex` 2-3rat ppr1-2 )
O. Following a March 11, 2020 inspection, on April 21, 2020 the State Fire
Marshal notified the City of Lake Elmo and the School District that (consistent with
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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 an 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. 25, 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. 25, p. 4.)
Temporary Septic Tank
P. Prior to moving onto the Property, the School District installed a temporary
septic tank and temporary toilets (i.e. porta potties).
Q. 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.
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." 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. 10.)
B. At that time, in August 2019, and up until 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. 9, 10, 11.)
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. It, p. 1.)
E. Its November 5, 2019 letter stated the following:
It is important to point out a few significant facts:
- - 1. The SchoolDistrictwill complete all -of -the -on -site improvementsby-
December 1, 2019, as required in its Site Improvement Agreement with the
City....
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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 approved 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 IUP was terminated upon the event of the rezoning, thereby making the
extension of the IUP impossible. (Ex. 11, p. 2)(emphasis added.)
F. In the letter, the School District further opined on the temporary septic:
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.
G. By e-mail dated February 20, 2020, the City Administrator was alerted of a
potential issue with the temporary septic tank relied upon by the School District.
(Ex. 16.) The City Administrator reached out to the Washington County
Department of Public Health & Environment regarding the temporary septic. By e-
mailed date 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. 17.)
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.
I. By e-mail dated March 9, 2020, a representative from the Minnesota
Department of Labor contacted the City Building Inspector 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. 18, 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.)
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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. 13, p. 2.) The School District has
sued the Developer under its purchase agreement, Independent School District No.
834, Stillwater Area Public Schools v. ENProperttes, LLC & E&Eproperties, LLC,
82-CV-20-1422 ("Lawsuit'). hi 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.
VI. CURRENT USE/VIOLATIONS OF THE CUP
The City makes the following specific findings related to the alleged violations:
A. Condition # 2. Condition No. 2 provides that the 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. 8) and all other subsequent construction
plan memos have been addressed. See also (Ex. 1.)
wit:
The City finds that the School District violated Condition No. 2, to
Interim Use Permit
a. Condition No. 2 provides an exception, however, if the
construction or use, is in accordance with the Interim Use Permit
approved by the City by Resolution 2014-095. But the Council finds
that the IUP did not govern their use of the Property because it
terminated upon rezoning of the property in July 2018. (Exs. 5, 6.)
The City Council finds that, at the time of the CUP application, the
School District was aware that the IUP would terminate by its terns
and represented that it had no plans to use it. (Ex. 6, p. 11.)
b. hi its November 5, 2019 letter accompanying its application
for CUP amendment, the School District acknowledged that, "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. 11, p. 1.) The School District made this
admission, at most, a few weeks after moving onto the Property.
C. The School District contends that the City prompted their use
- of the Property in Fall 2019 based on-an-e-mail-from the City -
Administrator to Finance Director Kristin Hoheisel. (See Ex. C.) The
Council finds that if there was a mistake as to the operative nature of
the IUP at that time, it was a mutual mistake. However, the City
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Administrator warned the School District, at that time, that the IUP
would expire at the end of the year and the CUP would govern. (Ex.
C) The City Administrator provided a further warning in July 2019.
(Ex. 20.) Even if the IUP had been in place to allow their use, that
permission would have expired by December 2, 2019.
d. The invalidity of the IUP after rezoning does not invalidate
Condition No. 2 the CUP.
e. Moreover, there is no dispute that from December 2, 2019,
there is no exception for construction or use of the Property without
compliance with the City Engineer Memorandum.
Compliance with Engineering Memorandum
f. The City Engineer has provided a Memorandum, dated March
19, 2020 (Ex. 15), that addresses the School District's compliance
with his previous Memorandum (Ex. 8.)
g. 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. 8, p. 2, Ex. 15)
-including Traffic Impact Study (Ex. 8, p. 2; Ex. 15)
-Municipal Sanitary Sewer (Ex. 8, p. 2; Ex. 15)
-Municipal Water Supply (Ex. 8, p. 2; Ex. 15)
-Storm water management facilities (Ex. 8, p. 1; Ex. 15)
h. The School District does not dispute that the improvements
have been not been completed but blames both the Developer for not
completing the improvements and the City for requiring them.
i. 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.
j. The City further finds that the School District created the
conflict with the CUP. There would be no violation of Condition No.
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 Cityorthe-Developer. - --
B. Condition # 3. Condition No. 3 provides that the School District
must obtain all other necessary City, State, and other governing body
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permits prior to the commencement of any construction activity on the
parcel.
i. The City finds that the School District has violated Condition No. 3.
a. The City finds that the School District has constructed a
temporary septic tank on the Property without a permit and that
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.
C. Condition No. 9. Condition No. 9 provides that the property shall be
connected to City sewer and water prior to the operation of the bus terminal.
i. This condition does not allow use of the Property under any
circumstances until connection to City sewer and water. The requirements
are unequivocal.
I The City finds that the School District has violated Condition No. 9.
a. The School District has used the Property since at least mid -
October 2019. The Property remains unconnected to City sewer and
water.
b. The City further finds that the School District created the
conflict with the CUP. There would be no violation of Condition No.
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.
D. Based on the foregoing violations, and pursuant to City Code § 154.106(J)
and § 10.99(A)(1)(b)&(B)(5), the City has sufficient grounds to terminate the CUP.
--- - - E. - --Misrepresentation. In addition,, City Code-§40.99(A)(1)(c-)-and (B)(5) -
working together, provide that the City may void an approval if a person knowingly
makes or submits a false statement or document or knowingly makes a material
omission in connection with an application or procedure required by this Code. The
15
City makes the following specific findings related to the alleged misrepresentation
from the School District:
i. 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.
ii. On November 5, 2019, the School District applied for an amendment
to the CUP to legitimize its use and occupation of the Property. The letter
stated, in relevant part, "the temporary septic services have been approved
by Washington County, pending acceptance by the City and a timeline for
when City services will become available."
iii. 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. The temporary septic tank has never been approved by Washington
County.
iv. 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.
V. 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 process." (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.
vi. In addition to the fact, admitted by the School District, 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."
vii. 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.
16
viii. This omission was material because the School District was relying
on it to convince the City to approve their use of the Property, which was in
conflict with the clear dictates of the CUP conditions. Furthermore, the
School District suggested that "[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 subject, is to ensure adequate safety for employees of
the School District and the public at large.
ix. The City finds that this knowingly false statement and material
omission were related to the approval, i.e. the CUP.
F. Based on the foregoing misrepresentation, and pursuant to City Code City §
10.99(A)(1)(c)&(B)(5), the City has sufficient grounds to void the CUP.
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 revokes, terminates, and voids the Conditional
Use Permit for the Property previously granted by Resolution 2018-077.
BE IT FURTHER RESOLVED, the School District must discontinue its use of the Property
as a School District Transportation Center (bus terminal) by May 29, 2020, the last scheduled day
of the 2019-2020 school year.
This resolution was adopted by the City Council of the City of Lake Elmo on this 51h day of May
2020, by a vote of ayes and nays, as follows:
VOTE
Pearson
Bloyer
Dorschner
McGinn Nelson
Aye
CB'
EUi
[A/
Pr ❑
Nay
❑
❑
❑
❑
Abstain
❑
❑
❑
❑ ❑
Absent
❑
❑
❑
❑ ❑
17
By:
ike Ae , ayor
ATTES .
lie Jo so ; City Cierk
wo,