Draft copy – subject to approval
Lakewood Board of Supervisors Meeting
Special Meeting on 4-16-08
Recessed from 4-03-08
Lipe Conditional Use Permit Appeal
Call to Order: Chair Phil Halverson called the Special Meeting of the Board of Supervisors, recessed from 4-03-08. Called to order at 7:03 p.m. on 4-16-08 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.
Supervisor Halverson: Plan to proceed with the Decision upon Appeal, Memorandum 4/10/08, and minutes of previous special meetings 3/36/08, 3/24/08, 4/08 & 4/16/08.
Discussion of corrections on Amended Conditional Use Permit p.5 correct spelling of Phillip to Philip. Discussion of corrections on Decision Upon Appeal page 4 -1st sentence, 2nd paragraph that should be as. Page 14 correct wording of 1st full sentence to read.” If then directed the zoning administrator to work with Lipe Brothers and its attorney and with town attorney to try to develop more information about how much lot coverage might have been grandfathered in.” Page 9 2nd paragraph insert unanimously before rejects, under 6.4 last line insert unanimously before rejects.
Supervisor Halverson: Address the septic system issue on the Amended Conditional Use permit. Currently the septic system is outside of the business use area.
Supervisor Ostazeski: Not address septic system because it was not part of appeal.
Attorney Reed: Agree with Ostazeski, putting a condition in CUP that septic be in business use are might be resisting client. Septic in business are might restrict ability to replace system.
Supervisor Halverson: In 6 acres should have area to put in system.
Attorney Strom: No previous testimony as to position of the septic system. System believed to be inside the business use area, but is currently outside. Creates a new violation with amended CUP. Revise because existing septic system outside and amend to prevent violation.
Supervisor Halverson: Purpose is to make changes on appeal.
Supervisor Ostazeski: Septic not part should not change.
Attorney Strom: Appeal process because town board has power to decide. Town Board change after looking at other information.
Supervisor Campbell: Can we add an addendum to correct the situation, instead of changing appeal since not discussed in other meetings?
Supervisor: Larson: Opportunity to make changes now.
Supervisor Musick: In lot coverage, how is septic system separated out?
Supervisor Halverson: Not in lot coverage, but part of business use area. All business activity much occur with in business activity area and currently septic not with in area.
Attorney Reed: Just strike out septic from section.
Motion by Ostazeski to add an amendment to Decision upon Appeal that current septic system continued without violation of proposed CUP. No second.
Supervisor Campbell: No problem with current septic system but what happens when this fails. Add language to address the situation.
Attorney Strom: When or if it fails, new septic system should in business activity areas, but if not able to be placed in business activities area then difficult determine where it should be placed.
Motion by Larson to allow current septic system continue outside of business activity area, if needed a new septic system would be in business activity area. 2nd by Musick. Discussion: Is that possible considering current business activity area. Supervisor Musick: If not able to put new septic system work with St. Louis County and town to make arrangement. Mr. Lipe: Difficult to get permit. Motion to amend the Motion by Musick to continue with current septic system if new system is necessary septic system would be in business activity area providing that it is locatable by St. Louis County. 2nd by Campbell on Motion to Amend the Motion. Discussion: Go back to existing motion and work with St. Louis County and town and Mr. Lipe. County has to come in to approve site. Then get variance at that time. Supervisor Ostazeski: Disagree, not allowing or make it more difficult for business to operate. Septic system allowed in or outside of business activity area. Supervisor Larson: Responding to legal process, if we do nothing are we creating illegal zoning. Attorney Strom: Unknown as to where they septic system was by planning and zoning. No intention of commission to make violation. How best to deal with situation. Supervisor Larson: County will make decision where it will be with Mr. Lipe. With the given information don’t insist where it is in the future. Supervisor Halverson: Need to address where it is now currently. Amendment to motion not carried 1 to 4. Motion carried unanimously.
Motion by Ostazeski to exempt septic system from definition for requirement from being inside business activity area. 2nd Discussion: Supervisor Larson: What happens if St. Louis County says inside business activity area. Supervisor Halverson: were are not saying where. Motion carried.
Supervisor Ostazeski: Acknowledge point Mr. Overum stated in letter and should include in V, did not have benefit of audio for 2001 CUP, but based on minutes and memory. Agree with point that township not clear in dealing with Mr. Lipe.
Supervisor Halverson: Planning and Zoning cited terms of 2001 CUP.
Supervisor Ostazeski: Major point audio not available, but only minutes.
Supervisor Campbell: Minute information is valid.
Supervisor Ostazeski: with audio clear up questions easier.
Motion by Ostazeski to add language to V.1- V.8 commission did not have benefit of audio in 2001 CUP. No second.
Motion by Ostazeski to approve Decision upon Appeal pending amendments discussed earlier in meeting. 2nd by Campbell. Discussion: Attorney Strom: Checked corrections and add paragraph to address septic system. Motion carried.
Supervisor Halverson: Approval of Amended CUP is next item.
Supervisor Campbell: This document is identical to previous version. Motion by Campbell to adopt amended CUP that is before us with proper date and corrected name spelling and language corrected for septic system in Business Activity Area. 2nd Musick. Motion carried.
Attorney Strom: recommend change to Board that chair of Board of Supervisor be authorized to sign CUP. Motion by Larson that Board Chair be authorized to sign Decision upon Appeals and Amended CUP as corrected. 2nd by Musick. Motion carried.
Supervisor Halverson: Next item to continue hearing and approve minutes at next Board of Supervisor meeting.
Supervisor Campbell: Can we hold the minutes to next board meeting?
Attorney Strom: With in the rights to hold minutes.
Supervisor Larson: recess this meeting until just prior to next Board of Supervisors meeting or part of meeting.
Motion by Larson for purpose of approval of minutes to this recess this meeting and reconvene until 5/7/08 at 6:30pm. 2nd by Musick. Discussion: Supervisor Ostazeski: why wait. Supervisor Musick: we haven’t read. Motion carried 4 with one opposed.
Written Report of Attorney Storm and Bob Wolfe –April 10, 2008
Supervisor Halverson: Letter was received by everyone on board. He reviewed the memorandum.
Supervisor Campbell: When was parcel created?
Attorney Strom: Assume before May 31, 1973. Exact date not known. Approximately two 10 acre parts.
Attorney Reed: prior to 1973 parcels were created.
Question by Bob James: What are we doing now? Appeal hearing no public notice given.
Supervisor Campbell: Part of Appeal process.
Attorney Reed: Discussed as part of process.
Supervisor Halverson: Attorney Reed and Mr. Lipe wish to consider proposal first.
Attorney Reed: Continue as part of appeal. Mr. Lipe stated and brought up proposal numerous times.
Supervisor Campbell to Attorney Reed: Do you consider this part of appeal process?
Response by Reed: If allow to have the opportunity for discussion on proposal.
Supervisor Halverson: No objection.
Motion by Ostazeski to take a break to make copies of Memorandum on proposal. 2nd by Musick. Motion carried. Reconvened at 8:37 pm.
Reviewed memorandum by Attorney Strom and Bob Wolfe. 3 representatives met with Mr. Lipe and lawyers to find common ground. Unable to recommend March 3, 2008 proposal. Determine to discuss point of memorandum or proposal.
Supervisor Campbell: Proposal puts us in contradiction to approved Decision on Appeal and CUP. What the plan for property is not in memorandum. Proposal not upholding zoning ordnance and comprehensive land use. Let us know what you want to do with the property to determine if it ifs ok. Frustrated with process and need to be done. Changes done with concessions with clear plan.
Supervisor Ostazeski: Which conditions needed to have operating now and what current violations. Change language on retail sales.
Attorney Reed: Language regarding retail sales came up with small group meeting.
Supervisor Ostazeski to Attorney Reed: Any other conditions that put in violation as approved.
Attorney Reed response: Don’t know. Put together 3 proposals and unable to discuss. Put side by side and discuss concerns. Retail sale is a concern. This is an example not an exhaustive list. Identified trouble issues before appeal. Client strives to abide by CUP.
Bob Wolfe: CUP up to May 15, 2008 to comply and willing to extend. Mr. Lipe had asked for Oct, but that is too long. Screening was agreed to for Oct.
Attorney Reed: GTS-Sept date. Screening Oct 31, 2008.
Bob Wolfe: Lighting, etc he has time to be compliant.
Supervisor Ostazeski: Amend retail sales part to state, retail sales are not permitted except incident to contractor business.
Bob Wolfe: Discussed examples of incidental sales was process used to come up with solutions. Issues of how to describe how much is incidental. This issue is not clear.
Attorney Strom: Retail sales is someone coming on site.
Supervisor Campbell: Concern about what is retail sales and what is incidental sales. Do not put incidental because we don’t have a definition.
Attorney Reed: At this time no retail sales are allowed.
Supervisor Campbell: 2001 Cup has been limited sales.
Attorney Reed: Original CUP had no restriction. This CUP absolute prohibits occasional sale. Discussed plans of 3 proposals previously presented. 2 proposals provided returning 10 acres, of the 20 acres, to residential. This would address the concern with town regarding residential. Lower 10 acres used for business. Concern regarding industrial park addressed because size limits ability to develop.
Supervisor Campbell: Suggested sitting down out of meeting to discuss differences and work thought issues before with get here.
Attorney Storm: Address words which have judgment attached to them, such as incidental.
Supervisor Ostazeski: We won’t punish, but later boards may mot see the same way.
Attorney Strom: Current CUP states no retail sales.
Supervisor Halverson: Retail sales incident to are ok.
Supervisor Ostazeski: Comfortable with language in Lipe proposal.
Supervisor Musick: Finding of fact was approved and allows number of business. Limiting retail sales would be difficult. Support no retail sales.
Supervisor Ostazeski: Occasional sales ok and commission would be ok, but are locked in to language.
Bob James: Assumption that a number of businesses will occur, not a fact. Statement of incidental to business limits sales, therefore running his business.
Supervisor Campbell: Agree language is necessary, but not sure of language. Use a separate meeting to decided this, not in pressure of a public meeting.
Supervisor Halverson: Add language that allowed by owner of property therefore renters would not be allowed.
Supervisor Musick: That has merit, but what if cooperatives develop.
Mrs. Lipe: This would limit our business and push customers to competitors.
Mr. Lipe to Musick: Are people from our church your concern?
Supervisor Musick: No. If multiple owners of property, then all owners then complicated issue down the road.
Attorney Reed: Can’t survive on trust approach. Language was ok by small group.
Supervisor Larson: No objection to occasional sales. Language to acknowledge occasional sales is needed.
Attorney Reed: If he leases the business then leasee could not carry out business. There are areas of laws that are subjective.
Supervisor Ostazeski: Keep language as in proposal. Motion by Ostazeski to change language to retails are not allowed except that occasional and intermittent sales incidental to a construction contractor business are allowed. 2nd by Campbell. Discussion: Supervisor Campbell: understand incidental and ok with language. Supervisor Larson to Campbell: Same case with every renter? Supervisor Campbell: ok and with any other business there. Intent not for large retail sales. Supervisor Musick amended Motion to add only behalf of property owner and no one else. 2nd by Larson. Discussion:Supervisor Ostazeski: do not agree with amendment. Ok with other business to do intermittent sales. This is reasonable. Supervisor Musick: MUNS4 zone 4 area. This is residential not retail. There is not limit to number to businesses. Therefore need to control retail sales with language. Supervisor Campbell: Intent clear not to have commercial sales in this zone. Currently not a threat to community therefore have to address in future if change in business. Not support amended motion. Supervisor Ostazeski: Need to compromise and make concession and allow this business to operate. Attorney Reed: If the issue in the future is business traffic then deal with that issue. But limiting renters does not much sense. Supervisor Halverson: Township goes to owner if increase in sales.
Vote on amendment of motion 3 to 2. Amendment carried. Vote on motion read as amended 3 to 2. Motion carried.
Attorney Storm: Reconfirmed that the appeal was denied, but changing language of Amended CUP.
Supervisor Ostazeski: If we discuss proposal, if not willing to compromise then don’t want to waste time.
Supervisor Campbell: Issues still need to be worked on. Proposed to sit down and talk about compromise. This will allow community trust to redevelop.
Attorney Reed: Can’t direct Board of Supervisor, but don’t want to close door.
Supervisor Campbell: We need to work for community.
Supervisor Ostazeski: Proposal out, Bob Wofle and Attorney Storm did a good job with comparison. Neither is right or wrong. Work for a middle ground.
Supervisor Musick: Township has compromised and not anymore.
Motion by Musick to reject the proposal from Mr. Lipe as amended. 2nd by Larson. Discussion: Supervisor Ostazeski: Only change allowed Mr. Lipe to operate tomorrow, not really a compromise. Options are going to court or working out a compromise. Supervisor Campbell: Make amendments then outside public meeting work out. Motion Carried. Supervisor Ostazeski:
Attorney Reed: Remind Board of Supervisors that stated willingness to compromise.
Bob Wolfe: Asked if addition compromised by attorney not to violate ordinances or CLU plan.
Motion by Musick to authorize chair to sign off amended CUP with amendment with retail sales. 2nd by Larson. Motion carried.
Motion by Musick to adjourn the meeting to recess to 5/6/08 at 6:30 pm. 2nd by Larson. Motion carried.
Respectfully summated
Beth Foudriat
Town of Lakewood Clerk