Lakewood Board of Supervisors Special Meeting
4-03-08
Lipe Conditional Use Permit Appeal Meeting Recessed from 3-27-08
Call to Order: Chair of the Board Phil Halverson called the meeting, recessed from 3-27-08 to order at 7:00 p.m. on April 3, 2008 at the Lakewood Town Hall.
Present: Supervisors Phil Halverson, Chuck Campbell, Tim Musick, Shannon Ostazeski, and Jerry Larson. Also Clerk Gene Bromenshenkel, Attorneys Tim Strom and Shawn Reed, and general public (register attached).
Purpose of Meeting: Chair Halverson opened the discussion by reviewing the purpose of the meeting: To continue the appeal hearing recessed from 3-27-08 on the appeal of Lipe Bros. Construction conditional use permit issued by the Planning and Zoning Commission in December of 2007. It was noted that another hearing date was scheduled at the last meeting, for April 16, 2008 if needed to complete the process. Attorney Strom noted that the 60-day rule ends about April 24, 2008. Chair Halverson noted that Item # 5.7 and #7 needed yet to be reviewed in addition to the remaining items of the Appeal.
Attorney Strom: Indicated that courts will review that the facts were followed and that the body needs to follow it’s own ordinances. Factual basis is primarily what courts look at.
The Board began discussion of the remaining items of the Appeal:
Item #VII of Appeal: Chair Halverson summarized the recommendations of the Planning and Zoning Commission on this item.
Supervisor Ostazeski question to Bob Wolfe (Chair of the Planning and Zoning Commission): How did the Commission determine the grand fathered portion of the parcel? Wolfe: Commission understood the grand fathered portion is the upper 10 acres. However, the Commission was not clear on this so did not address lot coverage and supported the intention of the 2001 Commission to not develop an industrial park.
Halverson indicated that Zoning Administrator Mears analyzed satellite photos, of which he has expertise in, to determine the use area of the salvage yard prior to Lipe Bros. ownership of the property.
Strom verified that the Commission looked at aerial photos to determine lot coverage. The Commission determined that the business activity area defined is as large or larger than the area actually being used.
Attorney Reed: Brennan Mears did a delineation of the upper parcel and not the lower area of the property. He reiterated that terms of lot coverage and grand fathering, and business activity area are being interchanged in the discussion.
Supervisor Musick: On parcel # 2, the upper 10 acres, is without road frontage. Bob Wolfe responded to Musick: The Commission was manly concerned about business expansion to the upper area rather than non-buildable lot issues for that area.
Musick: Have been over health, safety and general welfare previously. The town is not preventing any new structures on the upper 10 acres.
Motion by Musick to reject Appeal Items #7.1 and 7.2 and to support the findings of the Planning and Zoning Commission. Second by Larson. Discussion on motion: Ostazeski does not feel comfortable putting the township on the spot by determining the business activity area based on a “google map”. The Town shouldn’t make it more difficult for the property owner to improve the site. Is against the motion.
Musick; Would have to obtain a zoning permit anyway for any building construction. Vote on Motion: Motion Carried with one dissenting vote.
Remainder of paragraphs under Item #VII:
Relating to Salvage Yard. Halverson reviewed the planning and Zoning Commission findings of fact and conclusions.
Ostazeski: Question is, can we really do this and do we know that it has been seven years since they used the salvage yard rights. Doesn’t see revisiting the salvage yard, doesn’t solve the problem for the township. Would like to act with highest level of delicacy with that issue. Has problems with Town putting restrictions on the grand fathered use.
Attorney Reed: He did not offer any information on what was salvaged as it was not properly addressed by the Planning and Zoning Commission.
Attorney Strom: Related to the intent of the Planning and Zoning Commission. Motion by Supervisor Campbell to reject paragraphs 7.3 through 7.7 of Item #VII. Second by Musick. Motion Carried with one dissenting vote.
Item #VIII: Relating to Relationships of Town Board members with Planning and Zoning Commission members.
Chair Halverson read the findings of fact from the Planning and Zoning Commission. Motion by Ostazeski to reject paragraphs 8.1 through 8.6. Second by Larson. Motion Carried.
Item #VIII: 8.7 through 8.13:
Halverson reviewed the findings of facts of the Planning and Zoning Commission related to these paragraphs of Item # VIII. Attorney Strom reiterated the findings of facts and how the Commission determined that Great Lakes Stone is not a construction contractor. Motion by Ostazeski to reject paragraph 8.7 because the property is located in a MUNS-4 district. Second by Musick. Motion Carried.
Paragraphs 8.8 through 8.13 of Item #VIII:
Halverson requested Attorney Strom to review two motions of condition three and for development of additional information desired by the Commission.
Attorney reed noted an objection to the Nov. 13, 2007 meeting which was not held. Supervisor Ostazeski referred to portrayed influence of Supervisors to Planning and Zoning Commission members. The Supervisors reserve the right to discuss matters with Planning and Zoning Commission members and they did not violate any laws. Motion by Ostazeski to reject paragraphs 8.8 through 8.13 of Item VIII. Second by Musick. Motion Carried.
Motion by Musick at 8:30 p.m. to recess the meeting for five minutes. Second by Ostazeski. Motion Carried. The Meeting was reconvened at 8:37 p.m.
Item #IX: Paragraphs 9.1 through 9.3:
Chair Halverson reviewed the findings of facts of the Commission. Motion by Larson to reject paragraphs 9.1 through 9.3. Second by Campbell. Motion Carried.
Paragraphs 9.4 through 9.11 of Item #IX:
Halverson reviewed the Commission’s findings of facts and had comments on this section. Motion by Musick to reject paragraphs 9.4 through 9.11. Second by Larson. Motion Carried.
Item #X:
Ostazeski: It was previously brought up about concerns of not allowing appellant to speak. The process was followed by the Chair of the Planning and Zoning Commission but the situation may have been a bit awkward.
Attorney Strom: After the start of the Nov. 13, 2007 meeting, Lipe Bros. And Mr. Reed left the meeting and were not present for subsequent meetings when other issues were discussed.
Attorney Reed: Anything that came up after the start of the Nov. 13, 2007 meeting was not on official notice of the purpose of the review hearings. Motion by Campbell to reject paragraphs 10.1 through 10.5. Second by Musick. Motion Carried.
Appeal Item #XI: Paragraphs 11.1 through 11.6.
Halverson summarized the findings of facts of the Planning and Zoning Commission related to this item.
Ostazeski: There are a number of ways to present findings of facts. Can be done by narration or as line by line itemization. Would prefer to see a line-by-line itemization of facts rather than narrative statements for each item in the revised conditional use permit. Recommends reviewing and revising the findings of facts. Motion by Musick to reject paragraphs 11.1 through 11.6 of Item #XI. Second by Larson. Halverson noted he disagrees with Ostazeski’s suggestion to change the format of the findings of facts. Motion Carried with one dissenting vote.
Appeal Item #XII:
Chair Halverson asked Attorney Strom to comment on this item.
Attorney Reed: The new definitions in the findings of facts and revised conditional use permit are in violation.
Ostazeski: Feels the Town is in violation of Lipe’s rights in redefining the salvage yard to auto salvage yard. Also, the definition of business activity area.
Musick: Regarding the reference to takings, usually to qualify as a taking, there must be a 100% loss.
Attorney Strom: The statutes are not totally clear on takings, as to when regulations go too far to determine a taking. It is clear that a 100% loss has been determined by the courts to be a taking, less than that, not clear in laws. Motion by Larson to reject paragraphs 12.1 and 12.2 of Item #XII. Second by Musick. Motion Carried with one dissenting vote.
Item #XIII:
Ostazeski: Doesn’t feel thee was a violation. Motion by Ostazeski to reject paragraphs 13.1 and 13.2. Second by Campbell.
Attorney Strom: Has never heard any person who identified notes being passed between the Commission members and/or the Clerk and the Chair of the Commission. Motion Carried.
Item #XIV:
Attorney Strom: Mr Reed disagrees with some of the minutes and revisions made to the minutes. The Town Board cannot change the Planning and Zoning Commission’s minutes.
Attorney Reed: Objected to general procedural grounds that minutes were not approved at subsequent meetings, rather all were done at the end of all hearing meetings.
Attorney Strom: If Mr. Reed had an issue on approval of minutes, he never raised an objection during any of the meetings.
Attorney Reed: During the course of eight hearings, has issue with minutes of three meetings. Motion by Campbell to reject the Item #XIV. Second by Larson. Motion Carried.
Paragraph 5.8, Item #V:
Halverson: referred to court case language (the Marty Clark Case) with reference to existing salvage yard.
Ostazeski: At the last appeal meeting, reference was made about a scrap yard. Doesn’t feel a different term should be use at this time.
Attorney Reed: Not clear about Halverson’s statement that grand fathered rights can be lost. Reed: Clarifies that Halverson’s comments were not inferring that grand fathered rights were lost. Halverson concurred. Motion by Musick to reject paragraph 5.8 under Item #V. Second by Campbell. Motion Carried with one dissenting vote.
Chair Halverson asks if there are any other comments about finalizing the Appeal.
Attorney Strom advised that he will draft a summary and get it to the Board members by mid-next week.
Attorney Reed: How about the intention to handle the three proposals which are on the table?
Attorney Strom: The Board requested that Strom and Commission Chair Bob Wolfe to review the proposals offered by Lipe’s. Is seeking clarification as to what to review; including the proposal offered tonight by Mr. Reed?
Ostazeski: If we are going to go through the process of reviewing proposals, she considers it a waste of time if the Board is not willing to compromise.
Motion by Musick to request Mr. Strom and Mr. Wolfe to consider the April 3, 2008 letter and proposal with the other proposals offered earlier, in the review of the revised proposal offered and to offer a summary of the review by April 16, 2008. Second by Larson. Motion Carried.
Ostazeski: Is the Board willing to come to an agreement?
Campbell: Is willing to come to an agreement with considerations for property rights of individuals and also township resident rights.
Motion by Musick at 10:00 p.m. to recess the meeting to April 16, 2008 at 7 p.m. Second by Ostazeski. Motion Carried.
Respectfully Submitted;
Gene Bromenshenkel
Town of Lakewood Deputy Clerk