Approved minutes
Lakewood Planning and Zoning Commission Public Hearing
Wednesday, August 15, 2007, at 7:00 PM
Lakewood Town Hall
The purpose of the public hearing was to review the conditional use permit (CUP) for Lipe Bros. Construction, as directed by the Zoning Administrator.
Present: Chair Bob Wolfe, Town Attorney Tim Strom, Inese Holte, Angie Dickison Palmer, Chris Roningen, Robin Downs, Kerry Leider, Ann Cutts, Peter Miller, and Recorder David Gerhart. Zoning Administrator Brennan Mears arrived at about 8:10 PM. Members of the public and all Town Board members were in the audience (see attached register).
Wolfe called the meeting to order at 7:02 PM. The Pledge of Allegiance was recited by all. Leider was designated
a voting member.
Wolfe informed those present that there were errors in the Duluth News Tribune article published that day, specifically that the hearing would not deal with the LIU-10 zone district and that Jerry Lipe had not filed a lawsuit against the Town. He stated that the hearing was to review the Lipe CUP only. He further stated that the hearing was held because the Zoning Administrator (Mears) had found Lipe Bros. to be in non-compliance with its CUP as per Article VIII, Section 5, of the Lakewood Zoning Ordinance. He said that the Commission could elect to revoke the permit, attach new conditions to the permit, or take no action.
Wolfe cited Mears letter of June 26, 2007, to the Lakewood Planning and Zoning Commission (P&Z) that stated that the current use is not, in his opinion, in compliance with terms of the CUP. This hearing will gather evidence and testimony relating to compliance with the CUP.
Tim Strom presented 2 issues: 1) Is Great Lakes Stone (GLS), a business currently operating on the property, a type currently allowed; that is, does it meet the criteria of being a construction office/business, storage, and salvage yard? 2) Is there a violation of the CUP because there are 2 businesses operating on the property, since the CUP referred to only one business?
Strom introduced a number of documents to be included in the record and cited specific sentences in each document:
1) The original conditional use permit appeal by Lipe Bros. Construction, dated 2/27/01.
2) The P&Z minutes of 4/3/01. The minutes describe the public hearing for the CUP and list the conditions attached to the CUP.
3) The “Findings, Conditions, and Order Granting or Denying a Conditional Use Permit” recorded on 8/31/2001 by the Office of the St. Louis County Recorder. This document also lists the uses allowed and the conditions attached to the CUP.
4) The P&Z minutes of 4/24/2001. The minutes include a statement by Dale Rogers that the minutes are clear that the CUP did not include subletting. They also mention a discussion about obtaining the Town attorney’s opinion on this matter.
5) The TBS meeting minutes of 5/2/01. The minutes state that the Zoning Administrator has clarified with Lipe Bros. that they will not be subletting the property. It was also agreed that Attorney Strom would research the issue of subletting and consult with the Zoning Administrator.
6) The memorandum of 5/30/01 prepared for the Town by Tim Strom entitled “Conditional Use Permit for Lipe Brothers Construction: Questions RE Nature of Permit and Subletting.” Strom concluded that, although the matter is debatable, a zoning commission can probably prohibit subletting or otherwise define the number of users. However, he also said that the minutes of April 3, 2001, were unclear about what was decided in this regard. CUPs apply to the land, not the property owner.
7) The P&Z minutes of 10/18/06 at which meeting the Lipe Bros. CUP was reviewed. All members of P&Z agreed that there was a violation of the CUP, and GLS was given until June 30, 2007, to leave the property. The CUP was not modified.
8) The P&Z minutes of 11/28/06. GLS owner Clint Massie is aware he is supposed to vacate the property by the end of June.
9) The TBS minutes of 1/3/07. Mears reported that a letter was sent to Clint Massie.
10) The memo from Tim Strom to Lakewood officials dated 2/6/07. Among other things, the memo stated that if Lipe Bros. leases a portion of its property, the lessee cannot act under the CUP to establish a second construction office, shop, storage facility or salvage yard. In addition, if Lipe Bros. sold a portion of its property, the CUP would apply to neither of the two new parcels that would be created.
11) The memo from Tim Strom to TBS dated 5/2/07. Among other things, this memo describes the procedures to be followed if a landowner is violating a CUP.
12) The TBS special meeting minutes of 6/20/07. Steve Overom, attorney for Lipe Bros., made a presentation to TBS. TBS instructs P&Z to hold a new public hearing on the Lipe CUP, consulting with Attorney Strom on procedural matters. TBS felt that P&Z did not take appropriate action at the hearing on 10/18/06 and that the P&Z decisions at that meeting needed clarification.
13) The letter from Brennan Mears, Zoning Administrator, to P&Z dated 6/26/07. Mears states that he believes that Lipe Bros. are not in compliance with the CUP and recommends that a public hearing be scheduled.
14) The notice to residents and property owners in the Town of Lakewood of a public hearing to be held on Wednesday, August 15, 2007, to review the CUP of Lipe Bros. Construction Company.
15) The P&Z minutes of 7/24/01. The minutes include a statement that because of the CUP, the Lipe property is no longer classified as MUNS-4, but is now commercial.
16) The P&Z minutes of 8/28/01. Motion made and carried that the Lipe property remains a MUNS-4 zone and is not a commercial zone.
Strom concluded that, according to Article VIII, Section 5, of the Lakewood Zoning Ordinance, P&Z may revoke the CUP, add conditions, or take no action. P&Z must determine whether there is a violation, and, if so, what action to take.
Shawn Reed, attorney for Jerry Lipe and Lipe Bros. Construction, presented a document entitled “History of Property Use” for the public record. He explained that he did not have all the documents he wished to enter into the record at this time because some documents may be in the possession of Steve Overom and he had not had time to examine all documents in Lakewood’s possession. On July 10, 2007, he had requested information from Lakewood through the Government Data Practices Act. However, according to Strom, this act does not apply to townships. Reed also explained that he did not find out about this hearing until August 1, and thus had limited time to assemble documents.
Strom said that the missing documents could affect the decision by P&Z. Reed said that the documents that were submitted to the Town by Overom should be part of the record. He also said that the entire contents of the Town’s file on Lipe Bros. should be part of the record. After some discussion about obtaining and paying for the appropriate documents from Lakewood, Wolfe suggested that it might be appropriate to recess the hearing until the next P&Z monthly meeting on August 28. He also said that P&Z would need the documents in a week to give P&Z members time to review them. A mailing should therefore go out to P&Z members on Tuesday August 21. After more discussion as to whether to proceed with the hearing, Gene Bromenshenkel, Town Clerk, said that he would need all documents from Reed by noon on the 21st of August. Wolfe decided to proceed with testimony at the hearing but noted that a decision would not be made at this time.
Wolfe had questions for Jerry Lipe. Lipe stated that his business was a commercial contractor and construction company and that he had purchased the property on June 5, 2000. His business was in operation by September of that year, before the CUP was issued. At that time the house on the property was occupied, and there were no other businesses except a body shop. Lipe stated that, in addition to renting the house, he has rented to other businesses over the years, including Timberline Construction (also referred to as “Timberland” at this hearing), primarily a roofing business. Timberline was renting at the time of the CUP. Eventually, Timberline left and GLS took over the rental of the house. Lipe could not supply exact dates for these events.
Reed pointed out that throughout the Lipe ownership there have been rentals of portions of the property and that Lipe’s predecessors on the property, Val Jakubek and Marty Clark, also had rented portions of the property.
Wolfe asked about the nature of the GLS business. Lipe said that GLS sells bricks, block, and pavers to contractors and also uses these materials for their own business. Lipe guessed that the GLS business is about 10% retail and said that the house serves as an office for the business. GLS also has some storage space in the Lipe building. Originally there was a written rental agreement between Lipe and GLS, but that agreement was not renewed, although rent continues to be paid.
Wolfe asked, “Was the Town involved when GLS moved in?” Answer: “No.” Lipe thought it was not necessary because TBS and P&Z were involved with the Timberline renting. No challenges were issued by the Town. Lipe pointed out that he has pictures of the 10,000 tires that were left on the property when he purchased it. He also stated that he spent $80,000 cleaning up the tires and junk cars that had been abandoned on 7 or 8 acres of the property. Lipe stated that he never thought there would be a problem with renting to GLS, especially since he had improved the visual appearance of the property to a considerable degree.
Reed stated that the CUP does not specifically prohibit renting and that it only refers to a construction office, not to Lipe Bros. specifically.
Wolfe had questions for persons who were members of P&Z when the original CUP was issued in 2001. Holte, P&Z Chairperson in 2001, said that P&Z found out that Lipe Bros. was operating without a permit and that Roger Lipe came to a P&Z meeting regarding Timberline. Holte said that P&Z was emphatic that no other businesses were allowed on the property and that the CUP pertained only to Lipe Bros. The public notice regarding the conditional use hearing did not refer to Timberline, Timberline was not discussed at the CUP hearing, and, furthermore, at the time of the hearing, she did not know about Timberline so there was no reason to discuss leasing to Timberline at the hearing. Cutts agreed with Holte that the permit did not apply to Timberline and was only for Lipe Bros. Later, when the issue of Timberline did arise, P&Z understood that Timberline was going to leave the property, so there was no reason to take action.
Reed asked for the opportunity to question any persons, including those that Wolfe had questioned. Wolfe said that Reed would have this opportunity when Wolfe was finished.
Bob Wolfe questioned Bob Gray, who stated that he had no recollection of the events of early 2001.
Kathy Wolfe, also a P&Z member in 2001, agreed with Holte and Cutts that the CUP application was for Lipe Bros. only and that P&Z was unaware of Timberline. She also stated that it was her understanding that the CUP did not allow subleasing or renting.
Jerry Lipe stated that his intention was always to lease part of the property.
Cutts asked if a tape was available of the 2001 CUP hearing and was informed that no tape existed.
Holte said that the conditions placed on the permit were limited because it was understood by P&Z that Lipe’s employees would be working on jobs elsewhere and not primarily on the property.
Bromenshenkel noted that the process of a public hearing involves an application that leads to a public notice. P&Z then deals only with the specific request on the application. Bob Wolfe then read the request on the original application. He also read the comment by Dale Rogers from the 4/24/01 P&Z minutes (noted above) stating that the minutes were clear that subletting was not allowed. Cutts and Kathy Wolfe agreed with this comment. Holte said she could not speak for Rogers, but agreed that the CUP applied only to Lipe Bros.
Cutts and Kathy Wolfe agreed that Al Eastman, Lakewood’s Zoning Administrator in 2001, would be an important person to contact regarding whether Lipe Bros. were in compliance with their CUP during his tenure.
Bob Wolfe asked for additional comments from P&Z members and there were none. He then asked for comments from the audience in favor of the position taken by Zoning Administrator Mears, namely that Lipe Bros. are in violation of their CUP. No one spoke.
Wolfe then asked for comments from the audience opposed to Mears position.
Bob Gray said he did not support Mears position. Don Putnam wondered why this wasn’t taken care of 6 years ago and said that the money being spent now was ridiculous. He asked why the issue was coming up now, and was told by Wolfe that it had been brought to P&Z by the Zoning Administrator now.
Evie Simonson wondered what the problem was and if there had been complaints from neighbors or the community. Wolfe said that it is Mears’ belief that there is a violation of the CUP. Simonson said that the Town should quit spending money and change the wording of the CUP.
Dean Lipe, an employee of Lipe Bros., explained that the source of the current controversy was that GLS did not want to continue to rent and came to Mears with questions. He said that Mears did not act properly and that he made an issue out of nothing. He said that the Town should have some compassion for a family business and should be fair.
Robin Downs, current P&Z member, pointed out that the zoning laws are there to protect us. She said she had no objections to the businesses that are there but that the Town must avoid going down a slippery slope.
Bob Nelson said he remembers when there were multiple businesses on the property and can’t understand what the concern is. He said that Jean Duluth Road is clearly a commercial corridor and that he doesn’t understand what’s different now or why this is an issue.
Elaine Augustad said she has been in the Township for 36 years and there has always been a business on the property. She said there is a need for zoning but also a need for understanding.
Jim Rich said that there are many businesses on the same parcel in Two Harbors and in Hermantown and that CUPs run with the land, not a particular business. He said there is no case law to back up these proceedings. He expressed disappointment that Lipe Bros. have been dragged through these proceedings for 6 years and wondered if a beverage machine at a gas station would also mean that two businesses were operating at the same site. Phil Halverson, a Town Board member, responded that Lipe Bros. are in a residential area and that, having accepted the original permit, should request a change in their CUP.
Jerry Larson, also a Town Board member, said that when Lipe got the CUP, it was for his business only and that this was clear to Lipe Bros. at the time. He said that we should follow the zoning ordinance or change it and that we can’t make exceptions for one person or business. He said that Mears is doing his job and that we should be glad that he is.
Reed said that there has been no determination that there is a violation. Bob Wolfe countered that Mears has determined that there has been a violation.
Kathy Wolfe said that she supports Mears, who is doing his job, and that the reason this has dragged on for 6 years is that the former Zoning Administrator did not do his job.
Tim Huchthausen said he supports Lipe and that the CUP should be adjusted so that Lipe can make better use of his property. Huchthausen would like to see more support for businesses in Lakewood.
Jeff Bruckelmeyer said he agrees with Huchthausen and Rich. He believes that the Town is “nickel and diming” this issue to death.
Dean Lipe brought up the issue of Edelweiss Nursery and wondered if they were getting the same scrutiny. Mears responded that he is in the process of reviewing all CUPs in Lakewood, including Edelweiss.
Bob Wolfe then closed the public input part of the hearing and said that in the next phase P&Z members would be given an opportunity to question individuals. Lipe’s attorney, Shawn Reed, would also give a presentation and have the opportunity to ask questions.
Motion by Holte, second by Miller for a 5-minute recess. Carried.
Wolfe reconvened the hearing and said that a determination needs to be made whether GLS is a permissible activity on Jerry Lipe’s property. He asked if there were any questions for Mears from P&Z members. There were none. He asked if there were questions from P&Z members for Attorney Strom. Again there were none. He then asked if there were questions from P&Z members for Attorney Reed.
Downs asked Reed why he didn’t come prepared with the appropriate documents for the hearing. Reed said that there have been 27 meetings in which Lipe’s business had been mentioned and 6 hearings so far. He said he found out about this hearing on a golf course on a Sunday and that it was difficult to condense 6 years of information in the limited time that was available to him.
Leider brought up the hearing of 10/18/06 when it was stated that GLS was to vacate the property by the end of June 2007. He asked if Lipe and Reed were aware of the meeting. Reed replied that there was no action taken to get GLS out. Leider said that Lipe and Reed knew that the property was zoned MUNS-4. Reed said that when Lipe knew that he was operating in non-compliance, he came for a permit. Leider said that P&Z may have assumed that GLS was operated by Lipe brothers. Reed said that he has a different interpretation of the minutes. Leider asked whether Lipe is looking for permission to operate 2 businesses with conditions. Lipe replied that, yes, that is all he is asking for. Reed said that he realized that there is concern about an industrial park type of development and the number of buildings that may be placed on the property, but that is not Lipe’s intent. He also cited the relevance of the history of the property.
Holte said that it is very clear that P&Z’s intention was to have only one business on the property. She wanted to know where is the guarantee that, when Lipe leaves, additional businesses would not be established. She pointed out that the legal notification to the public did not include Timberline Roofing and wondered how P&Z could be more clear about allowing only one business.
Miller tried to clarify P&Z’s thinking, saying he likes the business but wants to know what the assurance is that P&Z won’t be back again in another 6 years trying to deal with 3 businesses on the property. How can we write the conditions so that 2 businesses are the limit?
Reed noted that between the April 2001 meeting and August 31, 2001, when the CUP was recorded, there was considerable discussion at Town meetings on subletting, so perhaps the CUP wasn’t as clear as P&Z suggests. He said that the CUP could be amended to restrict renting to one additional business. The language of the CUP could be changed and he, Reed, would be willing to work with Attorney Strom to find appropriate language.
Holte wanted to know, “What if the second business is in the business of renting, and how do you stop people from crossing the line?”
Reed replied that Lipe doesn’t want any more than he already had in the first place. He presented an undated photo showing Lipe’s buildings with signs in place for both Lipe Bros. Construction and Timberline Roofing. He stated that both businesses were in operation at the time of the issuance of the CUP.
There were no more questions for Attorney Reed.
Attorney Strom had a number of questions for Jerry Lipe about the dates and the nature of his business. Lipe said he purchased the property on June 5, 2000, and that Timberline became a renter within several months. He could not recall the date. He stated that Timberline was a roofing and siding company. At some point (date uncertain) the rental of the house ended, Timberline moved out, and GLS arrived soon after. He stated that GLS sells bricks, stone, and mortar and stores materials outside. GLS has a delivery truck to supply its customers, and they also do construction work.
Wolfe asked if anyone had questions for members from the 2001 P&Z. Downs asked Holte why the conditions in the CUP didn’t include leasing and renting. Holte replied that Timberline wasn’t in the discussion or in the notice for the public hearing. The CUP was for Lipe Bros., so Timberline was not in the permit.
Wolfe now asked Attorney Reed to make his presentation and ask questions. Reed said that he appreciated the opportunity to ask questions of Mears and P&Z. He noted that Mears was present at the CUP review hearing of 10/18/06 and that Mears had suggested at that hearing that the CUP be amended to allow 2 businesses. He asked if Mears still supported that position. Mears replied that he did, with the caveat that Lipe relinquish the salvage yard permit as a compromise.
Reed again presented the photograph for the public record showing 2 businesses with signs for Lipe Bros. and Timberline on the property at the time the CUP was issued. He stated that the signs were visible and that the businesses were both part of the use of the property at that time. He also cited the original zoning appeal document that is checked for “Other” and lists “Current Use.” This, Reed argued, means that the request for the CUP includes renting. Lipe had been renting to a construction business, and GLS is also a construction business, so the use has not changed.
At this point (after 10:00 PM) it was suggested that the hearing should be recessed due to the lateness of the hour. Holte favored recess. Roningen said that it seemed people were in agreement so that further testimony could be skipped and P&Z could proceed to add additional conditions to the CUP. Bob Wolfe countered that there were still a lot of steps in the process and that the Lipe case needed to be heard in full.
Roningen said that we can agree that GLS is a construction business. Holte agreed with Roningen but did not want to revise the CUP at this late hour. She felt that the revision should be handled by the attorneys.
Strom said that P&Z must first decide if Lipe is in compliance.
Motion by Palmer to recess until the next regular P&Z meeting on 8/28/07 to give Attorney Reed an opportunity to make his case in full. Second by Cutts.
Reed said he would be more than happy to work with P&Z and Attorney Strom. Strom said that P&Z could also find that the original CUP was not clear. Jerry Lipe said he wanted to get to the final point with a modified CUP. Reed said he wanted to clarify for all present that Lipe has not sued the Town of Lakewood. Downs noted a “spirit of cooperation.”
Bob Wolfe said that the first priority at the next P&Z meeting would be to finish this public hearing.
Motion passed unanimously and the public hearing was recessed at 10:20 PM until the next regularly scheduled P&Z meeting on August 28, 2007.
Respectfully submitted,
David Gerhart