Lakewood Board of Supervisors Meeting
Special Meeting on 3-24-08
Recessed from 3-6-08
Lipe Conditional Use Permit Appeal
Call to Order: Chair Tim Musick called the Special Meeting of the Board of Supervisors, recessed from 3-6-08, to order at 7:00 p.m. on 3-24-08 at the Lakewood Town Hall.
Present: Supervisors Tim Musick, Jerry Larson, Shannon Ostazeski, Chuck Campbell, and Phil Halverson. Also present: Deputy Clerk Gene Bromenshenkel, Attorney Tim Strom, Attorney Shawn Reed and public (attendance register attached).
Purpose of Meeting: To continue with the appeal of Lipe Bros. Construction Company on the revised conditional use permit issued by the Lakewood Planning and Zoning Commission in December of 2007.
Minutes of March 6, 2008 Recessed Meeting: It was agreed by consensus to defer action on the minutes.
Chair Musick outlined the procedure for the Meeting: 1) public comment on presentation thus far, 2) Attorney Strom remarks to Attorney Reeds presentation on 3-6-08 and 3) Reed summary comments and 4) to the Board of Supervisors for consideration and decision making.
Attorney Reed: Raised a concern over the minutes of the Planning and Zoning Commission approval of the hearings leading to the development of the revised conditional use permit. Has issue with the minutes of August 15 and 28, 2008 and November 13, 2008 meetings. Will cover those later.
Public Comment on Appeal:
Al Eastman: Referenced Items 5, 6, 7, and 8 of appeal. A conditional use permit was issued based on the process of the Planning and Zoning Commission. The revised conditional use permit is 32 pages in length. When Eastman was the Zoning Administrator for the Town, there were never any complaints regarding the initial conditional use permit and the business operation at the site. Urges the Board to settle the issue.
Sid Simonson: Need to go back to where the issues started. Lipe came to the township for direction to sell some of the property. It has ended up as an attempt to drive the business out of the township. Need to settle fairly for the township.
Bob James: Don’t like to see rights taken from people. It has been seven months since August. The Supervisors work for us the people of the township.
Jim Anderson: Lives two blocks from Lipe Bros. Construction. The construction business has been an asset to the community---has reduced run-off from the since the property was converted from a junk yard.
Bob Gray: Never has seen an issue go on so long.
Response of Attorney Tim Strom for the Township: Response to Lipe Attorney Shawn Reed presentation on 3-6-08:
On Item 3 under #III:
Zoning actions are to be made within the scope of health, safety and consistent with the Zoning Ordinance. Referred to Reed’s comments on the October, 2006 meeting. Procedurally, the October, 2006 procedures are not relevant; what is relevant is from August 15, 2007 to the present.
Referred to the Planning and Zoning Commission’s decisions to support the Zoning Ordinance definitions and uses allowed in the MUNS-4 zone and to prevent an industrial park which would not be allowed in that zone. He referenced the 2001 original conditional use permit to limit the business in relation to the zone in which the property is located. Strom cited the MUNS-4 definition from the Zoning Ordinance. He also referred to the conditional use permit definition in the Zoning Ordinance. The Ordinance clearly does not allow industrial parks in the township. The Comprehensive Land Use Plan identifies (on page 17), the regulation necessary to prevent land use conflicts between residences and businesses. He indicated that the Planning and Zoning Commission actions were geared toward planning of conditions to make the site compatible with the surrounding area.
Item # V: Strom referenced the two issues of the August 15, 2007 Public Hearing. He refers to the notice to the Commission about determining of violation and what possible actions to take. There were public comments suggesting that the conditional use permit should be revised. Strom cited the Public Hearing of August 15 and 28, 2007. There was input from Lipe’s attorney in the successive staff meetings i.e. the Planning and Zoning Commission meetings following the public hearing phase. Strom noted that Lipe’s through their attorney, had considerable input into the deliberations of the planning and Zoning Commission meetings which followed the public hearings in arriving at the revised conditional use permit on December 18, 2007. The point being----people were allowed to speak and ample opportunity was provided for the public to give input into the decision making process of the Commission.
On the salvage yard issue: The Commission determined that clarification was necessary in the salvage yard use identified in the 2001 conditional use permit; the salvage yard meaning an automobile salvage yard. Was there evidence presented on the salvage yard at the Public Hearings? Strom cited comments made by Lipe in cleaning up autos and tires on the property when they took ownership. He referred to a December 4, 2002 letter from Maki and Overom. The letter referred to an auto salvage and wrecking yard. The Commission followed the court order and evidence of use of the property as an auto salvage yard.
Item #VI: The Planning and Zoning Commission referred to “existing salvage yard” rather than the Ordinance definition, in making its decision on the revised conditional use permit. Strom referenced two definitions in the revised conditional use permit: 1) construction business and 2) business activity area. The purpose of a conditional use permit is to aid in making a use compatible with the surrounding area i.e. to allow it to fit with the surrounding area. Business activity area was enacted to define the area on the 20 acres rather than allow the development of an industrial park area. Strom cited that contractor use and storage is a use allowed in the MUNS-4 zone. The Commission attempted to provide a clearer definition and parameter to the contractor use and storage identified in the Ordinance. Strom cited the revised conditional use permit as clarifying the definition of construction contractor business. The business activity area was defined to provide for the existing Lipe Bros. business to continue with a viable business with limitations on area of use on the property.
Another issue under #VI: The Commission revised the use as a matter which would be applied to any conditional use permit.
Item VII: Referred to the back area on the property; the revised conditional use permit suggests that the property owners could seek a change in the conditional use permit to allow for structures, etc. Referenced the business activity area of one-fourth acre for salvage yard; the trigger is the one-fourth acre to prevent salvage yard activity on any or all of the activity area.
Item #VIII: On influence of two Supervisors on Commission. There is no statute or law suggesting that a Town Supervisors cannot discuss matters with a Planning and Zoning Commission member. On the Commission decision on August 28, 2007, it determined that Great Lakes Stone is not a construction contractor but rather sells products to construction contractors i.e. is a construction supplier.
Strom discussed the reason why the definition of business activity area was developed instead of lot coverage which is much too restrictive (10% lot coverage is allowed in the MUNS-4 zone) for the situation on the property.
The Board agreed by consensus to recess the meeting for a brief period at 8:26 p.m. The meeting was reconvened at 8:42 p.m.
Item #IX: Relates to procedures during Public Hearings and cites Article VIII, section 8.03 of the Zoning Ordinance. Strom indicated there was no applicant as the conditional use permit was a review of the permit, with the question being about the arguments about violation of the conditional use permit. There was no objection at the time regarding cross examination; the procedure of a review does not constitute a witness type situation. Strom indicated that Attorney reed did not seek to question or cross-examine.
Item #X: Regarding Reed’s concern that Lipe’s did not have an opportunity to provide input after August 28, 2007. Strom indicates that the record does not support this.
Item #XI: Written decision of the Planning and Zoning Commission. The findings of fact are about 30 pages with three pages of conditions in addition. Courts require that thee is an explanation in arriving at conclusions. A pattern of the Lipe business was troubling to the Commission since there was a period of business activity since the conditional use permit was issued in 2001. The Commission did not want to revoke the permit altogether. Strom cited a chronological of the conditional use permit being issued in April, 2001 and the activities that were on the site. The Commission had to deal with conflicting evidence.
Item #XII: Refers to Reed’s citing of state statutes 462 and various sections. Reeds comments were: The salvage yard rights are grandfathered. Also about “taking” of property (Statute 117.84). A municipality cannot ask a property owner to get rid of a grandfathered use as barter for other parts of a condition.
Item #XIV: Regarding violation of open meeting law. Reed had cited one instance---circulation of notes among the Planning and Zoning Commission members. An open meeting law violation does not change decisions made. The courts have ruled on this.
Rebuttal Time for Attorney Reed: Feels the public should have an opportunity at this time. Chair Musick indicated the procedure is to hear from Reed then to the Board of Supervisors for deliberation.
On Item #III: Regarding Hearing Notices. One of the objections is that the township fails to follow its own Ordinances. The October, 2006 review is an important matter. The phrase of industrial park has been used by Attorney Strom about 20-30 times in his comments. There is no evidence of Lipe Construction ever contemplating an industrial park on their property. There is not or ever been, a notion of creating an industrial park---the term connotes a message of “politics of fear”. The point that everyone is missing---in order to know where you are, you need to know from where you started. At this time Reed receives a note from the public: From 1965 and onward, the Lipe property sold retail sales of parts, etc. The Planning and Zoning Commission did not fully develop facts about the salvage yard.
Reed: Review the record---not a single item of incompatibility can be found stated in the record. A mistake of the Planning and Zoning Commission continuously made was concern over the MUNS-4 zone and what the property use has been. The township has refused to address the previous use issues adequately. A recurring theme in Strom’s comments and the Planning and Zoning Commission decision is “industrial park” which is not relevant.
Relevancy to Item #V: There is nothing in the review about concern over salvage yard business.
Reed referenced the role of the Planning and Zoning Commission to invoke enforcements. There was no single bit of testimony offered about the salvage yard on August 15 and 28 of 2007. The Planning and Zoning Commission cannot make decisions on items where no evidence is offered.
Clarification about a point of a written summary being provided was made by Chair Musick. Both Strom and Reed were invited to submit written closing comments to the Board.
Reed commented that essentially the Public Hearings and the opportunity for input was essentially closed on August 28th. The audio recordings will verify this. Reed’s question is that issues of lot coverage, salvage yard and other issues were not a part of the public notices, and yet there was not an opportunity for public input when the Commission discussed these issues. The issue of public notice regarding one business has nothing to do with salvage yard; yet the 2001 initial Hearing did not have public notices about renting nor did the 2007 notice note salvage yard as a purpose of the public hearing.
Regarding the one-fourth acre limitation, it is a new trigger requiring client to go through numerous hearings to obtain an approval for a larger salvage yard area to be utilized. Can’t be imposing items that affect clients as well as the public’s rights.
Reed referred to reasonable conditions---submits that the definitions are too lengthy and are speculative about the future. Are trying to control client’s activity by work that could be done away from the property site. The discussion of the Planning and Zoning Commission sometimes referred to non-relevant and illogical items and these items affected the decisions made.
Reed stated that he has a real problem with the business activity area definition. Reason why---“business activity” definition violates rights; it is trying to box client in with regard to use possibilities. May be asking client to restrict grandfathered rights.
The retail sales portion of the revised conditional use permit did not obtain a public input process. This item was ignored. Evidence was presented about meeting Clark’s retail sales. This use is grandfathered. We now have a contradiction with the revised conditional use permit. Reed indicated he had offered information on business activity area but it apparently was ignored. The lot coverage and business activity of the upper lot area was brought forth by the Planning and Zoning Commission after the public hearing was closed. Get rid of business activity area since Attorney Strom indicated it was not of importance at this time. The positions are that the definitions are not reasonable.
Issue #VII: Reed stated he has issue with the requirement of the conditional use permit amendment to add new buildings to the property. Ordinarily, the building permit process would be taken care of by other procedures.
The one-fourth acre trigger is actually a taking because the grandfathered use has been taken away. The one-fourth acre is actually a restriction on use without it coming before the public hearing. How many hearings would client have to go through to amend the conditional use permit for something beyond the one-fourth acre salvage yard.
On November 13, 2007, the chair of the Planning and Zoning Commission advised that the public hearing phase was over and yet the salvage yard item was only introduced at this time. The salvage yard was not introduced at the public hearing phase therefore the process is flawed.
Item# VIII: On the discussion between Supervisors and the Planning and Zoning Commission members. Reed stated he has concern of Supervisors trying to direct the actions of the Planning and Zoning Commission. He stated that at the November 13, 2007 meeting, that did occur. The reason why the meeting was important is that if anything on lot coverage is to be discussed, the history needs to be covered. Neither the attorney nor an individual cannot bind or reverse the Commission’s decision to have a meeting. Thus, the grandfathered use and lot coverage issues were not adequately covered. Again, Reed emphasized that the e-mail from Strom did not clearly indicate that a meeting was not to be held when everyone else got together as per the Commission’s direction made by a motion and approval to do so.
At this time (10:30 p.m.), Reed asked the Board if they wished to continue due to the time.
Motion by Campbell to extend the meeting to 11:00 p.m. Second by Halverson. The Motion was then recalled by both Campbell and Halverson.
Motion by Campbell to set a meeting date of Thursday, March 27, 2008 at 7 p.m. Second by Campbell. The purpose would be to hear from Attorney Reed on the Items 9 through 13 and is concern about Commission minutes.
Motion by Ostazeski to amend the motion to add April 3, 2008 as a potential additional meeting date to complete the business. Second by Halverson. Motion Carried.
Motion by Halverson to recess the meeting to March 27, 2008 at 7 p.m. Second by Ostazeski. Motion Carried.
Respectfully Submitted;
Gene Bromenshenkel
Town of Lakewood Deputy Clerk