Lakewood Board of Supervisors Special Meeting
January 31, 2008
Special meeting on appeal by Lipe Bros. Construction on review of conditional use permit
Call to Order: Chair of the Lakewood Board of Supervisors Tim Musick called the special meeting to order at 7:00 p.m. on January 31, 2008 at the Lakewood Town Hall.
Present: Supervisors: Tim Musick, Phil Halverson, Chuck Campbell, Shannon Ostazeski, and Jerry Larson, Clerk Gene Bromenshenkel, Attorneys Tim Strom and Shawn Reed, Jerry Lipe of Lipe Bros. Constr. and general public (register attached).
Purpose of the Meeting: Chair Musick outlined the purpose of the meeting---to hear an appeal from Lipe Bros. Construction Co. on the revised conditional use permit issued by the Lakewood Planning and Zoning Commission on December 18, 2007.
Musick indicated that the process may take a bit of time and it is possible the Board of Supervisors may need to recess due to necessity of more time to review and make a decision on the appeal.
Musick outlined a brief chronology of the process that brought everyone to this meeting.
Chair Musick asked the Board about the interest in voting on each of the items listed in the appeal (14). He obtained a consensus of agreement to do this.
Musick outlined the process and timetable of the conditional use permit being obtained by Lipe’s on April 3, 2001 and the dates of reviews of the CUP that followed during 2006 and 2007.
Musick advised the Town Board members that their role involves determination of accuracy, fairness and impartiality in reviewing the decision made by the Planning and Zoning Commission for revising this conditional use permit for which the property is located in the MUNS-4 zone.
Shawn Reed Presentation on behalf of Lipe’s:
He mentioned a couple points of chronology: there was a gap in Musick’s time table. He indicated this is the 35th meeting at which the Lipe conditional use permit was discussed. In May of 2001, the question of subletting was raised. He cited Attorney Strom’s memo to the Board that the Zoning Ordinance was not clear on this matter. In October of 2002, the question of truck storage and rental was raised on the Lipe property and again in December of 2002, and no action was taken by the Board. Reed indicated that the Lipe’s have always understood that renting out space on their property to other businesses was allowed.
Reed indicated the reason they are here is because Lipe’s feel they have always been doing the right thing. Reed cited that in October of 2006, there was no action by the Planning and Zoning Commission to indicate to Great Lakes Stone that they had to vacate the premises on the Lipe property.
Reed: There is no record of process for this appeal. After the appeal was filed, there is no delineated or defined process.
Strom: The Zoning Ordinance does not define a specific process. The Supreme Court has ruled that two items are necessary in such a process: 1) that public notice is given and 2) that a reasonable opportunity is given to reply.
Reed: Requests that his client’s rights be respected. He referred to comments made by the Chair of the Board at the January 9, 2008 Board of Supervisors meeting.
Musick: Apologized if his comments were taken as offensive, they were not meant to be offensive to the appellant.
Reed: Cited that Supervisor Halverson has been present at many meetings (including the Planning and Zoning Commission meetings) and has spoken with the chair of the Planning and Zoning Commission about the situation a number of times; is he prepared to be neutral during these deliberations. Halverson responded, yes. Also, Reed relayed this question to Supervisor Larson who responded, yes he will respect neutrality.
Reed: a preliminary matter---on late approval of the planning and Zoning Commission minutes for the eight public hearings held. He has not received a copy as of yet. (Note: The Planning and Zoning Commission approved the minutes of the eight hearings two days prior to this date and the minutes were prepared by the recorder one day ago from today). Reed feels that the approval of the minutes at the late date when there is an appeal process in action is questionable and objects to the process. The Clerk informed the Board and Mr. Reed that the planning and zoning Recorder sent the 1-29-08 approved minutes of the Commission electronically to attorney’s Reed and Strom on the afternoon of 1-30-08.
Chair Musick asked Bob Wolfe, Chair of the Planning and Zoning Commission if he felt thee were substantive changes in the amendment of the minutes of the public hearings held from August through December of 2007. Bob Wolfe indicated there were no changes to meanings or intents of the Commission; there were typos and wordings that were omissions; none of which changed the meanings.
Attorney Strom presented a copy of the 1-29-08 Commission minutes which contained the changes in the public hearing minutes; to Reed at 7:39 p.m. This is the copy that was mailed to Reed and Strom on 1-30-08.
Reed: A clarification is requested of Musick. Is it the intention to hear public comment on each item of the appeal following his (Reed’s) presentation?
Musick: Yes, will hear public comments on each item.
Appeal Item #I: Appellants are in Compliance with CUP dated April 3, 2001.
- The property has been grandfathered in as an existing salvage yard.
- The appellant pays commercial property taxes.
- The MUNS-4 zone allows for construction, storage, office, and equipment.
At the time the CUP was granted, Lipe’s were sub-letting and that it was open and conspicuous to the public.
There was no action taken by the Township between April 3, 2001 and the time of recording the CUP in August of 2001 to indicate that renting of property was not allowed.
There was no action taken by the Township during 2001 and 2002 to indicate to Lipe’s that there was any problem with renting out of property.
Reed: Nothing happened for four years. Great Lakes Stone moved in 2003 and operated openly until 2006 when an inquiry was made about dividing the Lipe property. The CUP indicated that the allowance is for construction. Lipe’s is a construction company, Timberland roofing was a construction company and Johnston Masonry is a construction company. Johnston masonry and Great Lakes Stone are owned by the same company. Other contractors in the township store concrete materials on their property.
Reed: The conditional use permit was granted for construction uses on the property. Johnston/Great Lakes is a construction company; then the Planning and Zoning Commission made an error.
Reed: There has been no public concern raised regarding safety, nuisance, or a problem for the public.
Attorney Strom: One of the things to keep in mind is whether or not there is a violation of the conditional use permit. The Planning and Zoning Commission found there was a violation: 1) Great Lakes Stone is not a like construction business. 2) Presence of more than one business on property is a violation of the CUP.
Strom: On question of whether or not Great Lakes Stone is the type of business allowed under a construction CUP? The Planning and Zoning Commission wrote---that Massie and Lipe described the nature of the business i.e. It (GLS) sells product to construction businesses but does not do construction. They also cited that GLS is not a salvage yard and not a construction/contracting business.
Strom: On second question---the presence of more than one would violate the CUP issued in 2001. The language in the CUP was for “A” construction, storage, shop and office. The intent of the CUP was clearly identified as for one construction company (Lipe Brothers). The intent of the Commission was to allow for one business.
Comments from Public:
- Don Putnam---When Marty Clark was on property, he operated four businesses on the property.
- Dean Lipe---He is an employee of Lipe Bros and cited that Halverson’s comments were out of order at this time. A salvage yard is commercial. When a car is taken in it is also stored for a period. Great Lakes Stone stores stone and then sells it. If there has never been any complaints, then why are we doing this?
- Jim Rich---Is curious-is involved with four municipalities, permits go with the land. How can you dissect a site plan after the fact?
- Bill King---On question of whether or not Great Lakes Stone is an appropriate use, it is apparent that a contractor will always sell something on site. The substance of what was taking place on the property is minimal and not an important segment (that some retail is sold on the property). Does not the property have the right to store junked cars? The substance over form begs to be considered.
- Dean Lipe---We wouldn’t be here today if Johnston Masonry does not have the name of Great Lakes Stone.
- Inese Holte---Was chair of the Planning and Zoning Commission when the conditional use permit was issued in 2001. No one wanted to shut the business down in April, 2001 after it had been in business for at least half a year. On the legal notification, which follows the application, there was no mention of more than one business.
- Steve Kaski---Is this knit-picking or jealousy of Lipe’s success?
- Don Putnam---When the situation was known four years ago, it should have been done then.
- Stan Granger---It’s time to stop. Quit wasting money.
Reed: Clarified process.
Chair Musick: Do Board members have any questions on Item #I thus far?
Supervisor Ostazeski: To Inese Holte. Why were attorney’s comments not included with the issuance of the conditional use permit?
Holte: The CUP was written on the Public Hearing date.
Supervisor Campbell: During the public hearings in 2007, it was first known that Johnston Masonry was on the Lipe property. When (to Shawn Reed) was Johnston Masonry first on the property?
Reed: Great Lakes Stone and Johnston Masonry are related entities.
Attorney Strom: Cited that the Commission discussed the distinction between Great Lakes Stone and Johnston Masonry who had been occupying the property since 2003. Strom cited references made by the Planning and Zoning Commission that Great Lakes Stone is not allowed in the MUNS-4 zone as a land use.
Strom: Likened the proceedings to judicial, meaning that Board members can participate in any and all discussions.
Reed: Raises point about Mr. Strom’s comment related to liking Great Lakes Stone to a Menards or Home Depot. Feels this is not a reasonable comparison.
Reed: This is form over substance. Retail sales are a small portion of the Great Lakes Stone business.
Reed: The Planning and Zoning Commission gave no consideration to the area in which Lipe Construction is located. There are numerous businesses up and down Jean Duluth Road. Another point---there has been concern raised over Lipe’s creating an industrial park. There is no such intention. The property is cleaned up and in better condition than in the past.
Reed: The final conclusion of the Planning and Zoning Commission is to allow rental on the property. The conditional use permit never defined that renting was not allowed. Renting was not clarified in the original use of the conditional use permit. The CUP was not recorded until August, during which time, the Town had ample time to take action on the rental question. He recommends to the Board that they find Lipe Brothers Construction in compliance of the conditional use permit granted in 2001.
Board of Supervisors Comments:
Supervisor Halverson: Hears comments on form over substance. In reviewing minutes of the Commission and Attorney Strom’s advice, he feels that the big concern is the size of business. The original CUP referred to a singular business. Question about what leeway the CUP allows for growth. His understanding is that the CUP would allow for growth but the Commission does not favor an industrial park growth concept. The Commission in final determination did not limit rentals but rather the size of operations on the property. The Planning and Zoning Commission determined that Great Lakes Stone is not a construction business. If building supply businesses are allowed in the MUNS-4, it would open the zone up to very different uses than those intended. Two points: 1) the Town cannot grant a conditional use permit for a use which is not allowed by the Ordinance and 2) the size should be limited in a MUNS-4 and he supports the findings of the Commission.
Attorney Reed: Would like to comment following Halverson’s comments—believes there is a mis-characterization of points. Halverson---The discussion about Great Lakes Stone is that it is not a construction business.
Supervisor Ostazeski: The Planning and Zoning Commission went through considerable effort, they are citizens trying to do the best; Lipe is trying to do the best. Can see why we’re in this mess. Feels that what matters is what’s stated in the conditional use permit---feels that Lipe is in compliance as there was vagueness in the issuing of the CUP. Feels that this should not pervade any other areas of the MUNS-4 zone; this is a special situation. Feels that if Lipe's and Great Lakes Stone remain there, there will not be negative effects on the township. Feels that activities on the property are within the scope of the CUP document.
Supervisor Campbell: Doesn’t feel there is any maliciousness on any one’s part. Doesn’t feel activities currently on site are out of line in a MUNS-4 zone. It however, is not a commercial zone. Has concern about going beyond a singular business.
Supervisor Musick: Have a Zoning Ordinance in the township and for the Zoning Administrator and Planning and Zoning Commission to enforce it when needed. The language in the revised conditional use permit indicates business as plural; ultimately trying to limit size to comply with the regulation for the zone. The Town is interested in resolving issues and doesn’t see that coming from Lipe’s. There is a real concern about growth to an industrial park in a MUNS-4 zone.
Attorney Reed: Did not make comments regarding additional buildings but rather wants to clarify that he made the note that other tools such as zoning permits will control size and development. Does not support the notion that if Lipe’s are allowed to grow and do certain things, then others will do it in a MUNS-4. Wants to stop the perception that by allowing Lipe’s to do business on the unique piece of property, will affect what will happen throughout the MUNS-4 zone.
Supervisor Halverson: Thought this part of the meetings is where Board members discuss the matter at hand. The Planning and Zoning Commission listened to Lipe’s, allowed businesses but determined that a conditional use permit could not allow an unrelated use on the property. Feels that the findings of the Commission are conclusive to him.
Attorney Reed: Would like to respond to one of Mr. Musick’s points---about the township trying to work with his client but Lipe’s are not. Objects to this point. The point the Board needs to be concerned with-what is the impact to the surrounding area. Feels the Planning and Zoning Commission did not look at this aspect.
Motion by Halverson that the Board of Supervisors supports the findings of the Planning and Zoning Commission and that Lipe Brothers Construction is in violation of the conditional use permit as issued in April of 2001 as per appeal item # I. Second by Campbell. Discussion on Motion: We are acting in a judicial capacity. There is room for confusion. Can see how there were various interpretations. The conditional use permit was written too vague to drag on further. Town has had no major complaints from the public. In looking at issue from a distance or broader picture, there is letter of substance to debate. The issue is not hat big of a deal. Supervisor Campbell: When we talk about property rights—need to define for whom. We all have a right to be protected by the Comprehensive Land Use Plan. Doesn’t like idea of property rights without talking about the community’s rights. Also of concern---being the issue is not clear cut, the Board should have concern about some details. Cannot agree about the violation.
Jerry Lipe: How many times did you drive by a commercial salvage yard on the way to purchase your property? The business has always been there. Halverson: The business activity of the conditional use permit allows the property owners to run on the largest footprint ever.
Attorney Reed: The issue of the original conditional use permit granted versus that of the revision is not being followed. Ostazeski: Have a motion on the table on the initial CUP. Larson: We have focused on the original CUP---item #I. Supports following the Zoning Ordinance of the township. Has not said that the Ordinance shouldn’t change or that people should not participate. Ostazeski: Feels the CUP has been followed. Doesn’t feel that we should put such heavy emphasis on the language of the CUP which was written vaguely.
Attorney Reed: The Planning and Zoning Commission has to determine if a use fits an area, impacts on the area. There have not been any complaints on these items. Jan Lipe: When we filed for the conditional use permit, the application language was not clearly specific in meaning singular construction business. Ostazeski: Town should have written one; that is what is intended. Everyone intended well—all are volunteers striving to write language.
At this time, the Chair called for a vote on the Motion: Two votes were cast in favor of the motion, two as naye (against motion). The Chair of the Board voted in the affirmative. The Motion passed by 3-2 in favor.
Motion by Larson to adjourn the meeting at 10:07 p.m. Second by Campbell. Motion by Larson to withdraw the Motion. Agreed to by Campbell to withdraw Motion. Motion Carried.
Motion by Halverson at 10:11 p.m. to recess the meeting to Monday, February 4, 2008 at 7:00 p.m. Second by Campbell. Motion Carried.
Respectfully Submitted;
Gene Bromenshenkel
Town of Lakewood Clerk