Lakewood Planning and Zoning Commission Meeting
Tuesday, August 1, 2006 at 7:00 p.m.
Lakewood Town Hall
Call to order: Commission Chair of the Planning and Zoning Commission, Bob Wolfe called the Public Hearing to order at 7:05 P.M.
Present: Chair Wolfe, Phil Halverson, Dick Bodine, Al Eastman, Chris Roningen, John Knutson, Recorder Shannon Ostazeski, Zoning Administrator Brennan Mears, and public (see attached registrar).
Pledge of Allegiance: The Pledge of Allegiance to the flag of the United States of America was recited by all present.
Meeting Regarding the Performance Bond for Conditional Use permit applicant Greg Follmer. We are having the rehearing because following the public hearing the applicant claimed he would be unable to meet the final condition. Condition number seven of the July 25, 2006 hearing required the applicant to find a bonding company that would insure the potential takedown of his tower if it were no longer being used for the purposes of a Commercial Communications Tower as defined by our Ordinance.
For this meeting we will be operating under the original application. We will follow the rehearing procedure as stated in our Ordinance Section 9.03. Process as follows:
Staff Report
Applicant Testimony
Those in Favor
Those Opposed
Other Evidence
I. Staff Report
Brennan Mears: Talked to Zurick International (bonding company) the representative stated that a performance bond without a specific date doesn’t exist. After asking him what he would do he mentioned irreversible lines of credit. The Township would be the third person beneficiary in the contract along with the bank and the applicant. The bank would be the only party who could cancel the contract and in which case they would give us notification well in advance.
Halverson: If there is a lapse the risk holder (Follmer) will have to take it down in a short time frame. He has to come up with a new letter of credit or the existing grantor takes down the tower.
Wolfe: What if Follmer sells it to another party?
Mears: If we make it a conditional use on the permit then it goes with the land.
Eastman: I appreciate having the meeting when Follmer is here. That land will always be worth more than the cost of taking down that tower. There is not better security than having a lean against his property. It would be on his title at the courthouse.
Eastman: It must be a confirming lot if he decides to sell.
Halverson: Another option would be an escrow account.
Follmer: A lean would be a good option that I would consider.
Roningen: We won’t have to deal with expiration dates with a lean.
Halverson: The lot needs to meet the requirements of our ordinance. The current rules require 5 acres with 200 feet of frontage and road access. Does this go to cleaning up the electronics or just taking down the tower?
Mears: It should say to clean up a commercial telecommunications tower. And that would be defined as including all that it says in our current zoning ordinance.
John Knutson left at 7:30 p.m.
Mears: If a company leaves do they take their equipment?
Follmer: We are building the tower so it is different. If it were their equipment they would take what is theirs and clean it up to 1 foot below the original grade level.
Halverson: That is solid fill underground. That is a big rock.
Follmer: You just want the tower and other items above ground.
Bodine: The only agreement you can have is for their equipment removal?
Follmer: Yes.
Halverson: Who will pay for the attorney fees?
Follmer: We will make up the lean and your attorney can review it.
Mears: If we do the lean and Follmer sells the land we can go after whoever owns it.
Wolfe: It seems that an escrow account would be a lot cleaner.
Mears: He doesn’t need to have the lean papers written up now. This would be a condition.
Halverson: There is no statutory lean in this situation; we need to make up a lean. We need to have a legal opinion and who is going to pay the fee?
Eastman: It would all be in the buyer’s expense.
Campbell (audience): The best thing for the township would be to have an escrow account. If we want to be sure we will not have to take this down or pay for all expenses.
Follmer: We are willing to put it in writing and we will agree to what Eastman has suggested.
Eastman: If we are dealing with credit it could be up in the air whereas the land will always have its value. A lean is a good option.
Palmer (in audience): Could we have some middle ground, an escrow and a lean?
Wolfe: If we are stuck with the property we still have to take the tower down. An escrow would allow us to take it down. Then we can deal with the time frame window.
Eastman: The disadvantage of that would be the property buyer would have to pay off that escrow as part of the purchase agreement. It would be more work tying the two together would have to take on the escrow account.
Follmer: I will not agree to do both.
Wolfe: Are other people uncomfortable with the township paying for the removal of the tower to meet the Fish and Wildlife regulations?
Roningen: Those are just guidelines.
Halverson: It really comes down to how much risk are we willing to take so that Follmer can make a business venture.
Eastman: I feel like Follmer is providing a service to this township and he is willing to put in writing that it will be held to the removal if need be.
Mears: It is a perfecting lean.
Halverson: We need to make it a condition that he pay the legal expenses.
Motion by Eastman The tower shall be built on a plot of land no less than 5 acres which meets the Township zoning requirements of frontage and lot access as defined in the current Zoning Ordinance. The township will establish a perfected lean against the above property providing that the township may foreclose on the lean and use the proceed to remove the Commercial Communication Tower. The permit applicant will pay the reasonable attorney fees of the township for establishment and perfecting of the lean. The landowner agrees if a Commercial Communication Tower as defined in the Lakewood zoning ordinance at the time of the permit being filed (identical to the St. Louis County Ordinance) is not removed within 12 months after the tower is no longer being used for the purpose stated in this conditional use permit, the township may foreclose on its lean, and sell the property and use the proceeds to remove the Commercial Communications Tower and other legal fees incurred in the process. Before construction commences the township must receive opinion from its legal council that the lean will provide the protection intended by this condition. Motion withdrawn by Eastman it is no longer his motion.
Motion by Eastman that we remove condition 7 from the June 20th meeting. Seconded by Chris.
Eastman: Once we get rid of that condition then we can write something that they the landowners can agree to.
Campbell (audience): This meeting was for clarification of the condition.
Eastman: Our options in the Zoning Ordinance include reversing the decision.
Halverson: You don’t get rid of the protection until you have some other protection.
Vote: 3-2. Motion passes.
Bodine: Don’t they make leans after the fact?
Halverson: We don’t have any statutory rules to protect us. Up front we have to file this lean in proper form.
Eastman: The landowner agrees that in the event of vacation we could apply and enforce a lean.
Halverson: Mears said we have to file it ahead of time. An unperfected lean with a bankruptcy there would be no recourse for the township.
Mears: We don’t have the authority to disperse money in the township.
Wolfe: I would like more protection.
Motion by Wolfe that the tower shall be built on a plot of land no less than 5 acres which meets the Township zoning requirements of frontage and lot access as defined in the current Zoning Ordinance. The Commercial Communication Tower as defined shall be removed within a year after it is no longer used for the purpose stated in this conditional use permit. The owner of this property shall be primarily liable for removal of the Commercial Communications Tower. Before construction may commence, the township shall have received from its attorney an opinion indicating that the township is protected by a lean against the property permitting the township to foreclose in the even the landowner does not remove the tower within said year. Pursuant to the lean the Township may take ownership to the property and all or certain of the improvements to the property, and sell this ownership interest for the purpose of financing the removal of the Commercial Communication Tower as defined in the Township Ordinance in effect at the time this land use permit was applied for (the township ordinance is identical to the St. Louis County Ordinance) and pay all township expenses related to this. The permit applicant will pay the reasonable attorney fees of the township for establishing the lean and obtaining the attorney’s opinion referenced above. Seconded by Halverson.
Vote to Wolfe motion. Motion fails 5-0.
Motion by Wolfe that the tower shall be built on a plot of land no less than 5 acres which meets the Township zoning requirements of frontage and lot access as defined in the current Zoning Ordinance. The Commercial Communication Tower as defined in the Township Ordinance in effect at the time this land use permit was applied for (the township ordinance is identical to the St. Louis County Ordinance) shall be removed within a year after it is no longer used for the purpose stated in this conditional use permit. The owner of this property shall be primarily liable for removal of the Commercial Communication Tower. Before construction may commence, the township shall have received from its attorney an opinion indicating that the township is protected by a lean against the property or by other legal means permitting the township to foreclose on the property in the event the landowner does not remove the tower within said year. Pursuant to the lean or other legal means the Township must be able to take ownership to the property and all or certain of the improvements to the property and its road access, and sell this ownership interest for the purpose of financing the removal of the Commercial Communication Tower as defined and pay all township expenses related to this. The permit applicant will pay the reasonable attorney fees of the township for establishing the lean if needed and obtaining the attorney’s opinion referenced above. Seconded by Eastman.
Follmer: We will not make a lean before hand.
Halverson: We need to have our lean in because we will not be protected in any way if it falls through.
Roningen: I think we are establishing bad precedence. People will have to get a lean to make certain structures. That is a slippery slope. The second thing I disagree with is having the applicants pay our legal fees ahead of time. I think both of these are wrong.
Halverson: This is a tower. It is different
Roningen: The applicant said he would take it down. This property will not sell with a lean like that on it. We are establishing bad precedence.
Vote on Wolfe’s Motion: Motion fails 3-2
Halverson: When does our 60 day extension expire?
Mears: August 29th, 2006.
Motion by Roningen we add as a condition #7 that the landowner agrees that within 12 months of the tower no longer being used for the purpose it was intended the landowner will remove the tower and he will agree that there will be lien against that property. Seconded by Eastman.
Mears: You can put a lien against the property but if it is incomplete we lose.
Vote: Motion fails 3-2
Motion by Halverson that The tower shall be built on a plot of land no less than 5 acres which meets the Township zoning requirements of frontage and lot access as defined in the current Zoning Ordinance. The Commercial Communication Tower as defined in the Township Ordinance in effect at the time this land use permit was applied for (the township ordinance is identical to the St. Louis County Ordinance) shall be removed within a year after it is no longer used for the purpose stated in this conditional use permit. The owner of this property shall be primarily liable for removal of the Commercial Communication Tower. Before construction may commence, the township shall have decided whether to request an opinion from its attorney indicating that the township is protected by a lien against the property or by other legal means permitting the township to foreclose on the property in the event the landowner does not remove the tower within said year. If the township requests a legal opinion construction may not commence until an opinion is obtained indicating that pursuant to the lien or other legal means the Township will be able to take ownership to the property and all or certain of the improvements to the property and its road access, and sell this ownership interest for the purpose of financing the removal of the Commercial Communication Tower as defined and pay all township expenses related to this. The permit applicant will pay the reasonable attorney fees for establishment of the lien if needed, or other legal means. Seconded by Bodine.
Vote: Motion Passes 4-1.
Eastman: Is the appeal process for the conditional use expired?
Mears: An extension was granted by the Town Board.
Motion by Bodine to adjourn, Seconded by Eastman. Meeting adjourned at 10:40 p.m.
Respectfully Submitted,
Shannon Ostazeski
Township Recorder