LAKEWOOD BOARD OF SUPERVISORS MEETING
JUNE 20, 2007
The special meeting of the Lakewood Board of Supervisors to consider the Lipe Bros. Construction Co. land use issues was called to order by Chair Tim Musick on Wednesday, June 20, 2007, at 7:08 PM at the Lakewood Town Hall. Supervisors present: Tim Musick, Phil Halverson, Shannon Ostazeski, Chuck Campbell, and Jerry Larson. Also present were Deputy Clerk Dave Gerhart, Zoning Administrator Brennan Mears, Township Attorney Tim Strom, Planning and Zoning Chairperson Bob Wolfe, Jerry and Janet Lipe, and Steve Overom, the attorney for the Lipes. In addition, several public citizens were present (register attached).
Musick opened the meeting by reviewing some of the history of this issue. On 10/18/06 the Planning and Zoning Commission held a public hearing to review the terms of the 2001 Conditional Use Permit (CUP) issued to Lipe Bros. Construction Co. at the corner of West Tischer and Jean Duluth Roads. The major issue was the leasing of land to Clint Massie and Great Lakes Stone and whether this constituted a violation of the CUP issued to the Lipes.
P&Z had three options: 1) To alter the terms of the CUP, 2) To keep the permit the same, or 3) To revoke the permit. At that meeting a motion passed to not alter the terms of the CUP, and Great Lakes Stone was asked to vacate the property by June 30, 2007. Mears brought the P&Z recommendations to the Town Board.
Steve Overom, the Lipes’ attorney also discussed the history of the property. He made the following points:
1) The CUP applies to all 20 acres owned by the Lipes. It does not restrict leasing or rental or the number of storage buildings, and there is no limit specified on the size of shops or storage facilities. Activities not prohibited in a CUP are allowed.
2) There are a number of other businesses operating in the near vicinity of Lipe Bros., and the businesses on the property are consistent with the MUNS4 designation. MUNS4 allows the presence of businesses of various types, some more objectionable than Lipe Bros. and Great Lakes Stone, on lot sizes of 4.8 acres.
3) There are currently two buildings on the southwest 10 acre site.
4) The Town has previously lost court cases related to actions by the previous owner of the property.
5) At the time of issue of the CUP in April 2001, there was a business, Timberland Roofing, renting property from the Lipes.
6) The CUP may have been issued in violation of the 60-day rule that specifies the time frame for approval and notification of a CUP. A CUP runs with the land, not the owner, and ambiguities in the wording of a CUP are usually construed against the municipality in court cases.
Mr. Overom then proceeded to offer a potential compromise solution to the conflict. This plan was presented as a packet to the Town Board members. In brief, the Lipes would make several concessions, including removing the northeast 10 acres from the CUP and dividing this parcel into two five-acre lots for residential development. The southwest 10-acre parcel would also be divided (along a north-south line) into two five-acre parcels. A salvage yard would be removed as a permitted use, and the property would be appropriately screened with evergreens.
Musick pointed out that this plan would require 2 variances, one for more than 2 parcels being served by a single driveway, and a second for building on lots without road frontage. Overom contended that there is a paper road that the Town could use to access the properties, but Strom pointed out that after 25 years of no use, residents must vote to tax themselves to regain the road as a maintained township road. A disagreement ensued as to whether a paper road can be used to access interior parcels and be considered “road frontage.”
Strom then discussed the legal issues from the township’s point of view. A major question is whether 2 businesses on the property violates the terms of the CUP that was issued only to Lipe Bros. The decision made by P&Z was to leave the conditions the same, and that would imply that only one business is allowed on the property. He noted that, although there were two businesses present at the time that the CUP was issued, the permit referred only to a single business.
Strom suggested referring the matter back to P&Z to clarify the decision of 10/18/06. From there it would be determined if the issue is to go to court. Although the April 2001 CUP hearing suggested that only one business was allowed, there was also some discussion of subletting on the parcel. However, later minutes from P&Z showed that P&Z did not consider subletting permissible.
Strom stressed that the Town must follow proper legal procedures, and P&Z must specifically decide if there is a violation of the CUP and if the CUP should be revoked or changed. Ostazeski maintained that P&Z decided on 10/18/06 that Great Lakes Stone had to leave by 6/30/07, but Strom said that no consequences were specified, such as revoking the CUP.
Musick said that the issue should go back to P&Z and that P&Z should write up “Findings of Fact” and make a specific recommendation that the Town Board can act on. He also expressed concern that splitting of the lower 10 acres could lead to an “industrial park” type of development that is prohibited in the township.
Overom said that his clients compromise proposal will be withdrawn if more enforcement action is recommended.
Campbell said that the request for unlimited development on the southwest 10-acres is troubling, but that he is also concerned about the development on the northeast 10 acres. He asked for a specific plan from Lipe.
Lipe said that his plan is to sell two parcels of 5-acres each for residential development on the northeast 10-acre parcel. The second part of his plan is to locate two businesses on the on the southwest 10-acre parcel.
Halverson said that P&Z had already decided that there could be no leasing on the site and that Great Lakes Stone had agreed to leave by June 30, 2007.
Strom said that a judge will want to see that all legal procedures have been followed, and he agreed with Musick that another P&Z meeting should be held before the case goes to court. P&Z did not follow proper procedures on 10/18/06 because, although the motion was to leave the wording of the CUP the same (implying no subletting), there was no statement that Lipes were in violation of their CUP. At the time, the issue seemed moot because it was assumed that Great Lakes Stone would leave by 6/30/07.
Mears also expressed concern about an industrial park on the southwest 10-acre parcel. He pointed out that the Town Board of Supervisors cannot issue variances for the northeast 10-acre parcel.
Musick also stated that the Town Board cannot act on a P&Z issue, although there is a process to appeal a P&Z decision to the Town Board. He expressed concern that the proposed residential parcels are not lots of record. He suggested that the Town Board give some direction to P&Z for action.
Larson suggested that attorney Strom draw up an outline for P&Z to follow in their hearing of the issue. According to the zoning ordinance (p. 106, Section 5), the process should be initiated by Mears who determines that the owner is not in compliance and refers the matter to P&Z for action. Mears said there is probably noncompliance and the matter should go to P&Z.
Ostazeski said that the matter seems to have escalated from a simple question of whether Lipes can lease part of their property.
Musick reiterated that P&Z must revisit the issue of the presence of Great Lakes Stone on the property. Mears also said that P&Z must clarify the CUP. He believes that each business must have its own CUP to operate legally. Lipe disagrees.
Overom said that a public hearing resulting in action to force out Great Lakes Stone would result in court action. He asked the Town Board to give some direction to P&Z and the Board of Adjustment to consider Lipe’s compromise proposal.
Motion by Halverson: The Board of Supervisors accepts the advice of attorney Strom to follow all steps outlined in the zoning ordinance when a new public hearing is conducted by the Planning and Zoning Commission. Second by Campbell. Attorney Strom suggested that the motion include reference to Article VIII, Section 5, of the Lakewood Zoning Ordinance, and he also asked that the motion be amended to include that he be retained to work with the Commission at its meetings to ensure that all legal procedures are followed. These amendments were accepted by Halverson. Larson asked that the motion be amended to include actual reference to the Lipe Bros. Construction Co. CUP, and this amendment was also accepted. The final motion was the following:
The Lakewood Town Board of Supervisors will retain attorney Tim Strom to work with the Lakewood Planning and Zoning Commission to be sure that all procedures in Article VIII, Section 5, of the Lakewood Zoning Ordinance are followed when a new public hearing is held in the matter of the Lipe Bros. Construction Co. Conditional Use Permit.
The motion passed unanimously.
Wolfe asks for clarification and is told that Strom will work with Mears and P&Z to see that all proper steps are followed.
Motion to adjourn by Larson, second by Halverson. Meeting adjourned at 9:18 PM.
Respectfully submitted,
David Gerhart
Town of Lakewood Deputy Clerk