Approved minutes
Lakewood Planning and Zoning Commission Public Hearing
(Hearing recessed from 9/25/07)
Tuesday, October 23, 2007, at 7:00 PM
Lakewood Town Hall
The purpose of the public hearing was to continue the recessed public hearing from 9/25/07 regarding the conditional use permit (CUP) for Lipe Bros. Construction.
Call to order: Planning and Zoning Commission chair Bob Wolfe called the recessed Public Hearing for the Lipe Bros. Construction CUP to order at 7:05 PM on October 23, 2007, at the Lakewood Town Hall.
Present: Chair Bob Wolfe, Town Attorney Tim Strom, Inese Holte, Chris Roningen, Robin Downs, Kerry Leider, Peter Miller, Zoning Administrator Brennan Mears, and Recorder David Gerhart. Town Board members Phil Halverson and Chuck Campbell, Lipe Bros. attorneys Shawn Reed and Steve Overom, and members of the public were in the audience (see attached register).
Chair Wolfe brought three documents to the attention of those present: 1) the memorandum from Maki and Overom entitled “Re: Lipe Brothers Construction, Inc., Conditional Use Permit Matters, Our File No.: 94-06215” dated October 19, 2007, 2) the memorandum from Town attorney Tim Strom entitled “Re: Lipe Brothers: MUNS-4 Lot Coverage Percentage Requirement” also dated October 19, 2007, and 3) the revised “Findings, Conclusion, and Order” document prepared by Strom. He noted changes that were made to the latter document on pages 1, 17, 19, 20, 21, and 25. Please refer to the documents attached to the official minutes of the meeting.
Wolfe then proceeded with discussion of the conditions to be attached to the revised CUP. These are listed on page 25 of the revised “Findings, Conclusion, and Order.”
Condition #1: USE PERMITTED. Regarding the definition of a construction contractor business, attorney Strom said that he was unable to come up with an adequate definition of a business that engaged only in “light” construction, although there were several relevant definitions in legal documents from Georgia and other states. He thought that prohibiting particular activities might be preferable to trying to define the Lipe business as it is currently operating. Commission members proceeded with a discussion of this issue.
Holte wanted to know if we could prohibit building highways and other activities. Wolfe said that we can limit traffic, noise, operating hours, etc., and that the Commission could limit Lipe Bros. to activities that were occurring when the CUP was first issued. Strom suggested that the Commission may want to include wording that says that the Commission reserves the right to review issues such as traffic and noise.
Leider was concerned that, by the time complaints from neighbors are heard, the offending activities have already proceeded to the point that they cannot be stopped. He suggested an annual review in the form of a letter to neighboring residents to see if they have concerns about the business.
Miller said that the Commission should at least give future zoning commissions guidance regarding what the present Commission believes are allowable activities on the site. He suggested that “routine” large scale construction, such as construction of highways, bridges, etc., not be allowed. Wolfe said that the intent of the restrictions is to focus on building construction. Downs said that many big trucks on Township roads might be an example of an objectionable activity. Leider asked, “What about high rise buildings and hotels?”
Holte was concerned that, because the CUP runs with the land, the language must be crafted so that it applies to future owners of the property as well as Lipe Bros.
Reed asked whether the Commission has the authority to make these restrictions, and he also maintained that a definition is not needed because the issues can be addressed by limiting hours of operation and noise and by requiring screening. Miller countered that the conditions currently do not include specific restrictions on noise, etc., and that therefore the Commission must be specific about what is not allowed. Holte agreed with Miller. Mears said that addressing the % coverage of the lot may help to restrict the uses that can occur there. Wolfe said that there seems to be a consensus that some sort of definition of allowable or prohibited activities is needed.
Miller then proposed changes in the wording for condition #1 that was subsequently modified to read as follows (with attorney Strom to draft the final wording): “Construction contractor business” means an individual or business who provides the design, planning, construction, erection, alteration, repair, maintenance, movement, demolition, or excavation of buildings and structures, or other developments or improvements to land related to such buildings and structures. This definition does not include routine large scale projects such as highways, roads, streets, and bridges. (This sentence would replace the second sentence of condition #1.)
Some of the discussion that led to this definition included the following: Lipe Bros. attorneys expressed concern that the company does a lot of subcontracting that does not occur on the property. Downs thought that the Commission must address what goes on the property and should not restrict the type of jobs that the company does. Miller said that there is no airtight definition, but that a definition is needed that restricts the work to building-related activities. Leider said that the Commission must define what the business is now, which does not include street and road construction. Wolfe also supported the need for a definition. Holte again expressed concern that a new business could come in, and that without a good definition, the activities of this business could not be controlled. Finally, to address the issue of subcontracting, the original wording in Miller’s proposal that mentioned “high rise” buildings was stricken and the definition was broadened to include all structures.
Condition #2: RENTING OR LEASING. A change in wording proposed by Holte was adopted. This changed the phrase “as so defined” to “as defined in Special Condition #1.”
Condition #3: LOT COVERAGE. The memoranda from Strom and Reed were discussed. Strom said that the Commission cannot change the coverage from the 10% allowed in MUNS4. However, the question is whether the current coverage can be allowed as a pre-existing use. Strom also pointed out that, according to our Ordinance, a non-conformity cannot be expanded or enlarged. This raises the question of what the lot coverage was at the time the business was grandfathered in.
Holte believed that the current coverage would be grandfathered in, but raised the question of what would happen if fire destroyed more than 50% of any of the current structures. Would the coverage occupied by that structure then be lost to the parcel owner? Roningen said that the original coverage of the junkyard was essentially 100% and supported an allowance of at least 25% coverage in the current conditions for the permit. Leider also felt, based on the property’s history, that a coverage of 25% could be allowed for the current non-conforming use. Miller noted that a coverage of 25% is currently allowed in industrial and commercial zones, but he also said that the allowable coverage should not be expanded above the current use. Mears said that the current coverage is approximately 4 acres or about 20%.
Wolfe pointed out that the grandfathered activity was a salvage yard, not a construction business, and that the Commission has the obligation to define how a new business fits on the property. Strom said that the 10% requirement in MUNS4 does not relate to use. He also wanted to know when the lot coverage requirement first appeared in the Lakewood Zoning Ordinance.
There was some discussion of the current definition of Lot Coverage in the Ordinance. Wolfe said that the current lot coverage includes storage and salvage. The inclusion of “altered surfaces” in the definition was thought to be unclear. This led to discussion of whether simply placing an item, such as a junk car or pile of lumber in a particular place created an altered surface. Roningen argued that, in the original salvage yard, it was the roads or paths between the cars that altered the surface and not the cars themselves.
Wolfe noted that the current coverage differs on the two ten-acre parcels and suggested that the wording must address how any lot coverage requirement relates to the two distinct parcels. Mears noted that the CUP is for the entire 20 acres. Leider was concerned about the total coverage if a portion of the property was subdivided or sold. Several members expressed the view that the CUP would be void if any portion of the 20-acre property was sold.
Strom said that the 10% coverage requirement can be exceeded if there is a lawful non-conforming use, and that non-conforming use means a use that existed prior to ordinance requirements banning such use. He wanted to know how lot coverage was defined in the Ordinance in the years 1999-2000 at the time the Lipe Bros. CUP was granted. Miller said that lot coverage was at least as much in the past as it is now.
Mears presented information from past Lakewood zoning ordinances. In the 1978 ordinance, no lot coverage was specified. In the 1983 ordinance, the lot coverage in the AR zone (equivalent to the current MUNS4) was 4% and was defined as all structures, parking areas, loading areas, and similarly altered ground surfaces. The 1991 ordinance had similar requirements to the 1983 ordinance, although the lot size had increased to 4.8 acres. In the 1998 ordinance, the AR zone was changed to MUNS4 and the lot coverage was increased to 10%. Mears also presented an aerial photo of the Lipe property that was taken in 1991 or 1992.
Previous court cases involving the property were discussed. According to Holte, in one case, Lakewood claimed that Marty Clark’s operation of a junkyard was illegal because the use had lapsed. However, a judge said that because Lakewood had granted a building permit, the use was allowed.
Strom stressed the need for any decisions by the Commission to be supported by a record of evidence. He said that the question to be resolved is what amount of lot coverage is grandfathered in as a non-conforming use. Wolfe asked if we were setting lot coverage requirements for a construction business or for a construction business plus a salvage yard. He said that the original CUP had no restriction on the junkyard and that we are setting the coverage requirement for a construction business. Furthermore, the Commission should limit the size of the construction business because there was a violation of the CUP related to the construction company.
Miller wanted to know if we can strike the salvage yard as a permitted use because it has been inactive for some time. However, Lipe’s attorneys said that the salvage business remains active, even if it is not a junkyard for automobiles. Holte said there is no proof of this.
Overom maintained that there is a grandfathered lot coverage, as well as a grandfathered use. Leider wanted to know when a grandfathered lot coverage would be lost. Miller replied that our ordinance states that a grandfathered non-conforming use shall not be re-established if relinquished for more than 12 months. He also expressed the opinion that if grandfathered lot coverage is relinquished, it is also lost. Strom agreed, but noted that the Ordinance has other complicating provisions that apply to salvage yards. Overom cited Article VIII, Section 11.02, of the current Zoning Ordinance that deals with “Inactive Permits.”
Wolfe asked for direction from Strom. Strom made three points: 1) Controlling lot coverage is a means of controlling the scope of the activities on the property; 2) When considering lot coverage that is grandfathered in, the area grandfathered is a specific area of the property; and 3) Because there are two ten-acre parcels involved, care must be taken in describing lot coverage; that is, a non-conformity existing on one parcel cannot be applied to another parcel. Overom countered that the CUP applies to all 20 acres.
Motion by Miller to accept the language as written in Condition #3, subject to legal review by Strom. Second by Leider.
Discussion: Miller said that we have evidence to support the 25% lot coverage restriction. Downs wanted to know if the area occupied by Great Lakes Stone should be included in the description of the current lot coverage. Mears said that that area has been part of the use in the past.
Wolfe returned to the point about the two ten-acre parcels. If Lipe sells the upper parcel, then there is 50% coverage on the lower parcel. Holte said she prefers to reference the “existing footprint” of the business. Strom agreed, saying the Commission should specify exactly where the use is allowed and that he prefers some form of the “footprint” idea to simply specifying 25% coverage. However, there should be evidence that the existing footprint coincides with the lawful non-conforming use. The footprint idea does solve the problem of specifying where the use is allowed. He also pointed out that the current motion would allow 25% coverage anywhere on the property the owner of the business wishes to locate his activities. The term “footprint” might be vague because of the history of the property’s use. If the term “footprint” is used, it must be supported by evidence.
Strom also suggested that Lipe’s attorneys visit the property with Mears and give justification for their interpretation of the non-conforming use and lot coverage. Mears said that Lipe has expressed satisfaction with the current size of his business and that he (Lipe) was not asking for more than he already has.
Wolfe called for a vote on the motion, but Strom said that he continued to be troubled because 25% lot coverage may not correspond to the extent of the non-conforming use. He repeated that he thought it would be wiser to have Lipe’s attorneys present their case for their interpretation of the non-conforming use and lot coverage. Their view should be heard by the Commission and compared with Mears’ view. Overom said that Lipe wanted to resolve the issue out of court. Mear’s said that a non-conforming use cannot be enlarged.
The motion by Miller (above) carried 3-2 with Holte and Downs dissenting.
Motion by Miller to have Mears work with Attorney Strom as well as with Lipe and his attorneys to develop additional information about the presence and extent of the non-conforming uses and lot coverage on the property. Second by Downs. Motion carried unanimously.
Motion by Leider to recess the CUP hearing until Tuesday, October 30, 2007, which is the next regular meeting. Second by Roningen. Because the CUP hearing will likely not receive much attention on October 30, an additional date of November 13, 2007, was set to continue the hearing. Motion, as amended, carried unanimously. The public hearing was recessed at 10:45 PM.
The next regularly scheduled Planning and Zoning meeting is Tuesday October 30, 2007.
Respectfully submitted,
David Gerhart