Lakewood Board of Supervisors Meeting
Special Meeting on 3-27-08
Recessed from 3-24-08
Lipe Conditional Use Permit Appeal
Call to Order: Chair Phil Halverson called the Special Meeting of the Board of Supervisors, recessed from 3-24-08. Called to order at 7:04 p.m. on 3-27-08 at the Lakewood Town Hall.
Present: Supervisors Tim Musick, Jerry Larson, Shannon Ostazeski, Chuck Campbell, and Phil Halverson. Also present: Clerk Beth Foudriat, Attorney Tim Strom, Attorney Shawn Reed and public (attendance register attached).
Purpose of Meeting: To continue with the appeal of Lipe Bros. Construction Company on the revised conditional use permit issued by the Lakewood Planning and Zoning Commission in December of 2007.
Chair Halverson outlined the procedure for the Meeting: 1) Attorney Reeds remarks on the Items 9 through 13 and concerns about Commission minutes 2) the Board of Supervisors for consideration and decision making on items.
Remarks of Attorney Shawn Reed to remarks of Attorney Strom
On item #IX: Township Planning and Zoning failed to follow adopted procedures. Details of Section 8.03 was previously reviewed as it relates to hearings process. Concern regarding the use of word applicant and Mr. Lipe was not considered as an applicant. Order of hearing is set forth according to rules. After staff report shall hear from the applicant. In fairness to Mr. Lipe after Attorney Strom presentation the proceeding should have turn to Attorney Reed for presentation. After summary of case, then should have had a chance to hear from Jerry Lipe. Second concern was the lack of ability to cross examine and this is an issue of fairness to allow everyone to hear what the applicant has to say.
On item #X Township violated client’s due process by addressing new issues during staff discussion without allowing comments. Response to Attorney Strom’s argument regarding these issues than there was more than opportunity to comment. However, of 8 hearing really only 2 hearing, August 15 & 28, were hearings. The other 6 were staff discussions and limited opportunity to participate. Suggests to listen to tape/disc to hear attempts to get recognized. This is an issue of fairness.
On item #XI Townships findings conclusion contained misleading, false and scandalous statements regarding the client. The 33 pages of a documents, findings or conditions, are to be recording against property. Planning and Zoning findings state pattern of misuse of property was troubling. Reed disagrees with the statement. Not received conditional use permit at first then filed when realized need for conditional use permit. Always clear that he was planning to rent part of property. Great Lakes Stone in 2006 sent by Lipe to Lakewood township to determine needs for him to use. Johnston Masonery in building by using desk in Great Lake Stone.
On Item 3 #XII
Definitions not reasonable. Grandfather issue right to use, lot coverage, retail sale, and by in acting new definition impacts theses rights. Business activity area defines how much lot coverage area he can use, by imposing definition changes lot coverage use. Can’t argue grandfather rights to get permit. Don’t need to address lot coverage because not primary issue.
On Item 3 #XIII
Township violates open meeting Law. Sited a note passing incident. Question of open meeting law violation, Aug.15 & 28, 2007, meeting between Board and Commission. Issue with serial communication between board member.
On issue with Planning and Zoning meeting minutes:
Sites issue with Planning and Zoning meeting minutes approval manner. All 8 meeting minutes were approved by Planning and Zoning Commission regarding Lipe’s Conditional use permit on January 29, 2008.
August 15, 2007 page 1 paragraph 1 changed Town Board of Supervisors to zoning administrator. Zoning administrator did not direct issue, but allowed Town Board of Supervisors to start process. This would be changing history, because Town Board of Supervisors did direct issue.
August 28, 2007 minutes additional language added to description of exchange between Supervisor Halverson and Commissioner Wolfe.
November 13, 2007 Commission added a paragraph regarding meeting and Attorney Tim Strom was not prepared. Attorney Storm did receive email and voice mail, but not understand there would not be a meeting.
Attorney Shawn Reed requested that he wanted to enter in to the records campaign letters of Phil Halverson and Tim Musick. Phil Halverson questioned at this time should additional information added to the records. Additional need was presented by Attorney Shawn Reed. Letters not allowed in to the records.
Summary of Attorney Shawn Reed:
Long process started in 2001, client wants to do what he had been doing for the last 6-7 year. Long process, starting in June, 2006 to address the issues. Tired to sit down in small group and parties were close. Tried to bridge gap, revise proposal and brought to town. Proposal not heard. 2001 conditional use permit issues were 1) Great Lakes Stone be on property, 2) can he rent. Solved this problem by amending the original conditional use permit special by removing Lipe Brothers Construction, Inc from the permit.
Board of Supervisors to begin deliberation on items III, V-XII: Phil Halverson: Purposes to take them items in order and subparts of issues address. Supervisor Halverson proposed that he will summarize each section and subpart, then have board discussion.
Motion by Jerry Larson to take a 5 minute recess. Second by Shannon Ostazeski. Motion passed. Recess taken at 8:00. The meeting was reconvened at 8:05p.m.
On item #III, with 3 subparts
Supervisor Halverson summarized this section.
Related to Oct 6, 2006 review and issues to address is procedural and references to violation of CUP and size. Ended in gentleman agreement with Great Lake Stone agreed to leave. These are issues of health, welfare and issues addressed in zoning ordinance and issues in our comprehensive land use plan.
Supervisor Campbell: Industrial park not proposed by Mr. Lipe, but CUP does go with land.
Supervisor Ostazeski: When pertaining to public health issues rational basis of modifying CUP is appropriate because of the violation.
Supervisor Musick: Some feel that industrial park not pertinent to this, but industrial park is a cluster of businesses. Industrial park not permitted in our township. More than one business is an industrial Park. Difficulty approving a condition that is not permitted in our zoning ordinance.
Supervisor Halverson: An appropriate motion would be to accept or reject the assertion that the township failed to identify problems that aversely effected health safety and welfare.
Attorney Storm: another way to state this question if the Board accepts or rejects the appeal.
Motion by Ostazeski to reject appeal for III, all sub-items. Second by Campbell. Discussion: Supervisor Halverson: Are we discussing each item or sub-items? Supervisor Halverson planned to take the items and subparts as Attorney Storm took them. Supervisor Ostazeski: Fine with amending the motion. Motion to amended the motion, by Musick to amend the motion to reject the appeal on item III subpart 3. Second by Ostazeski. Motion to amend carried. Vote on amended motion to reject the appeal on item III subpart 3. Motion carried.
Item # III Supervisor Halverson reviewed this issue.
Supervisor Musick: Concerns with CLU and mixture of on Jean Duluth commercial and residential can cause conflict and are related to general health and welfare issue.
Motion by Musick reject item III.1 and III.2. Second by Larson. Motion carried.
Item # V Supervisor Halverson reviewed the issue and Attorney Storm testimony regarding scope of review. Two issues that are in this items is Great Lakes Stone the type of business permitted and that two businesses were on the property with a CUP only for one. Attorney Reed had challenged actions taken were taken to amend the CUP without proper notice.
Supervisor Musick: Questions which items in question?
Supervisor Halverson: under # V issues related to the notice of scope hearing meeting exceeded scope of hearing, address V.1, V.2, V.3, V.4 The question was there proper notice for hearing and did actions taken accede scope of review.
Supervisor Ostazeski: she felt it was the clear what purpose of meeting on August 15, 2007. Hearing started as a meeting to review Mr. Lipe’s CUP. Seemed clear the purpose of the meeting.
Motion by Campbell to reject item V.1 though V.4. Second by Larson. Motion carried.
Item V.5 –V.7
Supervisor Halverson summarized sections of item V.5 – V.7. Attorney Reed contends that Mr. Lipe was to by shut out of discussion. Attorney Reed stated listening to tapes would demonstrate this. Attorney Strom: Mr. Lipe was not shut out and 1st and 2nd hearing public comment was taken. Supervisor Halverson reviewed meeting minutes and Attorney Reed had provided comments on numerous meetings. Mr. Overum would not attend any more meetings, but meeting minutes were sent by Attorney Strom. Attorney Strom: Minutes were not by to Attorney Reed by Attorney Strom. Township might have sent minutes.
Supervisor Halverson: Public meeting for 2 meetings had comments, then Planning and Zoning staff discussion only at meeting.
Supervisor Musick: Record show they had opportunity to testify, but staff discussion necessary. Motion by Musick reject appeal items V.5, V.6, and V.7. Seconded by Larson. Discussion: Supervisor Ostazeski: Agrees that public comment was allowed. Review of minutes and was at a couple of the meeting. Planning and Zoning did not think these meeting to go on so long and unprepared for attorney to come and question people. Public comments given, but public hearing not entirely public and allow certain issues to be address. Not agree with motion on table. Halverson: Clarified questioning of a witness compared to public hearing. Supervisor Ostazeski: Need to be critical of ourselves. Concerned about issue of allowing people to address issues. Some items up for discussions and other were not and public hearing not entirely public. Question to Bob Wolfe: how he intended to address the lengthy process by closing to staff discussions or was there an understanding that at certain times Mr. Lipe would be allow to address the issues. Response by Wolfe: Planning and Zoning was asked to review the CUP and determine if Lipe was in violation of CUP. Once determined violation had occurred then commission job to determine what do, and ask Mr. Lipe and public for comment. Decision to modify CUP and define conditions. Supervisor Ostazeski question to Attorney Reed what was your reason not to attend the meetings any more. Attorney Reed response that they has been direct to get history on the property and provide documents to help guide commission on what to do. Information accepted, but ignore. Nature of salvage yard should not discussed to extent, therefore choose not to come to next meeting. Limited opportunity to provide input to process we thought we should. Supervisor Halverson stated the motion that Attorney referred to was regarding a meeting about nonconforming uses of property. Motion carried.
Item # V.8, V.9.
Supervisor Halverson reviewed issues in these items of changing the term salvage yard to auto salvage yard citing hearing in 2001, 2007 and memo from Mr. Lipe to Mr. Overum letter of 2002. Commission 2007 clarified existing salvage yard to read auto salvage yard.
Supervisor Ostazeski: Planning and Zoning exceeded authority to change savage yard to auto salvage yard. Court case of April 5, 1985 uses scrape yard not auto salvage yard cited. Taking rights by changing language.
Supervisor Musick: Visited site in 1980’s and prominent use was auto crushing and salvage was done on the site. It has not been used as a salvage yard since 2000. Planning and Zoning was correct in being more specific and calling it an auto salvage yard.
Supervisor Ostazeski: Planning and Zoning language is specific p 71-71 of ordinance regarding what salvage means. Should not change the language in the CUP.
Supervisor Halverson: The question is if Planning and Zoning had evidence to change existing salvage yard auto salvage yard. Supervisor Ostazeski: Evidence that it was both sides therefore keep language the same.
Supervisor Musick: Planning St. Louis County salvage facility definition includes motor vehicles and parts, and appliances, and general recycling items, such as aluminum, plastic glass. Previous owners only recycled items to motor vehicles.
Supervisor Halverson: Hearing Mr. Lidder stated according to definition could bring in other types of salvage. His concern and that of the commission about the types of salvage that could be done and found evidence to change the definition.
Attorney Reed: Not allow evidence in Supervisor Musick statements about what salvage has occurred since 2001.
Supervisor Halverson: Noted comments.
Supervisor Ostazeski: Changing the wording has evidence on both sides and putting us at risk. Potential risk of taking property right with changing the language.
Attorney Strom: Two issues to clarify 1) does evidence support the change of language, 2) was that the best decision.
Supervisor Halverson: Stated the V.8 regarding to decision to be arbitrary and cupreous and V.9 relates to the question for not enough evidence to support language change.
Supervisor Ostazeski: Questions if comfortable making change knowing that information was requested none was presented, and not knowing for sure on Mr. Lipe’s property what salvage is occurring.
Attorney Reed: No request for salvage information.
Supervisor Halverson: Stated he remember the requested by Holte and for tax recorded.
Attorney Reed: Discussion only not a formal motion brought forth. Discussions were regarding what was the definition of scrape/salvage.
Supervisor Musick: Look at this in relation to grandfather clause. Grandfathered because savage yard was there at the time zoning ordinances were established. Auto salvage yard was the dominating use at the time zoning ordinance was past.
Attorney Reed: Objections to Supervisor Musick comments, and now can’t cross examine or add comments.
Supervisor Halverson: Objection noted.
Supervisor Ostazeski: Read part of letter April 5, 1985 from previous court case stating a scrape yard was on property.
Supervisor Halverson: Issue of grandfathering is complex. Planning and Zoning hearing did not fully addressed and this can be brought forth at any time, but burden is of evidence is on Mr. Lipe hands.
Attorney Strom: Evidence you rely on was developed at the planning and zoning commission meeting. Questions at hand are was there evidence to support the planning commission and does this board agree with that decision.
Supervisor Halverson: asked does the evidence to change language from salvage to auto salvage.
Motion by Ostazeski planning and zoning commission exceeded authority by changing definition of salvage yard to auto salvage. No second.
Motion by Campbell that planning and zoning commission did have evidence to support changing existing salvage yard to auto salvage yard. Second by Musick. Disscusion: Supervisor Ostazeski stated she does not feel confident that enough information was gather to change the language. Motion carried.
Motion by Ostazeski to take 5 minute break. Seconded by Larson. Motion carried. Break started at 9:25 and reconvened at 9:31.
Supervisor Halverson: A generic resolution was passed that is applicable to V.9, though V.11 and the issue to evidence. At an impasse with V.8 and move on to VI. Reviewed item VI. that planning and zoning exceeded authority by applying new definitions. Reed commented earlier meeting that Planning and Zoning should limit definitions and keep broad definitions. Planning and Zoning does have the authority to adopt conditions to put in CUP.
Supervisor Musick: Questions if definitions in other types of business permits would be conditions for CUP.
Supervisor Halverson: Yes, CUP defines nature of business. Planning and Zoning has authority to put in conditions. Decided to define what is permitted so not to return to this issue if another business comes in.
Supervisor Musick to Attorney Strom: Definitions in CUP solely of CUP and for not ordinance.
Attorney Strom: CUP applies on one property. Commission can apply reasonable conditions on CUP to fit in area.
Supervisor Musick: terms in CUP are incorporated by Planning and Zoning to determine this case. Motion by Musick to reject appeal items VI.1 And VI.2 and accept terms as defined by Planning and Zoning commission reference therein. Second by Campbell. Discussion: Supervisor Ostazeski: The terms apply to only to this permit. Business active area was a good attempt to limit size of business and with in scope of CUP. Confused about types of action legislative vs judicial distinction. Scope of authority exceeded in this issue by defining what a construction contractor business is and action is legislative in nature. Business use area is judicial in nature, because we are asked to define size of business. Concern about limits opportunity of business owner, but taking in to consideration of town people. Supervisor Musick: Planning and Zoning attempt to define what business to allow on property. Otherwise would not have control on type of property. Supervisor Campbell: the definitions put forth are reasonable to do focus on that CUP. Some definitions referred from original CUP. Supervisor Halverson; Clarified what are legislative and judicial decisions. Attorney Strom: point of clarification which section of VI.1 &V.2 or entirety. Motion reread. Motion carried.
VI.3 & VI.4
Supervisor Halverson reviewed items in this issue.
Motion by Musick to rejects items VI.3, VI.4, VI.5. Second by Larson Discussion: Supervisor Ostazeski: Agree to part of the items that identified valid public health safety and general welfare issues, and limiting scope and area. We are taking away property right by changing the definition of salvage yard. Motion carried.
Motion by Supervisor Ostazeski to continue meeting for another 30 minutes. Second by Musick. Motion carried.
Item #VII
Supervisor Halverson reviewed sub sections of VII.1- VII.6 Question to Attorney Reed to explain VII.2 and concerns. Attorney Reed: Planning and zoning additional requirement to obtain an amended CUP when adding a building failed to find a valid health, safety for the requirement.
Supervisor Halverson therefore we will address VII.1 & VII.2 together. Then address VII.3- VII.6 together. Finding of fact stated that Mr. Lipe would need to come back to planning and zoning if another structure is added need to apply for changes to CUP. If they want to rent to others and add building then he would have to come back and ask. No structures have been in the back 10 acres. Do not want a line of buildings.
Supervisor Musick: Issues of new structures does not limit building a structure, but could apply for a permit.
Supervisor Halverson: This imposes a condition to amend CUP for a new building in that area. Currently the CUP states that there is not building in that area. The area can be used for storage as it has in the past.
Supervisor Campbell: Question: this further defines business activity area?
Supervisor Halverson: Defines the nature of conditional use of the back ten acre, which is different from the front 10 acre.
Attorney Strom: Concerns raised by commission members there has never been a structure in the back. Does not limit putting up a structure, but if it an appropriate type of use will amend the CUP.
Supervisor Ostazeski: Does building permit process address this issue?
Supervisor Halverson: No does not. Building permit allows you to build if you have a right to build. Planning & Zoning felt the permit process did not limit an industrial park.
Supervisor Larson: They were trying to put in some control. Want Mr. Lipe to come back if he wanted to build.
Jerry Lipe: I can’t build something without getting a permit. This means that I have to amend the CUP.
Attorney Reed: You know how successful dealing with a CUP is.
Supervisor Ostazeski: No objection to allow property owner to apply to put up a building to store products. Permits would limit industrial park and support the property owner. Opportunity to support that property instead of dealing with this CUP process. An amended CUP is a long process and unreasonable limiting the scope of the business. We are limiting the scope and location of buildings.
Motion by Ostazeski that Planning and Zoning Commission exceeded the scope of their authority in adopting no new structures limitation as referenced in paragraph VII.1. Second by Campbell. Discussion: Supervisor Campbell supports this motion. The definition of the constructor/contractor business limits the type of structures. The scope of business would limit type of structure. Supervisor Halverson: the motions allow for any number of buildings. Nothing in the building permit would limit number of buildings. Supervisor Ostazeski question to Bob Wolfe: Why the business activity area does not limit number of building, are we concerned about the number of business? Bob Wolfe reply: business activity area does not limit number of building, but limits the amount of acreage for business. Coverage is an issue and do not have information on current coverage and grandfather lot coverage. And felt it necessary to put some limitation on number of buildings. Supervisor Ostazeski: understand rational, but applying for amended CUP is a long process and rather encourage business activities. Bob Wolfe: Part of the rational was to allow the business owner to build, but to control of number of storage buildings on property by amending the CUP. Supervisor Ostazeski: If a person want to get a building permit what type of conditions do they have to meet to build a structure? Bob Wolfe: No best person to answer. Conditions apply to set back and lot coverage need to met. Supervisor Ostazeski: Only complaint about the property is the storage of stuff out in the open. With this being the only complaint, encouraging construction of storage building would ease the complaint. Wolfe: Ordinance allows for screening to hide storage and would take care of the complaint. Supervisor Musick: This is a non-conforming use in residential zone. We need to have a handle of what is being built. Industrial park is not allowed any where in the township. Approving would be a mistake. Supervisor Ostazeski: Need to remember if this is a reasonable request in scope of this situation. With restrictions on the property saying what a construction business is, business activity area is, how many acres can be auto salvage yard and this is small detail. Supervisor Halverson called the question. Motion not carried 2 for and 3 against.
Motion by Ostazeski to recess this meeting at 10:30 pm to Thursday, April 3, 2008 at 7 p.m. and reserve April 16th at 7 p.m. as a potential additional meeting date. Second by Musick.
Motion Carried.
Respectfully Submitted;
Beth Foudriat
Town of Lakewood Deputy Clerk