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HomeMy WebLinkAbout97-005 Home Occupation Appeal Staff Reports L:\TEMPLA TE\FILEINFO.DOC STAFF AGENDA REPORT DATE: lOA JANE KANSIER, PLANNING COORDINATOR UPDATE ON STATUS OF MARK MICHAEL HOME OCCUPATION APRIL 7, 1997 AGENDA #: PREPARED BY: SUBJECT: INTRODUCTION: On March 3, 1997, the Council adopted Resolution #97-18 denying an appeal by Mark Michael regarding a home occupation for property located in the Windsong neighborhood. At that time, the Council also directed staff to meet with Mr. Michael to establish a time line for compliance with this resolution. DISCUSSION: The staff has contacted Mr. Michael by letter, dated March 11, 1997, asking him to set up an appointment. In a telephone conversation, Mr. Michael indicated he was exploring his alternatives before setting a meeting date. Since we have received no further communication from Mr. Michael, the staff has sent another letter, dated March 28, 1997, again asking that he set up a meeting to establish a timeline. ACTION REQUIRED: There is no action required, unless the Council wishes to provide staff with further direction in this matter. Revie 1:\97files\97appeal\97-005\ccupdate.doc 1 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER March 28, 1997 Mark Michael 4190 Eau Claire Trail Prior Lake, MN 55372 Dear Mr. Michael: In my letter to you dated March 11, 1997, I stated the City Council had directed staff to meet with you to establish a time frame for compliance with the Resolution #97-18. When we last spoke, you indicated you had not set up this meeting since you were exploring your alternatives. Since I have not heard from you since that time, I am writing this letter to ask that you either contact me to set up a meeting as soon as possible. If you would like to delay this meeting, please respond, in writing, to let me know of your intentions. Thank you for your attention to this matter. I look forward to hearing from you. .. Sincerely, l/ . , ~'\.-.G (2. ~CL/vv~.~~ (j Jane A. Kansier, AICP Planning Coordinator c: Frank Boyles, City Manager Suesan Lea Pace, City Attorney Don Rye, Planning Director 1:\97files\97 appeal\97 -005\3-28Iet.doc 16200 Eagle Creek Ave. S.E., Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNJ1Y EMPLOYER March 11, 1997 Mark Michael 4190 Eau Claire Trail Prior Lake, MN 55372 Dear Mr. Michael: Enclosed you will find a copy of Resolution #97-18, adopted by the City Council on March 3, 1997, and a copy of the City Council minutes from that date. As you know, at that meeting the City Council directed the staff to meet with you and your attorney to establish a time frame for compliance with the resolution, and to report back to the Council at its April 7, 1997, meeting. We would like to set up this meeting as soon as possible. Some possible dates include Monday, March 17, 1997, Wednesday, March 19, 1997, and Monday March 24, 1997. Please contact me as soon as possible to let me know which date will work for you. If none of these dates are convenient, we can schedule another time. Thank you for your attention to this matter. I look forward to hearing from you. Sincerely, ~O.~ UJane A. Kansier, AICP Planning Coordinator c: Frank Boyles, City Manager Suesan Lea Pace, City Attorney Don Rye, Planning Director Jim Bates 1:\97files\97appe~1\97 -005\3-11Iet.doc 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER RESOLUTION 97-18 OVERTURNING THE RECOMMENDATION OF THE PLANNING COMl\'llSSION IN THE MATTER OF AN APPEAL OF A DECISION OF THE ZONING OFFICER RELATING TO A HOME OCCUPATION, CASE NO. 97-005, DENYING THE APPROVAL OF A HOME OCCUPATION FOR MARK MICHAEL ON PROPERTY LOCATED AT 4190 EAU CLAIRE TRAIL MOTION BY: KEDROWSKI SECOND BY: MADER WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, The Ordinance that existed prior to the current ordinance allowed the City Planning Commission to issue permits for home occupations such as an art studio, dress making, teaching or professional offices for a physician, engineer, architect or accountant; and In 1996, the ordinance was amended to prohibit home occupations in accessory structures, whether attached or detached, and to prohibit retail sales and warehousing activity; and Mr. Michael's home occupation consists of warehousing food and products for vending; and The City investigated a complaint relating to the home occupation Mr. Michael was conducting and the requirement to have a permit; and Mr. Michael's has been operating this home occupation from his current residence and previous residence in Prior Lake, since 1989; and the nature of his business is the warehousing and distribution of food products; and Food/vending warehouse and distribution requires a state license, which the Department of Agriculture does not have a record that Mr. Michael applied for or was granted a state license; and Mr. Michael's Realtor obtained a copy of the home occupation ordinance and shared the ordinance with the developer of Windsong and the Windsong Home Owners Association; and The Realtor, Developer and Windsong Neighborhood Association determined the business Mr. Michael's was operating from his home did not require a home occupation permit; and The Prior Lake City Council conducted a hearing on the 3rd day of March 1997, to act on an appeal by Mark Michael of the Zoning Officer's denial of a request to approve the warehousing business operated from home as a home occupation and to grant a home occupation permit; and The Planning Commission has recommended the City Council overturn the decision of the Zoning Officer: " 16200 B'a~lW.gt12~qLw~p~rs.~~~~, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (61~~47-4245 AN EQUAL OPPORTUNI1Y E."'1PLOYER NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCn.. OF PRIOR LAKE: FINDINGS 1. The appellant has been operating a warehousing, distribution and vending business d/b/a M&M Vending, from his home since 1989. The property is located in the Windsong neighborhood and legally described as: Lot 4, Block 5, Windsong on the Lake The business involves the receipt at the appellant's home of products produced off-site, the warehousing of those products in a attached garage and the subsequent delivery of those products to various vending machines. 2. City Code permits certain home occupations. A home occupation permit is required in order to operate a home occupation. 3. A warehousing and distribution business is distinguished from a home occupation in that the goods and services are not produced within the home, as required by the City Code. 4. There is no written evidence Mr. Michael's ever applied for or was granted a home occupation permit. 5. The appellant is not eligible for a home occupation permit because the warehousing or distribution of products not produced on the site is prohibited under the ordinance. 6. The Minnesota Department of Agriculture advised the City it has no record that NIT. Michael ever applied for or received a state license to store or handle food products. 7. The decision by Mr. Michael's Realtor, developer and Windsong Home Owners Association that a home occupation permit was not necessary is not binding on the City Council. 8. The City Council finds that warehousing was not a permitted home occupation under the ordinance in effect in 1989, when the Michael's built their home. The ordinance in effect in 1989 allowed the City to issue home occupation permits for only those types of activities listed in the ordinance or similar thereto. If a home occupation was not enumerated or similar to an enumerated use, it was not eligible to receive a home occupation permit and therefore prohibited. 9. Upon investigation of the complaint, the Zoning Officer determined (1) Mr. Michael was conducting a warehouse/distribution operation and (2) such an operation was not permitted under the City's Zoning Code. 10. Mr. Michael appealed the decision of the Zoning Officer to the Planning Commission. 11. The Planning Commission reviewed the materials and facts contained in Case File #97-005, held hearings thereon on February 10, 1997, and recommended overturning the decision of the Zoning Officer. " r: \council\resoluti\planres\rs9718cc.doc Page 2 12. On March 3, 1997, the Prior Lake City Council reviewed the appeal and the recommendations of Planning Commission at a regularly scheduled City Council meeting. 13. Neighborhood oppositjon or support, in and if itself, is not sufficient basis to justify a zoning decision. 14. The City Council has considered the effect of overturning the decision of the Zoning Officer upon the health, safety, and welfare of the community. The City has a legitimate interest in assuring that property owners comply with all applicable zoning regulations pertaining to the use of their parcel. 15. The City Council finds that the applicant/appellant does not meet the standards for a home occupation as set forth in Section 5-5-8 of the City Code, and that the appellant has not set forth adequate reasons for overturning the decision of the Zoning Officer. 16. Upholding the decision of the Zoning Officer would require the appellant to comply with Section 5--5-8 of the City's Zoning Ordinance and either discontinue the warehousing operation or relocate the existing business activities to a zoning district which would permit warehousing. 17. The contents of Planning Case File #97-005 are hereby entered into and made a part of the public record and the record of the decision for this case. CONCLUSION Based upon the Findings set forth above and the contents of Planning Case File #97-005, the City Cour.cil hereby upholds the decision of the Zoning Officer and over rules the recommendation of the Planning Commission. Mr. Michael's warehousing, distribution, vending business was not permitted under the ordinance in effect in 1989 and therefore is not eligible to be "grandfathered." Mr. Michael's warehousing, distribution, vending business does not meet the criteria in Section 5-5-8 of the City Code for a home occupation. 1. The appellant must cease or relocate the home occupation to met the criteria of the ordinance (Section 5-5-8) to obtain a home occupation permit as required by City Code. ',' r:\council\resoluti\planres\rs9718cc.doc Page 3 Passed and adopted this 3rd day of March, 1997. YES Andren ABSENT Andren Greenfield ABSENT Greenfield Kedrowski X Kedrowski Mader X Mader Schenck X Schenck NO {Seal} " r:\eouneil\resoluti\planres\rs97I See.doe Page 4 Co~c.,i/ M,'nuJ-LS 3/3/ q 7 . Councilmember Kedrowski said there was only three times that would be addressed, and very few residents are involved with two of them. . City ManagerBoyles suggested that each item would be explained, and there would be an itemized agenda, so it should go smoothly. . Councilmember Mader expressed concern that citizens would have the opportunity to speak. . Acting Mayor Schenck called the question. Upon a vote, ayes by Kedrowski, Mader, and Schenck, the motion carried. 8. NEW BUSINESS: . Item 8E, Resolution 97-18 Denying an Appeal from the Decision of the Zoning Officer Relating to Home Occupation was moved to the first item of New Business by General Consent. . City Manager Boyles introduced the item and noted that a letter had been received by Deb Garross. . Planning Director Rye explained the background. The home owner is operating a home vending business, and has not obtained a home occupation permit. There is no documentation of approval on file that the Michaels ever applied for a home occupation permit. The City received a complaint in October of 1996. In December of 1996, the City requested that Mr. Michael apply for a permit or cease operation of the home occupation. This was to set the process in motion that would allow Mr, Michael the opportunity to appeal the' Zoning Officer's decision. Mr. Michael is appealing on grounds of the interpretation of the ordinance. Staff has concluded that Mr. Michael is required to obtain a home occupation permit or cease operation of the home occupation. The present activity cannot be "grandfathered in" because there is no record of any such permit being approved in the past. . Jim Bates of Huemoeller & Bates, attorney for Mr. Michael, noted that the Planning Commission recommendation was that it be grandfathered in. The business has existed since 1989, it should be assumed that it was thought to be in conformance during that time. He said it is ridiculous to assume that the list of home occupations in the zoning ordinance that existed then, while it lists home occupation, would exclude all those occupations not on the list. He said there was minimal delivery activity, no change to the residential character of the neighborhood. There was only one employee and very infrequent deliveries. . Councilmember Mader questioned the relevancy of those points. The real issue, he said, was whether the use conformed when the business was started. He asked for the City Attorney's opinion. 3397.DOC 3 / . City Attorney Pace said it was her opinion that the Michaels position if extended could reach absurdity. She said she does not support the issue that the 1989 ordinance "other than those listed.." meant that they did not need a permit. The question for the City Council is whether warehousing is a permitted use. She noted that Deb Gaross' letter had not been reviewed by the Planning Commission. -- . Attorney Bates said that businesses not listed in the ordinance are not clearly subject to the zoning ordinance. Also, the City added warehousing. He objected to the introduction of Deb Garross' letter. He said that his client, Mr. Michael, had told the Planning Commission that he spoke with "someone" in the Planning Department, who he "thought" was Deb Gaross. . Councilmember Kedrowski asked Planning Director Rye if food storage required a special license from the Department of Agriculture, or if the City was responsible. . Planning Director Rye said the City was not responsible for that type of licensing . Councilmember Kedrowski asked Attorney Bates if Mr. Michael had a license for warehousing food. . Attorney Bates said that was a "red herring" to bring this up now, it was irrelevant. . Councilmember Kedrowski said it was relevant because the City was being asked to grandfather. . Councilmember Schenck said he recalled a similar case in which a commercial truck was stored at a residence. The intent of this kind of zoning ordinance is to separate businesses from residences. MOTION BY KEDROWSKI SECOND BY SCHENCK TO APPROVE RESOLUTION 97- 19 DENYING AN APPEAL FROM A DECISION OF THE ZONING OFFICER RELATING TO A HOME OCCUPATION. Upon a vote, ayes by Kedrowski, Mader, and Schenck, the motion carried. . Councilmember Schenck asked would there be a time frame, six months or so, to wind down use? . Planning Director Rye said he was not sure, the resolution would take effect immediately, so it would be illegal for him to operate out of home. MOTION KEDROWSKI SECOND MADER FOR CITY STAFF, MR. MICHAEL AND HIS ATTORNEY TO MEET AND ESTABLISH A TIME FRAME FOR COMPLIANCE WITH THE RESOLUTION, AND REPORT THIS AT THE FIRST MEETING IN APRIL. Upon a vote, ayes by Kedrowski, Mader, and Schenck the motion carried. JJ97.DOC 4 STAFF AGENDA REPORT DATE: 8E JENNI TOVAR, PLANNER CONSIDER APPROVAL OF RESOLUTION #97-XX DENYING AN APPEAL OF MARK MICHAEL FROM A DECISION OF THE ZONING OFFICER RELATING TO A HOME OCCUPATION MARCH 3, 1997 AGENDA #: PREPARED BY: SUBJECT: INTRODUCTION: In October 1996, the city received a complaint regarding a home occupation for property located in the Windsong neighborhood. Upon further investigation, it became apparent that the home owner is operating a business, had not obtained a home occupation permit as required by City Code (attached), and is therefore, conducting his home occupation in violation ofthe ordinance. The home owner, Mark Michael, has appealed the interpretation. DISCUSSION: Mr. Michael operates a home vending business (M&M Vending). The business stores and distributes food and vending products to vending machines at various locations. The food and similar vending products are delivered to the Michael's home and stored in the appellant's garage until distribution to the machines. There is no documentation of approval on file that the Michael's ever applied for or received a home occupation permit. Consequently, the city sent Mr. Michael a letter advising of the requirements of a home occupation permit and procedures (October 18, 1996) and met with him at a later date to further review the requirements. The ordinance requires permits for all home occupations. The specific requirements legislating the operation of a home occupation do not allow for warehousing, distribution or retail sales of merchandise that is produced off-site and do not allow for home occupations to be operated in accessory structures whether attached or detached. Mr. Michael is operating a warehousing operation from his attached garage which is prohibited under the ordinance. 16200 EWgn2~felJR<A\Te. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER In a letter dated December 13, 1996, the City requested that the applicant apply for a permit or cease the operation of the illegal home occupation within 30 days even though the Zoning Officer had determined the use was not permitted. The reason for this request was to set a process in motion that would allow Mr. Michael the opportunity to appeal the Zoning Officer's decision. On January 13, 1997, the City received a letter appealing the decision of the zoning officer that the warehousing activity is being conducted from an attached accessory structure was an illegal home occupation. Section 5-5-8 of the City Code sets out the standards for home occupations (emphasis added). The sections in bold are the relevant standards applicable to the Zoning Officer's decision. A. "All material or equipment shall be stored within an enclosed structure. B. Operation of the home occupation is not apparent from the street right-of-way. C. The activity does not involve warehousing, distribution or retail sales of merchandise produced off the site. D. The home occupation may be carried on by persons residing in the dwelling unit and not more than one employee who does not reside in the dwelling unit. E. The home occupation shall be carried on wholly within the principal structure. Space within the dwelling devoted to the home occupation does not exceed 10% of the floor area or 300 square feet, whichever is greater. No portion of the home occupation is permitted within any attached or detached accessory building. F. Exterior displays, signs (other than those permitted under the Sign Ordinance), and outside storage of materials shall not be permitted. G. Objectionable noise, vibration, smoke, dust, electrical disturbances, odors, heat, glare or other nuisance factors shall not be discernible at the property line. H The home occupation shall not create excessive automobile traffic within the neighborhood. The appellant contends in his letter of appeal dated January 13, 1997, and contended at the Planning Commission 97-005CC.DOC/JT 2 meeting, that the city was aware of his intent to operate such a home occupation. Mr. Michael said he inquired, prior to building his home, about any regulations that would affect him and his home business. Mr. Michael's contends he obtained a copy of the ordinance requirements at that time (attached). See letter from Leslie Marrinan stating she obtained a copy of the ordinance in 1995 and the neighborhood association interpreted it as permitting the warehousing occupation. Also, Mr. Michael contends that a building inspector was made aware of the proposed use of the residence upon a site inspection. For the purpose of discussion, let's assume the Zoning Ordinance was not observed. The City is not required to perpetuate a mistake (see attached case Frank's NurseJ:Y Sales. Inc. v. City of Roseville ). The building department is not and has not been responsible for administering or approvmg home occupation permits. The planning department is solely responsible for administering the Zoning Ordinance, of which, the home occupation ordinance is a part of. There is no written evidence of city approval for Mr. Michael to operate such a home business. The State Department of Agriculture administers state statute requiring food handlers to be licensed. The Department of Agriculture has no record of a license for Mr. Michael's business. Staffs conclusion is that Mr. Michael is required to obtain a home occupation permit to comply with requirements, or to cease operation of the home occupation. The present activity cannot be "grandfathered in" because there is no record of any such permit being approved in the past (including a required state license). The Planning Commission recommends that the City Council allow the home occupation to be "grandfathered in" because at the time the house was built, the Ordinance did not contain specific language supporting the requirement for a home occupation permit, and the property owner testified that he was told a permit was not required, based upon his testimony and documentation at the hearing. 97-005CC.DOC/JT 3 ISSUES: AL TERNA TIVES: RECOMMENDATION: ACTION REQUIRED: 97 -005CC.DOC/JT The City Council must determine if they agree with the staff's interpretation of the ordinance. The issue, here, is not to determine if the business creates a nuisance or is acceptable to the neighbors. While there is no written documentation of previous approval, the Council must determine if the existing home occupation was legal when the current ordinance was adopted ("grandfathered in") or if the appellant must meet the requirements of the current home occupation ordinance and obtain a permit. 1. Uphold the decision of the zoning officer by adopting Resolution #97 -xx. 2. Uphold the position of the appellant and direct staff to prepare a resolution with findings supporting such action. 3. Other specific action as directed by the Council. Alternative #1, to uphold the decision of the zoning officer. Adoption of Resolution #97-XX affirming the decision of the zoning officer 4 RESOLUTION 97-XX OVERTURNING THE RECOMMENDATION OF THE PLANNING COMMISSION IN THE MATTER OF AN APPEAL OF A DECISION OF THE ZONING OFFICER RELATING TO A HOME OCCUPATION, CASE NO. 97-005, DENYING THE APPROVAL OF A HOME OCCUPATION FOR MARK MICHAEL ON PROPERTY LOCATED AT 4190 EAU CLAIRE TRAIL MOTION BY: SECOND BY: WHEREAS, The Ordinance that existed prior to the current ordinance allowed the City Planning Commission to issue permits for home occupations such as an art studio, dress making, teaching or professional offices for a physician, engineer, architect or accountant; and WHEREAS, In 1996, the ordinance was amended to prohibit home occupations in accessory structures, whether attached or detached, and to prohibit retail. sales and warehousing activity; and WHEREAS, Mr. Michael's home occupation consists of warehousing food and products for vending; and WHEREAS, The City investigated a complaint relating to the home occupation Mr. Michael was conducting and the requirement to have a permit; and WHEREAS, Mr. Michael's has been operating this home occupation from his current residence and previous residence in Prior Lake, since 1989; and WHEREAS, the nature of his business is the warehousing and distribution of food products; and WHEREAS, Food/vending warehouse and distribution requires a state license, which the Department of Agriculture does not have a record that Mr. Michael applied for or was granted a state license; and WHEREAS, Mr. Michael's Realtor obtained a copy ofthe home occupation ordinance and shared the ordinance with the developer of Windsong and the Windsong Home Owners Association; and WHEREAS, The Realtor, Developer and Wind song Neighborhood Association determined the business Mr. Michael's was operating from his home did not require a home occupation permit; and WHEREAS, The Prior Lake City Council conducted a hearing on the 3rd day of March 1997, to act on an appeal by Mark Michael of the Zoning Officer's denial of a request to approve the warehousing business operated from home as a home occupation and to grant a home occupation permit; and WHEREAS, The Planning Commission has recommended the City Council overturn the decision of the Zoning Officer: 16200 EW~~ve. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE: FINDINGS 1. The appellant has been operating a warehousing, distribution and vending business d/b/a M&M Vending, from his home since 1989. The property is located in the Windsong neighborhood and legally described as: Lot 4, Block 5, Windsong on the Lake The business involves the receipt at the appellant's home of products produced off-site, the warehousing of those products in a attached garage and the subsequent delivery of those products to various vending machines. 2. City Code permits certain home occupations. A home occupation permit is required in order to operate a home occupation. 3. A warehousing and distribution business is distinguished from a home occupation in that the goods and services are not produced within the horne, as required by the City Code. 4. There is no written evidence Mr. Michael's ever applied for or was granted a home occupation permit. 5. The appellant is not eligible for a home occupation permit because the warehousing or distribution of products not produced on the site is prohibited under the ordinance. 6. The Minnesota Department of Agriculture advised the City it has no record that Mr. Michael ever applied for or received a state license to store or handle food products. 7. The decision by Mr. Michael's Realtor, developer and Wind song Horne Owners Association that a home occupation permit was not necessary is not binding on the City Council. 8. The City Council finds that warehousing was not a permitted home occupation under the ordinance in effect in 1989, when the Michael's built their home. The ordinance in effect in 1989 allowed the City to issue home occupation permits for only those types of activities listed in the ordinance or similar thereto. If a home occupation was not enumerated or similar to an enumerated use, it was not eligible to receive a home occupation permit and therefore prohibited. 9. Upon investigation of the complaint, the Zoning Officer determined (1) Mr. Michael was conducting a warehouse/distribution operation and (2) such an operation was not permitted under the City's Zoning Code. 10. Mr. Michael appealed the decision of the Zoning Officer to the Planning Commission. 11. The Planning Commission reviewed the materials and facts contained in Case File #97-005, held hearings thereon on February 10, 1997, and recommended overturning the decision of the Zoning Officer. 97-005RE.DOC 12. On March 3, 1997, the Prior Lake City Council reviewed the appeal and the recommendations of Planning Commission at a regularly scheduled City Council meeting. 13. Neighborhood opposition or support, in and if itself, is not sufficient basis to justify a zoning decision. 14. The City Council has considered the effect of overturning the decision of the Zoning Officer upon the health, safety, and welfare of the community. The City has a legitimate interest in assuring that property owners comply with all applicable zoning regulations pertaining to the use of their parcel. 15. The City Council finds that the applicant/appellant does not meet the standards for a home occupation as set forth in Section 5-5-8 of the City Code, and that the appellant has not set forth adequate reasons for overturning the decision ofthe Zoning Officer. 16. Upholding the decision of the Zoning Officer would require the appellant to comply with Section 5--5-8 of the City's Zoning Ordinance and either discontinue the warehousing operation or relocate the existing business activities to a zoning district which would permit warehousing. 17. The contents of Planning Case File #97-005 are hereby entered into and made a part of the public record and the record of the decision for this case. CONCLUSION Based upon the Findings set forth above and the contents of Planning Case File #97-005, the City Council hereby upholds the decision of the Zoning Officer and over rules the recommendation of the Planning Commission. Mr. Michael's warehousing, distribution, vending business was not permitted under the ordinance in effect in 1989 and therefore is not eligible to be "grandfathered." Mr. Michael's warehousing, distribution, vending business does not meet the criteria in Section 5-5-8 ofthe City Code for a home occupation. 1. The appellant must cease or relocate the home occupation to met the criteria of the ordinance (Section 5-5-8) to obtain a home occupation permit as required by City Code. 97-005RE.DOC Passed and adopted this 3rd day of March, 1997. Andren Greenfield Kedrowski Mader Schenck { Seal} 97-005RE.DOC YES Andren Greenfield Kedrowski Mader Schenck NO City Manager, City of Prior Lake PLANNING COMMISSION MINUTES FEBRUARY 10, 1997 1. Call to Order: The February 10, 1997, Planning Commission meeting was called to order by Chairman Criego at 6:32 p.m. Those present were Commissioners Criego, Stamson, V onhof, Wuellner and Kuykendall, Director of Planning Don Rye, Planner Jenni Tovar and Recording Secretary Connie Carlson. 2. Roll Call: V onhof Wuellner Stamson Kuykendall Criego Present Present Present Present Present 3. Approval of Minutes: MOTION BY KUYKENDALL, SECONDED BY STAMSON, TO APPROVE THE JANUARY 27,1997, MINUTES AS SUBMITTED. Vote taken signified ayes by Kuykendall, Criego, Wuellner, Stamso~ and V onhof. MINUTES APPROVED. 4. Public Hearings: None 5. Old Business: None , " 6. New Business: _ ~ A. CASE #97-005 MARK MICHAEL - APPEAL OF HOME OCCUPATION. ^- Planner Jenni Tovar presented the Staff Report. The City received a complaint regarding Mark Michael's home occupation. An investigation determined Mark Michael was operating a home occupation involving warehousing and distribution of merchandise produced off the site, without a permit, and determined he must apply for aJIome Occupation Permit. A letter was sent indicating the home occupation must comply with the ordinance, by granting of a home occupation permit, or be discontinued. Mark Michael contends he was operating his home occupation prior to the change of ordinance in 1995, and the previous ordinance did not prohibit warehousing or MN021097.00c PAGEl distribution of merchandise produced off the site, and felt he should be grandfathered in and granted a home occupation permit. Staff s conclusion is the appellant never applied for a home occupation permit. Therefore, the interpretation is, he was and continues to run a home occupation that is illegal (no permit granted). The appellant could have applied for a home occupation permit, but he did not. Therefore, he cannot be grandfathered in and must meet the current requirements to receive a home occupation permit. Recommendation was to uphold staff s interpretation of the ordinance. Comments from the public: Mark Michael, 4190 Eau Claire Trail, said he initially talked to the Prior Lake Planning Department and discussed the idea of expansion with a planner and felt he did not need a permit. The developer and neighborhood Windsong Association were aware of his intention to have a business in his home and had no objections. He felt the City was aware of his intentions when the building inspector questioned his large garage. The Windsong Association requested a copy of the Home Occupation Ordinance from the City and concluded Mr. Michael's business did not need a permit. Mr. Michael started his business in 1989 in another home in Prior Lake and stated the business has been growing since that time. He feels the complainant has misrepresented the facts to the association and the City. Mr. Michael presented a map of the neighborhood showing his home and the neighbors supporting him. He stated he located his family in Prior Lake and plans on possibly expanding his business to the business park. Mr. Michael feels he has complied with the regulations and should be grandfathered in under the ordinance and continue to do business out of his home. Criego: . Asked applicant when he contacted the City with the permit. . Michael said around September of 1992. His house was completed in April of 1993. . There is no documentation regarding the approval of a home occupation. . Michael said he is using approximately 182 sq. feet for storage. Basically he warehouses candy bars, coffee and potato chips. Three freezers contain sandwiches. The office space is 143 sq. feet. The main levels are approximately 800 sq. feet not including the basement. . A driver leaves Michael's home at approximately 6:00 a.m. in a van to start deliveries. Michael has four suppliers with the most frequent supplier delivering to the residence once a week. The trucks are the size of a gas truck and there are no semi-trailers. Other suppliers deliver to the residence every 6 to 8 weeks. Approximately 6 to 8 deliveries are made per month. Stamson: . Asked about the design of the garage. MN021097.DOC PAGE 2 . Michael said there is extra heating, 220 volts for the freezers and ceiling fans to keep it cool. All were installed with the original construction of the garage. Ralph Heuschele, 10315 Thomas Ave S., Bloomington, the manager ofH & H Land Development of Windsong, President of the Association and member of the Board of Directors said he has been involved in the operation of the land development from its inception. He has been aware of the ongoing controversy between the neighbors. About a year ago the Windsong Association appointed a committee to take a look at a variety of issues and were identified as covenants compliance issues. It is his understanding someone on the committee contacted the City of Prior Lake on Home Occupation regulations. The result of the inquiry was that there were no licensing requirement they (the committee) could identify. A report was issued, which does not speak to the issue of city licensing. The Board of Directors adopted that policy for the association. Mr. Heuschele also asked Mr. Frank Worrell, a neighbor of the Michaels, if there were any problems with the business. Mr. Worrell responded he and his wife did not. Planning Director Don Rye commented the main reason this appeal is before the Commissioners is to determine whether or not the conditions of the Ordinance as they exist, been correctly applied in this case. The issue is not whether it is a nuisance or anything of that nature. Comments from the Commissioners: V onhof: . Questioned the Ordinance for 1989. There is no documentation on the building permit. . There are 8 criteria that have to be met under the Ordinance. . The current ordinance states you cannot warehouse products. . Mr. Michael said there is no documentation stating he did not need a home occupation permit. Criego: . There are two issues to address. Does the business fit the ordinance as it now states? and, . Whether or not there was some level of approval prior to the last modification to the ordinance. . It appears there was verbal approval from the City that gave everybody the appearance it was legal. Stamson: .... . The use is in violation of conditions (c) and (e) based on square footage and the activity. . The interpretation of the 1989 ordinance, most or all of home occupations should have had a permit. MN021097.DOC PAGE 3 . Appellant states he was given word from the City that it was not required. It may have been a misinterpretation. Given the testimony by some of the people I am satisfied the question was brought up. The building inspector questioned it at the time and was told the use and did not question the need for a permit. . The City had ample opportunity to question the use of the garage. There is nothing specifically in the ordinance prohibiting the business. . Mr. Michael made a good faith effort to comply. . The two questionable portions of the new Ordinance were not in existence when the business started. . Given the number of written testimonials from neighbors, they had no problem with the business. . It is not jeopardizing the community. . In favor of grandfathering as a use. Wuellner: . When the applicant built his house in 1993, he notified his neighborhood association, called the City who said he didn't need a permit and proceeded to build his house. . You would not normally get written confirmation stating you do not need a permit. Mr. Michael proceeded in good faith. . He should be grandfathered in and the fact he did not have a permit does not make any sense. He didn't need one. . The intent of the new ordinances is to get businesses who are getting too big, out of the neighborhood and into the business areas where they belong. How will the City deal with business who have outgrown the home and do not comply with the ordinances? This is a procedural issue the City has to deal with. . Rye responded the issue is not if you like the neighbor or not, it is being reviewed as a violation of the ordinance. That is what staff acts on. . Does not read the ordinance the way the City does and feels Michael should be grandfathered in. Criego: . Agreed with Stamson and Wuellner that Michael made every intent to do his part in trying to get a permit. . Read the Ordinance a number of times and still gets confused with the language. . Michael currently does not meet the new ordinance but started the business previous to the change and should be grandfathered in. MN02I097.DOC PAGE4 Kuykendall: . Michael did not obtain a home occupation permit in 1989 in his previous Prior Lake home. . The issue is what happens next week when the business doubles in size? When will you go to another location? . Michael responded when the business impacts the~eighbors, with more products and deliveries. . Michael stated he is also a nurse. . Generally support staff s recommendation but understands the situation, but where do you draw the line? When does it become a problem? . Normally the City does not like these types of occupations in residential areas. That was the intent. The Ordinance was written that way based on input from the community. Supports the Ordinance and staff. Criego: . Would like to grandfather the business in at the existing square feet. With any further growth he would have to go to the business park. . Keep in mind why the Planning Department makes these decisions. The Planning Department is doing exactly what they are told to do. Without written proof they have to take it through the required process. MOTION BY WUELLNER, SECOND BY CRIEGO, TO RECOMMEND TO CITY COUNCIL THE PROPERTY AT 4190 EAD CLAIRE TRAIL WITH THE HOME BUSINESS OPERATING BE CONSIDERED A LEGAL NON-CONFORMING USE. Commissioner Wuellner went on to state the home occupation should be grandfathered in because the Planning Commission's interpretation of the Ordinance in effect at the time the house was built the Ordinance did not contain specific language supporting the requirement for a home occupation permit, and the property owner in good faith called the City Planning Department and was told a permit was not required based upon testimony and documentation at this hearing. Open Discussion: Wuellner: . I am in support of the new Ordinance as written and support home occupations as they grow are moved out of the home and into a business district. . It should be pointed out to City Council there should be conditions if this business expands with the number of employees or deliveries or whatever is impacting the neighborhood be moved out of the home. . Rye stated that is a condition of the Ordinance at the time. It says you cannot expand or intensify the operation. MN021097.DOC PAGES ~--',.. ,.~_.....""~..........:..,...,;..:......~. . .. .... . u_ "''';;'''\i~f~';''?;...; / ~i~f~IJf{~"';\;".,/ Kuykendall: . Asked for the definitions of accessory garages and structures. V onhof: . Is there any precedent grandfathering in a non-permitted home occupation? . Rye said there is a procedural issue involved. V onhof recommends to the City Council all new home building permit applications be issued with a line asking if there is an accessory use on the property under this structure. It would be a simple housekeeping solution for inspections. Kuykendall said it would be useful to use a stamp on the blue print by the building inspector stating "No Home Occupancies Allowed Without a Permit", so it is recorded and documented. There was a brief discussion on warehousing for home occupations. The intent is to minimize noise, visual impact and traffic. Vote taken signified ayes by all. MOTION CARRIED. B. 1996 VARIANCE SUMMARY REPORT Planner Jenni Tovar presented the Staff Report. During 1996 the Planning Commission reviewed 41 requests for variances (27 applications). This is down from 43 applications and 78 requests in 1995. The nature of the individual requests and their disposition are contained in the attached table. Of the 41 requests heard, 25 (61 %) were approved, 8 (24%) were denied, and 6 (15%) were withdrawn. The most common request was for a variance from the Ordinary High Water Level (OHWL). The most common request in 1995 was for side yard setback variances. The next most common request was for a variance from the front yard setback requirement. Comments from the Commissioners: Kuykendall suggested bringing the report back with more information showing variances from the past few years, what percentage of the variances were in the Shoreland District, how many were appealed to City Council and reasons for approval or denial. - C. 1996 PUD SUMMARY Planner Jenni Tovar presented the Staff Report. MN021097.DOC PAGE 6 \~~);~a:(~~1:~~~~ ::~1 , .. .. \.~ " .,,::-:.... ~ .~\>.::' ,- "~ .,.....". . " ......". ~ .; L ,. , F ft. . ~: <: \ - L '\.\.-oJ".l\.-JJUU' LV1HHlb Ul.)l1J~l.) H1<1) H<1' ~ UH~ \.1) :'lU~ y..UU ;:,l;lU<.ll;1\. Ui au ll;;:';:, lU<1U five (5) feet as long as a minimum separation often (10) feet is maintained between structures on the lot and adjoining lot. Title 5, Section 5-5-8 of the City Code and Section 6.8 of the Prior Lake Zoning Ordinance 83-6 is hereby amended as follows: ABY home occupation such as art studio, dress making, teaehin.g or the professioflal offi~e of a physioian, engineer, architeot or aeeountant, may ~e permItted a~ an a~cessory use. III residential zoning districts if it complies with the reqUirements of thIS section. The Pnor Lake Plar.ning Commission may issl:le a Home Oee1:lpatioR Permit fallowing a heariag for vffiieh abutting property owners have beeR notified. A. All material or equipment shall be stored within an enclosed structure. B. Operation of the home occupation is not apparent from the street right-of-way. C. The activity does not involve warehousing. distribution or retail sales of merchandise produced off the site. D. The home occupation max shall be carried on persons by a member of the family residing in the dwelling unit and not more than one employee who m not reside in the dwelling unit is not part ofthe family. E. The home occupation shall be carried on wholly within the principal 9f accessory structure. Space within the dwelling devoted to the home occuJ:>ation does not exceed 1 0% of the floor area or 300 square feet. whichever is greater. No portion of the home occupation is permitted within any attached or detached accessory building. F. Exterior displays, 9f signs (other than those permitted under the Sign Ordinance, 94-6), and outside Seetiofl 6.4 exterior storage of materials ami exterior indieation of the home oeoupation or variatiofl from the residential charaeter of the prinoipal struetl:lfe shall not be permitted. G. Objectionable noise, vibration, smoke, dust, electrical disturbances, odors, heat, glare or other nuisance factors shall not be discernible at the property line prodHeed. H. The home occupation shall not create excessive automobile traffic within the neighborhood. Title 5, Section 5-7 of the City Code and Section 7 of the Prior Lake Zoning Ordinance 83-6 is hereby amended by adding the following: 7.12 REIMBURSEMENT FOR CITY COSTS A. PURPOSE The purpose of this section is to provide a procedure to reimburse the City for its cost of review, analysis, and evaluation of development proposals, conditional use permits, comprehensive plan amendments, zoning amendments, and enforcement of this Ordinance in cases where, due to the level of complexity of the application under consideration, excessive costs beyond those normally incurred by the City as a result of the administration of this Ordinance are incurred. The excess costs result from problems presented in review, analysis and evaluation whi~h ..... o ~ ~ ...... Q a: o ~ o S; ..... g: """-.. t- ~ I.LI ct: ~ o Certified Mail December 13, 1996 Mark Michael 4190 Eau Claire Trail Prior Lake, MN 55372 RE: NOTICE OF VIOLATION OF THE PRIOR LAKE ZONING ORDINANCE Dear Mr. Michael: On October 18, 1996, the City of Prior Lake Code Enforcement Officer contacted you about the business located in your home. In that letter, and in a later meeting with you, we discussed the requirements for a home occupation permit. To date, we have not received an application for a home occupation from you. It has also come to our attention that you are still operating this business from your home. This letter serves as your official notice of this violation. Please correct the violation within THIRTY (30) DAYS of the date of this letter. You may do this by either discontinuing the operation of the business, or by receiving a home occupation permit. I have attached an application and a copy of the regulations for your information. Thank you for your prompt attention to this matter. If you have any questions, please contact me at 447-4230. Sincere';\ ~.~ ~A. Kansier, AICP Planning Coordinator L:\96CORRES\JANE\MICHAEL.DOC 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER ------_\ HUEMOELLER & BATES ATTORNEYS AT LAW 16670 FRANKLIN TRAIL POST OFFICE BOX 67 PRIOR LAKE, MINNESOTA SSl72 j , , r i I ' 1'1 \\ l:_: .\J L_ JAMES D. BATES BRYCE D. HUEMOEllER January 13, 1997 Telephone (612) 447.2131 Telecopier (612) 447-5628 Mr. Donald R. Rye Planning Director City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 HAND DELIVERED Re: Mark Michael, 4190 Eau Claire Trail, Prior Lake Home Occupation Dear Mr. Rye: This letter is intended as Mark Michael's notice of appeal to the Board of Adjustment from the Notice of Violation contained in a letter of December 13, 1996 from Jane A. Kansier, Planning Coordinator, to Mr. Michael. We request that the appeal be placed on the agenda of the Board of Adjustment and that we be promptly notified of the time and date of the hearing, and supplied with a copy of the staff report to the Board of Adjustment. Mr. Michael has been operating a home-based vending business in Prior Lake, known as M&M Vending, since November of 1989. The business operation has not changed in any material way from that time to the present. He has one employee who comes to his house in the morning, loads Mr. Michael's truck from vending inventory stored in his garage, and leaves to stock vending machines in various locations, returning the truck at the end of the day. The companies that supply product to Mr. Michael each make deliveries to him once every several weeks. There is very limited traffic to and from his home in connection with the business. At some time in 1990 Mr. Michael determined the business needed more space. He planned to build a new home in the Windsong development with an oversized garage that would provide increased storage space for his inventory while completely enclosing the operation, to insure the least disturbance to the neighborhood's residential setting. Since this would add significantly to the cost of the home, he researched the issue of what local regulations might prohibit or otherwise regulate his operation. He obtained copies of both the county and city ordinances relating to home occupations and discussed his plans with city staff. He was told by city staff that under the existing Mr. Donald R. Rye Page 2 January 13, 1997 ordinances he would not need a permit, and so proceeded with construction of the new home, which was completed in April of 1993. He expected to continue his business for many years and would not have committed to the expense of building this particular house without being assured he was, or would be with the appropriate filings, in compliance with local regulations. When the new home received its final city inspection, Jay, the building inspector, asked the house contractor about the need for the oversized garage. The contractor, M&M Construction (unrelated to M&M Vending), mentioned that Mr. Michael operated a vending business out of his home and needed the additional storage space in connection with the business. No mention of a business permit was made at that time. The issue also came up in 1995 when the Windsong homeowners' association considered amending the declaration of covenants covering the development, including provisions relating to home occupations. The zoning committee, consisting of five owners in the development, researched the issue and obtained a copy of the current home occupation ordinance. This committee also read the ordinance as not requiring a permit for Mr. Michael's business. The planning department apparently takes the position that under the current city ordinance, Mr. Michael's business requires a home occupation permit and he must prol1).ptly apply for one. Mr. Michael has also been told, however, by you and by Jane Kansier, that it is unlikely he would be granted a permit now because his business arguably involves "warehousing" of his vending inventory; and warehousing (not a defined term) is not a permitted activity for a home business under the ordinance as amended in May of 1996. Finally, he has been told that had he applied for (and likely been granted) a home occupation permit under the ordinance as it existed prior to May 1996, his business would have been grandfathered in and therefore not affected by the warehousing prohibition; but the fact he does not have a permit is fatal to the possibility of being exempted from the new ordinance provisions. Mr. Michael believes that, based on his efforts to investigate the permit issue when he started the business, the city cannot now take the position that he should have applied for a permit back in 1990. Moreover, Mr. Michael reports that at a meeting with Ms. Kansier in October of 1996, Jay acknowledged that he had known about Mr. Michael's storage of inventory at the time of the final house inspection in 1993. Mr. Donald R. Rye Page 3 January 13, 1997 Picture if you will the conversation in which he described his business to city staff and was told a permit was not required; is it reasonable to expect him at that point to demand a permit application, in anticipation of an ordinance amendment that could be used several years later to severely disrupt his livelihood? Mr. Michael has made every reasonable effort to conduct his business in a responsible manner and to become aware of and comply with applicable local regulations. He believes that not only was he entitled to rely on city staffs interpretation of the previous ordinance, but that the interpretation was correct. To my understanding, the ordinance prior to May 1996 read: "Any home occupation such as an art studio, dress making, teaching or the professional office of a physician, dentist, lawyer, engineer, architect or accountant, may be permitted..." All these occupations involved services to members of the public who would visit the home, causing a significant traffic increase in residential neighborhoods, and it is reasonable to read the ordinance as being directed only at these types of occupations. Recognizing that the decision appealed from originated in a complaint by a neighbor who has disagreements with Mr. Michael unrelated to the business, and that there are other more visible home occupations in Windsong that to our knowledge operate without permits, we respectfully submit that Mr. Michael's business was a conforming use, without permit, prior to amendment of the home occupation ordinance in May 1996, and that he therefore need not apply for a permit under the present circumstances. Yours truly, James D. Bates JDB:bj cc: Mark Michael DELIVERY SCHEDULE Bev Matic Wholesale delivery once every three weeks between 11 :30-2:00PM Hostess delivery each monday at approx. 12 noon McGarvey Coffee delivery every six to eight weeks at approx 8:30-9:00AM Old Dutch delivers approx every six weeks at approx 2:00PM All deliveries are made from step van trucks similar to UPS trucks or from trucks no bigger than garbage trucks. February 22, 1997 Lydia Andren 5035 Beach Street Prior Lake, MN 55372 Dear Mayor, This letter expresses opposition to Mr. Mark Michael's appeal to allow him to operate a warehouse business at his residence in the Windsong area. When I purchased my lot in Windsong I felt it would be a beautiful residential area. However, in the year I waited to build, Mr. Michael purchased the lot next door and started operating his business from his garage. When I refer to his business I do not mean a quiet office, but a warehouse where he houses a delivery truck in the garage that goes out at 630 AM each day , 7 days/week and where he stores deliveries. These deliveries are made by large trucks, occasionally as many as 4 different trucks/day. These are not ordinary delivery trucks but large semitrailer trucks that back into his driveway. Besides the engine noises, there are doors slamming, ramps being dropped down and carts moving to unload inventory. Definitely not what one would expect in a residential neighborhood such as Windsong. I have close observation of this business since his garage is outside my bedroom window and at 630 AM I am often awakened from sleep. Mr. Michael may have supporters but none of them live as close to this disturbance as I do and it is extremely upsetting. I also believe that Mr. Heuschele is backing this appeal because the association covenants promised Mr. Michael that businesses would be allowed. Mr. Heuschele neglected to keep these covenants current with the city ordinances and Mr. Michael failed to apply for a permit. Now the two of them are trying to claim that since the business is established that they should not have to comply with the present ordinances. Another thing to remember is that Mr. Heuschele is not a resident of Windsong but its developer whose main interest is selling the property in a profitable time frame and not necessarily keeping the quality of the neighborhood. I hope that the Council will uphold the ordinance to prohibit warehousing in residential areas and vote against this appeal. It is important that residential areas remain residential and businesses such as this are operated in the appropriate warhouse districts. If a precedence is set, and the appeal is accepted, who knows what the future residential areas could become. I'll be attending the Council Meeting, March 3, but I understand it is not an open forum and I can not speak. If you have further questions please ask then or call me at #226-2399 or #452-1151. Thank you, a-trw~ C!AH-I M/} Patricia Cook, M.D. 4085 154th St. Prior Lake, MN 55372 PC/pc cc: Allen Greenfield Tom Kedrowski Wesley Mader Pete Schenck o ...... .-J ~ a.. :E o fE V) ct ..&.1 ~ 10- t.u .-J ~" -"<''i:..:.1;,-',:'>.,<".,:w:.,'' "'"':,,>,\:'-,':>- ,,> ^::,_2;<\\;~j ;/<:~:~< ' Be sliei;Milrrinan< . Certified Residential Specialist Edina Realty '-':"i:i'_::;",'-,,'::; "".,::.::::.:. :..:,...;.....:...-.".:.':i..:.'. :-,'r?;;::?:,_:'::'::.'''' Southwest Suburban Office Suile 100 14198 Commerce Avenue N.E. Prior Lake, Minnesota 55372 Office I (612) 447-4700 Residence I (612) 447-4884 FAX I (612) 447-4735 2-4-97 TO WHOM IT MAY CONCERN I was the Selling Agent and represented the Buyers, Mark and Susan Michael for the purchase of Lot 1 Block 5 Windsong on the Lake, now 4190 Eau C laire Trail. Before writing a purchase agreement on the lot; the Michaels made me aware of their intent to operate a home business, that of a vending machine nature. I discussed this with Listing Agent Joan Waund and Developer Ralph Heuschele. When I explained the Michaels intentions to them, they did not feel it was in violation of Windsong Covenants or Restrictions. However, they suggested we talk to the City of Prior Lake. I spoke to Deb Garross at the City of Prior Lake and she said that a home operated business could not have exterior signs, smoke, odors, objectionable noises or create excessive auto traffic and only have one employee. After talking to the City, the Michaels proceeded to write a purchase agreement. We did so on October 25, 1993. I shared with the Developer what I was told at the City and he felt those rules were enough to protect the rights of other Windsong Home Owners. 'J" J" ~':':--;;':;:~':' ':'''- . X","-' ,,"0'" ,./'., -,.~ Edina Realty ",:"".;'",.""""",,;>,,- - Southwest Suburban Office Suite 100 14198 Commerce Avenue N.E. Prior Lake, Minnesota 55372 ;-" ^;^;:-l;f't:t,\:;.,~: ;'"~';\ '~';3.",,",~ "_:."~,.,.:..)'.::L'~",,,,,,_ Office I (612) 447-4700 Residence I (612) 447-4884 FAX I (612) 447-4735 The Michaels then closed on the lot November 17, 1993. Mark and Susan Michael,from the beginning, made everyone aware of their home business. That included the builder and also neighbor, Mark Monnens and City of Prior Lake Staff ( including the Inspections Department). No one at anytime in any of these conversations mentioned a Home Business Permit. The Michaels built a beautiful home. In Fall of 1995, the Developer said he had received a complaint about the Michaels home business from Patty Cook. He suggested a committee be formed to address the situation. I was asked to go to the City and get the code. It was faxed to me December 29, 1995 (copy attached). As I understand ,the Windsong Committee felt the Michaels were within these guidelines. I am also a homeowner in the Windsong Association and am delighted to have the Michaels for neighbors and I see no evidence of their home business. Please do not hesitate to call me with any additional questions. Sincerely, . ~~~ Leslie Marrinan CRS 12/29/95 FRI 16:50 FAX 6124474245 6.7 6.S 6.9 CIl'Y OF PRIOR LAKE ~on:? TEMPORARY STRUCTURES: Teml=orary structures and t~aEers used in conjunction with construction w:,Hk shall be permitted only during the period that th~ constr'Jct:or. work is in progress. Permits for temoorary slructurl9S snail De issued by the City Zoning Officer for a six-month (6) period, orJt are subject to the Stale Uniform BUilding Cede. HOME OCCUPATIONS: Any home occupation such as Son ar. studio, dress ilakir:g, teaching or th& p:ofessiona! office .,1 a ;:>n'tsician, dentist. I a'h"ler. e:1gineer architect o~ acco\Jntant, may ce pernitted as ~:i accesso~ '.Jse jf it complies with the requirements Of this section. The Pnor Lai'\e Planniiig Ccmmissicn rr~i is~ue a Home Occupation Permit following a hearrng lor which abutting ~roDerty owners have been notified. A. The '1ome l)c:upation sr.all be camed an by a nember of the far"'ily residing in the dweiling unit with not mere thar. one em;:>lcyee who is ~ot ;Jar! 01 the fa rr.iiy. B. The home cccupation sr,all be car~led en wholly within the principal or accesscT"j structures. c. Exterior dispiay!;: or signs other than those perrr.ined under Section 6.4 exterior storage of materials ar:d exterior Incicz.tic:n "f tre horre cccupafon or variation from the residential character 01 the principa' struc:ura shail not be permi:ted. D. Objectionab:.; r:oise. v;braHon, smoke. dust, electrical d:sturbance. Mors, heat or giara shail not be produced. E. Articles not produced on the prerr:Ms shail not be sold on tl1e premises, without a specified permit. F The home OCClipiltion shall MY creat9 excessive a~tor:-:C::ile t-affic withir. the neighborhooc. MANUFACTURED HOMES: v.anL'factured homes may be located in a R,4 Mbced Coae Residential District uncer the following ~onditions: A. Platted. Deveopment 'n whic;, t'le .arr;lie pa:cef is to be divided intc individuai iots to be sold sepa~ately shall contoml to all requirements of tha City for subdivisions as s-tt forth in Title e of the Prior Lake City Coda. s UnpiaMd - Manufactured homlll parks ;[" which sites wdl be :1lade ava;iabie for rent s;,a!l conform to the P.U.D. Section o~ ~he ZO:1in:; C~de Sectir.m 6.11. C. InstallatiorJ . A~prova: ct rv~a'1!.lfactured Hous:ng Developments shail be basad UPO" installation req'Jirerr,bnts whicn require an a:1choring and support system as ::Jefined anc approved by the MinT1e5::ta Liepar.mer.t of Acministra:ic'r,. 8uilding Code DiviSIon rules for manutact.Jred rousing support and ,ie down $~lerns au~hcnzed. by Minnescta Statutes Section 327.31 tf,j 227.:34, and finlsned ;n a cole:' compadbia with :hat of tne dwellllig. Permils sr1all be required ~or the installation Qr alteration of c.;1Y dwelli1g or any accessory bu:idin,;, cr strUC!'J~e as set forth in Title 4 of tr,e Prior Lake City Code. Sac:iet: 6, pege 5 FEB 5 I9IJr Ui February 3, 1997 Mr. Don Rye, Planning Director City of Prior Lake 4629 Dako1a Street S.E. Prior Lake, Minnesota 55372 Dear Don: Don, my namf is Russ Schmidt and my residents is 4095 Eau Clare Circle, in the Windsong area of Prior Lake. The purpose of my letter is to express my viewpoint on the home business conducted by Mark and Sue Michaels, located at 4190 Eau Claire Trail Northeast. My wife Diane and I have no problems with the fact that this business is being run from the resident in our neighborhood. In fact, we hardly notice that a business is being run from this resident, because the occasional delivery truck is seldom seen or heard. Also, this business has been going on for a number of years and has not been a problem until a new resident moved into th~ neighborhood. This new home-owner from the start seems to have a problem not only with the Michaels, but a number of other people in 'the neighborhood and the Windsong Association. For this reason, any protests are more in the natural of a grudge than a real concern for the business activities. Home-based business activities are becoming more common in all areas and are an important part of the nations economy and should not be tigh1ly regulated by govenmenml bodies. If a large number of vehicles or traffic become common to a home-based business it could be a problem 'that needs attention, but in this situation it is not a problem. 'We fully support the Michaels and :see no reason to place a burden of moving this business out of their hl:)me at this time. Most of us in the neighborhood are willing to cooperate with our neighbors and live together in peace. Unfortunately some are not happy unless they can find fault with others. Sin cerely ~~ Russ and Dia~e Schmidt Subj: letter to Building and Zoning committee Date: 97-02-05 12:15:10 EST From: Lisa G DC To:MMVENDING Letter to Building and Zoning committee D m@@i UW~~ ~ FEB, 0 /!m II ~J I Dear Sirs: Just another perspective from a nearby neighbor...We have lived two ouses away from the Michaels since they built their home and moved into Windsong a few years ago and we have never noticed a problem with their home business. We have not noticed any trucks parked outside of his house for any length of time nor excessive traffic related to his business which could detract from the neighborhood. Neither have we heard any noise associated with his business let alone excessive noise. Mark Michael carefully constructed his home to accomodate his business and we are thrilled that he is in our neighborhood. We hope that his livlihood will not be jeopardized by laws which were enacted after he built his house and began his business in his home. We just don't see a problem with the Michaels running their business out of their home. There should be a clause which allows exceptions like the Michaels to be grandfathered in since their business is neither disruptive nor depreciating to the neighborhood. Home businesses are the thing of the future and should be encouraged--not stifled! Sincerly, Lisa Garborg (4090 154th street) ( NOTE: This message contained special content that can only be viewed with the latest version of AOL. To find out what you are missing and get this FREE software, select Go To on the menu bar, then Keyword, then use Keyword: UPGRADE. J 2-6-1997 America Online:MMVENDING Page 1 .... /1 . ...<^(;7S-/ / c; <17 ./' / ri I l ' . , !, .," ~ ---""..' , /' , ) /' ,,} /" ' / I ' / {I /j./ ) d,LLU. &: -.:.,,'ct' V/~,L'eL/&,(/ tf1- (' c~7;)) 7.7) -<-'.~~~ '\ ! )-./ \..-/, :J .... (,-""-,, '), 1/ \ j ,,',' ," .-\ ) / ,[!" 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FBI 61l11Jf ~ To: Mark & Sue Michael From: Larry & Sharon Williams 15520 Calmut Ave. Prior Lake MN. 55372 In regards to Mark & Sue Michael's business that is run out of there home, we do not have any complaints. They always keep there truck parked inside and the appearance of there home is always very clean and neat. I do notice deliveries from time to time but they are not bothersome to us, because the deliveries never take to long. As for Mark & Sue Michael they are very courteous about the doings of there business, they have often asked" if we were ever bothered by there business". Again we had no complaints. We feel that Mark & Sue Michael are the kind of neighbors we appreciate, because if we did have a problem we feel that we could confront them with it, and they would take immediate action. We have a very beautiful neighboorhood,we do not feel that Mark & Sue Michael's business offends the neighborhood in any way. /' . / / /~I ~ <<Y#Sii:o Sincereu 7 'A' C;:!//t:tLC''lL iu) J!tl??~/t:;;- Larry & Sharon Williams February 6, 1997 To Whom it May Concern, It has come to our.attention that there has been a complaint filed concerning a home-based business in our association, Windsong on the Lake, against our neighbors Mark & Sue Michael. We have lived directly across the street from the Michael's since they built their home and business over four years ago. In that time w have never noticed a problem concerning traffic, noise or safety connected with their home-based business. Theyhave proven themselves as conscientious homeowners and excellent neighbors and friends. We completely support them in their future endeavors as home- based entrepreneurs. Frank and Linda Worrell 4185 Bau Claire Trail NE Prior Lake, MN 55372 ~~~ cr~ (! /tJ~ February 1, 1997 To Whom it May Concern, As a member of the Board of Directors of the Windsong on the Lake Association, I would like to state my support for Mark and Sue Michael's in their effort to continue their business in their home. Our Association has reviewed the way the business is conducted and they have our full support. ~~~ Frank Worrell 4185 EC;lU Claire Trail NE Prior Lake, MN 55372 THE CRAIGS 4167 EAU CLAIRE TRAIL PRIOR LAKE, MN 55372 February 04, 1997 The City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 To: The Planning and Zoning Committee: It has come to my attention that you are reconsidering the opportunity, of a neighbor of mine, Mark Michaels, to run his business out of his home. He has successfully run this business for three years with no inconvience to the neighborhood. Mark ran his business without our knowledge, until one year ago when we became acquainted with him. As far as we knew, Mark worked outside the home. We live directly across the street from the Michaels and have for three years. We are unaware of any problems Marks business may cause to you or our neighborhood. My wife and I have been members of this community for twenty six years. We can only hope you reconsider and allow the Michaels to continue their business so we can continue to spread the word on what a great city Prior Lake is to live in. SZJ' ~ Wayne cra' {;.cott and dYl.11e. MiP.~eJt 4143 EAU CLAIRE TRAIL NE . PRIOR LAKE, MN 55372 To whom. r.t. ~ COn.c.eJtrl., d!t. haJ. ~ come. to OU/l. attention that. Ovr. nei&hboltA Malik and ~ue Mi.clw.ei have been aJ.kM to move theut. home baAed MCrleAA beca.we o~ the i.nl::Jwc!.uction o~ a new d.g; on.d.n.a.nce ~air1.At. r.f:. c!Jt. U rYlJ:j urulen.A~ that. the d.g; ~ that. theut. MCrleAA AOmehow r.n~ with the euenydazJ IlOUtlne o~ the ~hbonMod. app~ thu. U due to nDUe ~1lOm. Mr.vexy bw.ckA to theut. homE- We have fuJed aCIttJM the Abteet. ~1lOm. the Mi.clw.eiA ~/t~;j Uvtee ;jeaJtA nDW and have n.eveJt been ~ r.n a.rt;j wazl hg the opexa.tion o~ theut. Mi.nJ?M. d!n ~t. ;jOU wouM. nDt. euen fmow. ~ /la.Yl a MCrleAA hg ~oo~ at. theut. homE- d! am. home ~ the dazJ and the nDUe and bto.Wc r.n OUlt nei&hbonMod U rrUrUrrtaP. aJ.i.d.e ~1lOm. the E~e bw.ckA, the G~enwood and CuRP.Lsan bw.ckA and an OCLa.Ar.on.a.~ Mr.vexy ~1lOm. upA a.rt;j MtlJeJli.eA to the Mi.clw.eiA EO VfJtt.ua.e~ unnotlcd. We ~r.ve r.n a ~1ti.erulP..?J ~hbonMod wheJte ~;j euenybo~ Eea a~o~ with and Auppo/ta each. otheJt. M~ peop~e haue home baAed hwineA.AeA and we Aho~d ~ JUAt. by to JleApect. each. otheJU. plliva.c:J and tNwt ~h.t. to eaJtYL a e~. We think we Apea.k ~/t ~ euenyone r.n thu. nei&hboMoOd when we Aazl that. the Mi.cha.ei ~ aJlE. vexy nice peop~e who Aho~d /l.etar.n the ~h.t. to continue the opexa.t.r.on o~ theut. ~ compa.rt;j r.n theut. homE- ~1nceJtEP.;j, ~cot1: and CLnne M~~eJl DATE: February 7, 1997 TO: To Whom It May Concern FNJ)M: fuck& KeHy L~)V1 k KE: .M & M Vendmg -4lYt) bau (;i!Ufe 'ft. :Nt .PrIor Lake, tviN 55j7'2 ~Ve=f-esid.e.aHU~.t:au{ja.!re 'lWl Nhm-PrlGf .LaKe. !vlark.and ~ Atl1cllael,o\1m. and. operate M & M Vendmg out of theu home Just down the street trom us. it is our understaOOmgw.Ben the MlC-naelsbwil theu.1lome-1t was O.KJ:Or.ihem16~~U>meu- busmess irom theu home. They have a large SIze garage tor theIr company vehIcle and a oome.~~ ~of.e.si4,;}Rce.~~~~5smcevhanged,tmt{aey~1liways toHowed the mles and they should be allowed to contmue to operate theu bus mess as usual. We have never telt that theIr busmess was a Ulnsance or a. dIsruptIOn to the nelghbor-00G4.... they are ~.~ to mSl,lr-e ttunr b~~&lRe&.S~.~.i.reptm~~rage and deilvenes are kept to a mmlmum, in no way. does thIS home operated busmess d.etract-4rom the i;)e1.\llty..()f~J)t.w.~ mm.ll' ~ri1ood. M.&.M \,'enchn2 should be aiiowed to contmue \\'1th busmess as was ongmaily mtended and promIsed. KEVIN & SUE KIMBALL 4136 EAU CLAIRE TRAIL PRIOR LAKE,.. MN. 553.72 TO: ZONING DEPARTMENT OF PRIOR LAKE WE ARE WRITING TO YOU, IN REGARDS TO THE SITUATION INVOLVING THE MICHAELS' HOME BUSINESS. WE ARE AWARE OF THE BUSINESS THAT IS RUN FROM THEIR HOME, AND WE WANT YOU TO KNOW THAT IT HAS NEVER BEEN A PROBLEM. I DRIVE PAST THEIR HOME FOUR TIMES DAILY, STARTING AT 6:45 A.M. I THEN RETURN BACK TO MY HOUSE BY 8:25 A.M.. I HAVE NEVER RUN ACROSS ANY DELIVERIES BEING MADE BETWEEN THESE HOURS. I ONCE AGAIN PASS THEIR HOME BETWEEN 2:30 P.M. AND 4:00 P.M., AND I HAVE NEVER RUN INTO ANY VANS OR TRUCKS MAKING DELIVERIES. OUR POINT HERE, IS THAT THEIR BUSI- NESS IS MANAGED SO WELL, YOU DON'T EVEN KNOW THAT A BUSINESS IS IN EXISTENCE. THE MICHAELS ARE AN ASSET TO THIS NEIGHBORHOOD. THEY HAVE A BEAUTIFUL HOME AND KEEP AN IMMACULATE YARD AND WE ARE PROUD TO HAVE THEM AS OUR NEIGHBORS. SINCERELY, KEVIN & SUE KIMBALL ~ February 3, 1997 Mr. Don Rye, Planning Direotor City of Prior lake 4629 Dakota Street S.E. Prior Lake, Minnesota 55372 Dear Don: . Don, my name is Russ Schmidt and my residents is 4095 Eau Clare Circle, in the Windsong area of Prior lake. The purpose of my letter is to express my viewpoint on the home business oonducted by Mark and Sue Michaels, located at 4190 Eau Claire Trail Northeast. My wife Diane and I have no problems wi1h the fact that this business is being run from the resident in our neighborhood. In fact, we hardly notice that a business is being run from this resident, because the occasional delivery truok is seldom seen or heard. Also, this business has been going on for a number of years and has not been a problem until a new resident moved into th~ neighborhood. This new home-owner from the start seems to have a problem not only with the Michaels, but a number of other people in the neighborhood and the Windsong Assooiation. For this reason, any protests are more in the natural of a grudge than a real concern for the business activities. Home-based business activities are becoming more common in all areas and are an important part of the nations eoonomy and should not be tighUy regulated by govenmental bodies. If a large number of vehicles or traffic become common to a home-based business it could be a problem that needs attention, but in this situation it is not a problem. We f1_II!y support the Michaels and see no reason to place a burden of moving 'this business out of their home at 'this time. Most of us in the neighborhood are willing to cooperate with our neighbors and live together in peace. Unfortunately some are not happy unless they can find fault with others. Sinoerely Russ and Diane Sohmidt Feb. 6, 1997 To Whom It May Concern, In October 1995, I was appointed by the Windsong On The Lake Board of Directors to serve on a committee to consider covenant enforcement issues . One of the major issues was home operated businesses. A homeowner, Patricia Cook, had complained about her neighbor, Mark Michaels home operated business. In December 1995 each member of the above mentioned committee received a letter from Patricia Cook expressing concern about the business her next door neighbor, Mark Michaels, was conducting. Our committee met shortly thereafter .We contacted the City of Prior Lake and requested that we be faxed a copy of the city codes as they relate to home businesses (copy attached). We also reviewed a copy of the Windsong On The Lake covenants. It was the opinion of the committee that Mark Michaels was not in violation of the City of Prior Lakes code as it relates to home occupations (section 6.8, lines A-F on attached copy). Furthermore, we concluded that he was not in violation of any Windsong covenants. Therefore, our recommendation to the Windsong Board of Directors was that Mr. Michaels was to be permitted to continue his home operated business. The Michaels have been very open and up-front from the beginning relative to their intentions of running a home operated business. The Developer, Realtor,Contractor and the City were made aware by the Michaels that they were to be operating a business from their home. As a long time home owner in this development and a neighbor of the Michaels, I have no problem with their business being run out of their house. I pass by their home several times a day and at all different hours. I see no exterior signs, no smoke, odors, dust or objectionable noises. I also do not notice any excessive automobile traffic in the neighborhood. Their house is certainly not an eyesore either. In fact, their house is one of the nicer homes in Windsong and you would be hard pressed to recognize that a home business was being run out of that residence. Sincerely, . ~VW!NWON\ '..".n"__."'.. .' -_.',_,_ .",--"'. ' ' '" ._' _' ., ~...2.:.:.;s;",,~...:::;;r~:':::.","',j;.:.,~~' ....~.:...."......,:.:~~~ .. .~.. _,;L..;'~.bl.,'':;'' , . -' ,'. '.. ~~~~~!.:'--:..c..;:~,c..~;,:~..;:~..:..~'i..:~-.i..'J..":..~~;~;,,;;..~.~~,,.~,.--.~~~~iiJ"',..:.:......:....,.-,-_:.~.'~<-'" . '.. ,., '-, ". -. '-.-' -.-'~'~~.'_;~:.~~-.-:~~ ,,-J.~'~i:'~.:~~;;:~~~~I~i"~~-~i,~L''''''~~~'':&-2.z~t"::,~.;..:;,~~~;~,~, -,~'_'i~:~,,~ .c;;.....'---....~&it:i;,~~- , .' ._;."_.;:,,,;___,::-,': ";':f~""'_'r.-'s-'~,';'.;f~"~~",*__':";'~;ro.;~':',:' ;';.';~:~":''.;;, .~ _. -. - ;'';'~'''';''""'';'J.i;:.-c':-'':-r'J_~-;,'....~b,*,,~:~j,-~\.;;,,,;,'t>J-;,;.-;,.; . - ~..Im: ....~:,'''''m".!;..1....::.;''_- ~~~h__-n~ .:....;,~., ~,;;",:,..:- ___:__ '':''r.~~.'c ,';'"",_:;<,;,;''-_'';i;i ,,_-_~';..:~<,-d._,i"' ;"..::~;j..:~.;'.;-,;~~::>L~ ,.~ ';". ,.,- ,'C..- ,.:,.'..-' i . ''I' 1 ' ....~~;~_ib-h._-L~~~-'; ~1LiL '\-.Jl/2l_I_~___h_'h__._hh_n_ __ n_________~____ . ~Ujf _/0.1J_W~ULJ(/)lCI tJ.-?1 tILL _~~_~~__oL__02k(2-hO-I1.JYoi1.Lf!i '17&, ! ~ f.i aAi (L ~~ vA..{ lit ai ()-itA ("(JeLl 7i1 ~ I Lr7 ) M /2 CVYI d t.P C-Lt "If y/( (fz cuf) (JAL (;r ~ a :{f/nJ ? 2~y rue( C3 ~ \ /j1t'111.c. JhM Uw~ C1CL0J /J1C~r _____i/Y1-~-Vv (1....ffiA ,turf. (Ctj~1 dClLf:J AG'U vt.M O/luJ-U'CeL,~., /rJ ( C---W ~ __ l"tV~:u:~fu14 /l1t /1./n~/:J(L(!f {vn CLwr. /VLG~h i '-eYh &~ (I.n d '<1.Lt /}/l 0 . ~~Lc-L t)./nq ( {:']t,(!L.~llL_r:.~Lth<--~J / c, tJ ---r f /1",-,/1 / ___------!Lv, y \..f 'V ._,,;.;-~~~~,~,l~o ..:..,ilt4'-'~"'-" '<S.. ~~~~ui.~.ri....:,~~~~~~i;i.J.~1 c~~.:,-.,~"':r..:',- .. ',', ~''-' ~./ "" -~ : ,~ .-'<1", .." ., ''';' . < :~. i&Hi..~~~~~~,;!o:,~;i~;":~~~~:M"'~-~:...~1 .,<!"'S<~!~.~ .";,~~-~~,,,.....:....,:. ",-,:.~-.!,_,_:~-, 'c.'" - ..;".....;....:.;~". ~~.:: ' -,-->!::;~:--;.,~--;;.:-:,,; I ~). C^r1~Cfj'lR-,~J- I J . . ~!;1a~(1 Mark & Ann Monnens 4070 Eau Claire Circle NE Prior Lake, MN 55372 612-447-6490 February 9, 1997 TO WHOM IT MAY CONCERN: This is in reference to Mark & Sue Michael running a business from their home. We have been their neighbors for over three years. We have NO problems with them having a business in their home. Everything is kept inside. Very neat & well kept home. We do not notice any extra traffic or noise in the neighborhood! We couldn't have asked for better neighbors as far as keeping there yard & home cared for! Sincerely, Mark Monnens/mt:L /'i721/j/~ Date 2 ~~ i ro. 9 7 Ann Monnens .C1JJ@VI)t'YJ}7JJ7}O I Date (~ . 9 . 9;7 ROBERT W. THOMPSON 4090 Eau Claire Circle Prior Lake, Minnesota 55372 Home: (612) 447-3242 Office: (612) 830-3397 30 January 1997 To Whom It May Concern: My wife and I have lived next door to the Michaels for almost four years. We live in the house directly to the south of them. At no time has their home business created any problems that we are aware of On rare occasions, we will see the truck, that they use for making deliveries, going into or out of their garage. If it were not for that, we would not even know that they carried on a business. There has never been any problem with noise or excessive congestion in the neighborhood that we are aware of Qw Q. i '), .---1/ ' r~ II '~""~ February 5, 1997 To Whom It May Concern We believe Mark Michaels has been an excellent addition to Windsong, and we have never received any complaints about his business, except from Patricia Cook. Sincerely, Jo dBud Watmd Listing agents of Windsong on the Lake Edina Realty JW/jp 02/19/97 WED 10:24 FAX 612 452 5550 C K S & F Thom"!i J. Campbell Roger N. ~nutsOn Thom~ M. Scott Gary G. Fuel\:; James R. Walston Elliott B. Km:tsch SUIl$an Lo:a Pace CAMPBELL, KNUTSON, SCOTT & FUCHS, P.~ (Q) /(y ~0> Attorneys at Law fJ= If (612) 452~5000 Andrea McDowdl PLIc:hler Fa-x (612) 452-5550 MlItth~~~'F~~~\: Mmllllcritc: M. McCurnl' Ot:l1r~e T. Stephcn~L1M "."'I$lli,,,,,on~J in \lIt..c::llnliln October 1, 1996 MEMORANDUM TO: Mayor .Andren, City Council and City Manager ~CONFIDENTIAL... . ATTORNEY-CLIENT ~EGED'" FROM: Suesan Lea Pace RE: Past Practice Concerning Application of City Code Provisions From time to time the issue arises about how to apply a particular City Code provision in light of past practice. Attached is a case, Frank's Nursery Sales. Inc. v. City of Roseville 295 N.W.2nd 604. This case is often cited by City and land use attorneys because it stands for several important propositions; one of which is that a City is not required to misapply or ignore its ordinances even though it may have done so in the past. In Frank.s NurserY the Supreme Court found: The law in Minnesota. is clear that administration of zoning ordinances is a governmental not a proprietary function, and the municipality cannot be estopped from correctly enforcing the ordinance even if the property owner relied to his detriment on prior City action. rd. at 604. The rule stated above is not limited only to situations involving the City's zoning ordinance, but applies also [0 other sectioDS of the City Code. I thought you might flI19- the case interesting reading. Suite 317 . Eagandale Office Center · 1380 Corporate Center Curve · Eagan. MN 55121 141 002 LLI ..... ~ LLI (I) o a: -- ~ :z c::t e: .\ -~ - " ., .' .', j- " I .: .1 : , I .' .. t ~ '" 'I j, . ,'j . . v' " i t. , ...: I i i t t I \ , <:. i I \ \ I ! \1 I: \ ; Ii i. . , , II , I' I , \ : . ~ \ ; '\ ~ 1 , 'd ~ ~ ~ . .' , ~ ~ .. I 604 Mintl- 295 NORTH WESTERN RErORTER. 2cl SElUES tne'issue have reached contrarY conclusions. Compare Thoruon v. MiJ..II&u1cee Ii Subur- ball Ttal2sport Co., 50 Wis.2d 231, 201 N.W.2d 745 (19'72) witb Paige Y. Billg" ColJSt. Co.; 61 Mich.App. 480, 283 N.W.2d 46 (1975). I find the court's reasoning in Paige com- pelling: ".A parent's exercise of authority over his or her child involves more than discipline. , It ine1udes the providing of instruction .- and education so that a child may be . aware of dangers to his or her well being. ':vie fmd it impossible to separate such' general phenomena. as authority and su- . pervision. In order to adequately super- vise ~ child, .e'lery parent knows that , some amount of discipline is inextricably . involved. The tight to exercise authority . over a child certainly includes the respon- sibility to supervise that child's behavior. * * . . . , Each patent has unique and inimitable methods .and attitudes on how children : should 'be 5upervis~. Likewise, each child requires individualized guidance de- pending on intuitive cOncerns which only . a parent can undentand. Also, different cultural, educationa.l a.nd financial eondi- , tions affect the manner in which differ- , ent parents supervise their children. Al- "lowing a. cause of action for negligent .... supervision would enable oth~, ignorant of a. case's peculiar familial distinctions and bereft of any stanc!ards, to second- '. guess a parent's management of fa.mily affair.! considerably beyond these statut.>- . ry protections. '61' Mich.App. at 486, 233 N.W.2d at 48--9. See Bell v. Schwartz, 422 F.Supp. 257 ,(D.Minn.19'76). 1 w0l,11d hold that where ~he , alleged negligent conduct is a parent's fail. ut'e to supervise his child the parent is im- mune under the "parental authority" excep- tion if, as here, the omission is not outra- geous. .' .SHERAN, Chief Justice (diS5$nting). . I agree with the dissent of Justice Roo gosbeske. OTIS, Justice (dissenting). I agree with the dissent of JWltiClll Roo- gosheske.' PETERSON, Justice (dissenting). I agree with tbe dissent of Justice ~ gosh~ke. . ~lItasn~ FRANJ{'S NURSny SALES, JNC.. Respondent. " v. CITY OF ROSEVILLE. et al.. Appellants. No. 50167. Supreme' Court of Minn~ota.. July ,3,)980. Applicant brought action to compel city and its city manager to issue ,a building permit to allow it to build a store on land it owned in the city. The. District Court, Ramsey County, William 'Murphy, J. (1l.eL), entered judgment in favor of applicant, and defendants appealed. The Supreme Court. PetertlOn, J., held that: applicant's retail. business, which consisted primarily of the sale of la~ garden and plant. 6upplies but which also included some craft items, was a ''lawn Bnd garden center" witbin meaning of zoning ordinance. Affmned. L Zomng and planning $:a"S Administration of zoning ordinuce is a governmental not a proprietary function; thl.1S, city cannot be estopped from correctly enforcing a zoning ordinPce Ilotwithstand- ing a property owner's reliance upon prior ineorrect interpretations of the ordinanee. - ~~ I I 2. a ( ior to 3. te m \f- st ~ t) 5. S~ ~ 6 " s a s c r : ~ :\ .'t -: ", .~ .l } 02119/97 FRANX'S NURSERY SALES v. CITY OF ROSEVILLE Minl'i. 605 Clw... )IIDa., ZlI5 N.W.24 104 ' Carlson, Fuller &: Finney, Stuart L. Fin- ney and Mark E. Fuller, Bloomington, fo~ respondent. .-,-.-----' 2. Zoning and Planning .,602 Interpretation of a zoning orQinarsce is a. question of law for trial court, and opin- ion of local zoning authority, while entitled to consideration, is not binding OD the court. 3. Statutes ~ 188, ' Courts generally strive to construe a term according to itt plain and ordinary meaning. 'v. Zoning and Planning .. 232 Zoning ordinances should be ,construed 5~~Ct1y against city and in f~vor of proper- ty- owner. 5. Zoning and Planning ==-231 Zoning ordinance must always be con- sidered in light of its underlying policy. 6. Zoning and Plannini =-279 Applicant's retan business, which con- sisted primarily of the sale of lawn, garden and plant::-suppUes but which also included Bome craft items, was a "laWll arid garden center" within meaning of zoning ordi- nance. :ity ling d it urt, et.), alld ,urt, Jtail the but -&5 a ning Syllabus by the Court, 1-2. A city is not estopped from cor~ rectIy enforcing a zoning Qrdinance not- withstanding a property owner's relia.nce upon prior incorrect interpretations of the ordinance. However, the interpretation of a zoning ordina.nce is a question of law ,for t.he t.rial court, and tbe opinion of ,the local zoning authority; while entitled to conlider~ a.tion, is not binding on the court. 3. In this ca.se the trial court wa:s cor. reet in rejecting the at)"! interpretation of the zoning ordinance; and the conclusion of the trial court that reapondent's plannttd store i:J a "lawn and garden" center within the ordinance is upheld. ' } ~. ";,.'" ~~ : i '. i .~:. ,dsa :~OD; <<tly tazr,d- prio" ,allc:t. Peterson. Bell &. Convene !Lnd ,Robert, C. Bell, St. Paul, for ~ppe1l8nts. 1. No more Ulan lEi9b to 18% of Frank's "les nation\llide are craft related: the remainir15 82% to 84% of salu relate to lawn and Barden and omer horticuJtun1 productll. Heard before OTIS, PETERSON, and SCOTT, JJ.. and considered and decided by the court en bane. , ' PETERSON, Justice. Plaintiff, Frank's Nul'5er)' Sales, Ine. (Frank's). brought this action to compel de- fendants City of Rcseville and its city man- ager, James Andre, to issue a building per- mit to allow Frank's to build a store on land it owns in the city. The trial court conclud- ed the city's denial of the permit was arbi- trary and capricious and ordered defendants to issue aU necessary building permits for the construction of the proposed store.. De- .' fendants appeal from that order. We 'af. firm. Frank's operates retail stores which deal mainly in lawn, garden, and plant supplies but also sell some craft items.l In Mareh 1976, Allied Stores, Inc. (Allied), owned property known as ~aBelle's SubdiviSion, located at the intersection of Highway No. 36 a.n~ Fairview Avenue in RDseville, .Min": nesota. Allied and M &: M Development Company, (M &: M) wished to build a La- Belle'is Catalog Showroom on Lot 2 of that subdi'lision and commenced negotiatioM with Frank's and the Learning Tree Center to be included in an expanded develo!l~ent. Frank's thereafter acquired Lot 1 cif "the subdivision. After det~ining that rezoning ,of,.,the subdivision would be necessary before' de-, velopment could begin, representativ:es of Frank':s and the other businesses met With the lL8$istant city manager aftd other city officials and staff members to disc~ the proposed development and application' for rezoning. Application was made by Allied:. and M &. M on July 7. 1976, to rezone tm-ee lots in the subdivision. They requested tba,t Frank's lot be rezoned irgm 1-1 (induStrial) to :B-1 (limited busines:s).2 The permitted a. Section 8.240 of the Reseville City code Ibu permitted IISes In &-1 limited business zones .5 medical and dental HMCCS. bQsiness and pro- . fessional ofnc:es. hoapitals, sanitoriums and { l.~ P I i ~\ I. it.: l'r 'I \:, I \i ~ II i I, " II \i ji ~ I i 1- ~ ,II I I , I . I: . \ ! i \1 .i l . , ~, . 'f' ~ ::: ';\E., I. . : I.' ;L ,I , , , . : i ~ , :!; I, i, 6061 Minn. 295 NORTH 'WESTERN REPORTER. 2d SERlES , , , Usd: in; a B-1 zone include operation of JI~wn'and garden" centen!o During late JUly. Frank's representatives met; ~t.h city staff members to provide them.~~th information about Frank's' opel'- ations" and facilities. Based 011 that infor- mati~Il, the staff subznitted to the planning c:omnlission a. report .that referred to Fran~a as a. l'nursery apd garden". store. The' .report was c:onsidered at a planning commission bearing. In addition a repre- sentatiye of Allied at the bearing presented slides that depicted the facilities and' opera- tions' of ,LaBelle's, Frank's, and the IAarn- ing Tree Center. The commission was sup-' plied with 'copies of Fral1k's 19'75 annual report; which inchlded' a breakdown of sales by product category, and one of FratUc's representatives informed the commission of the percentage of sales related to craft iteEZlS. Also present at the' commission hearing, however, were a number of citi- zens who exp~~ssed concern about increased tn.f~ic as a. result of the p~posed develop- ment, which is adjacent to a residential area. The commission recommended. denial of the' application for rezoning, but Frank's asserts that at no time during tbe proceed- ings' was it informed that it would not qualify as a lawn and garden center if the rezoning to B-1 were granted. DeSpite the action by the commission, ap- plicants made the same presentation to the city council. The council was provided with the same materials and sa.w the ame slides.. Again questions were raised about the per- .ntage of crafts sales, and again a. number of, ~tizens expASSed concern about traffic as a result of the development. :At trial witnesses for Frank's testified. tha.t whlle ~ity officials asked about other than lawn and garden merchandise, sold. at no ,time did anyone suggest that Frank's might not come within the pc~itt.ed use of the B-1 ZOlle. Frank's witnesses also testi~ .. " rest homes, private clubs or lQ4!ges, belLuty pap lors, sn:enhoUSll$. and lawn and 8arden ce~ 'ters. No definition of the U". Il: given. fied that at no time was Frank's informed tha.t it would have to limit its sales to products that were strictly lawn and garden related nor did it make promises to that effect. One witness tatified that Frank.s could not have promised to limit its mer~ cbandise because product mix was adminis- tered on a ccmpany-wide basis and the com- pany would not operate one atore in a. COtft- pletely different fashion from its other stores. Finally, each of the witnesses for Frank's. not all of whom were employees, '.... teStified that in his opinion Frank's was a lawn and. garden center. Mayor June Demos testified, however. that sbe had raised do~bts at the council bearing that Frank's was truly a lawn and garden center because of its craft sales and "supennarket-like" operation. She testified sbe asked the city a.ttorney at the meeting whether items not plant. related. could be sold in a lawn and garden center in 8. B-1 :t.one. The city attorney responded that the city had the right to define the term "laWll and garden" center and that Frank's would have to abide by the ordinance when it &ought a building penuit. ' Demos further testified she stated at the hearing that she felt only lawn, garden. and indoor horticul- tural items could be sold at a lawn and garden center and that Frank's representa- tives stated they would a.bide by the city's definition. Other witnesses for the city, resident!! who had attended the hearing to protest the development. also testified tbat' those in attendance bad raised questions about Frank', inclusion' within the B-1 (limited businas) zone, complaining that Frank's was a bigh-yolume retail store more proper- II located in 1I. B-2 (retail business) zone.1 The residents tatifi~ the COUDcU and Frank', assured them that Frank's would comply with the ordiDance. On September 13, 1976, the council ap- proved :the rezoning, with Demos caSting 3. Section 8.300 of the Rgsl!lvlUl!l City COde listS 6S permltted uses in a-z retail business dis- tricts. Among chose uses are poriSt shops, prden supply and fRd stores, hobby shops, spordng goodS stores, and varlety SUItes. the c four 0: men t the f reZOl: cludo; B-1 : AM fina.r the ~ post.: plet.i sUlc 0:- wit:: of . zen.:: den' esU law- eve: ueu est.:; 'de!. no def ( set ap; de: to ore th-. B- te Fr po; tr lS Y' ~ a:' d. s.; t: , . 0;- . ~ ... t :; '- rtned :l3 to ~en that aDk's mer- aiDis- com- com- other !S for )yees. ~/ lIIILS a reyer, , )uncil I D and ~ and .tified ~eting Jd be ~ B-1 i a.t tr." "la: 'tJIo'OU Id. len it JZ'tker at she rticul- n lLnd sents.- city's .idents !St the )Be in about irnit.ed I, 'nu's ,roper- fDZle. ' il and woald' c::n a~ :astiDg ,de Usts ess clis. sh"-- sh ~.'. FRANK'S NUBSERY SALES Y. CITY OF ROSEVILLE Minn. 607 Ole as. MIIm.. 2115 ill W..2d 604 the only negative vote. The council set four conditions, however: that the develop- ment be substantially in accordanee with the plans presented to the council; that aU rezoned properties be deed-nstricted to ex- clude all uses except those permitted in the B-1 zone; that the applicants (Allied and M &: M) contribute $20.000 to the. city to help finanee a solution to the traffic problem in the area.; and tha.t a performa.nce bond be posted to usure that lanlhcaping \Vas com- pleted according to plan. No explicit re- strictions were placed on Frank's sales. On December. lS, 1976, the city council, without public notice, amended the section of the ordinance that de:scribed tbe B-1 zone to add a definition of "lawn and gar- den.' center. That definition excluded any establishment that sold products other than lawn, garden, a.nd horticultural products even though the sale of those other prod- ucts was not the .primary business of the esu,blishment. There had. been nO previous . definition of "lawn and garden" center and no other permitted use within Pr-l wu defined by the amendment. On January 20. 1978, after the co~ditions set by the council had. been met, Frank's applied for a bunding permit. The city d.enied the permit the same day, referring to the la.nguage of the B-1 s~tion of the orciinance. Frank's contends that because the property had been deed restricted to; B-1 uses. it could DQt. go back to the council: to s"k approval for a rezoning to B-2.. Frank's therefore brought an action to com- " pel . issuance o~ the building permit. The ~ trial court concluded that the December 13. 1976, amendment to the ordina.nce was in- valid for lack of notice and that absent the amendment, Frank's was a "lawn and 'gar- den" center within the meaning of the B-1. sectlon of the ordinance:. . 1. At trial Frank'. contended, first. that: the words and conduct of the dty ofilCials,', 'who had complete information on its busi- : ness; led Frank'. to believe that B-1 zoning . would be appropriate. Frank's contended that it relied on that belic:f to its detriment and that the city should therefore be @S- . topped from denying the permit. The city 60.... . responded tha.t it had not misrepresented its interpretaticm of the ordinance: but that even if it had, it could not be estopped from applying and enIorcing the 'ordinance cor- rectly. However, although the vast ma.jori- ty of the te:stil1'1ony and argument centered on the estoppel issue, the trial court made no finding on that issue. [1] We conclude Frank's contention that ./ the city was estopped froIn denying the' i permit must be rejected as a matter of law. . The law i:n Minnesota is clear that adrirlois- .~ tration of zoning ordinances is a govelll-.1.; mental not a proprietary function, and the : municipality'cannot be esto~ped from CCll'-" rectly enforcing the ordinance even if .the ,~ property owner relied to his detriment o~ prior city action. W. H. Barbel' Co. v. City of Minneapolis, 227 Minn. 77. 34 N.W.2d 710 (1948); State ex reI. Howard v. Villa.ge of Boseville, 244 Minn. 843. 70 N.W.2d 404 (1955); Tbe Alexander Co. v. City of Qwa- tonna; 222 Minn. 312, 24 N.W.2d. 244 (1946). . .- Thus, even if cit.y officials and the Citi.. council did lea4 ~Frank'8 to believe that it woulr:l come within the B-1 classification. 'if. " that representation was incorrect, ~e..~ity is not estopped from prohibiting :'Frank's from building a nonconforming business on its lat." 2. The central question, then, is whether the trial court correctly re;ected the city's interpretation of the zonin2' ordinance in holding that Frank's is a lawn and garden center Wlthin t.he B-1 classification. . The city concedes on appeal tnat the December 13, 1978; amendment to the ordinance ~.u invalid for lack ot notice and therefore can- not be applied to eJ::clude Frank's from t;be B-1 zone. The city contends, however. ~t llIven the pre-amendment ordinance can. ~ interpreted. to exclude a store like FraJ3;k's that sells some other than lawn and garden items. and the trial court erred in 'Qbati~~t- ing its OVID interpretation for that ot: the city. ...-. We stated in Arcadia Development ColJ:t._ v. City of Bloomington, 267 Minn. 2Zl. 226. 125 N.W.2~ 846, 850 (19M). that "[i]! the reasonableness of the action of the City council is at least doubtful, or fairly c!ebata- . . , ~I I . ! , i j 1 .4 i \' ! : I' i: : : I:' i \1 \ 608 Minn. 295 NORTH WESTERN REPORTER, 2d SERIES bla, a c:ou.rt wm not interject ita own conclu. SiODS as to more preferable actions.". In Village,J Edina v. Joseph, 264 Minn. 84. 98, 119 N.W.2d 809, 815(1962). quoted in Area-. dia, we stated: . We bave repeatedly said wit.h respect to the decisions of municipal and ather gov- ernmental bodies having tbe duty ot making decisions involving judgment and discretion that it Us not the province of the court to substitute its judgment for that ot the body making such a decision, but 1IIerely to cletennine '\II1hether that ~y WllS within its jurisdiction, was :not mistaken as to the applic:.&ble law, and did . not act arbitrarily, oppressively, or unrea- .sonably, and to determine wnether the evidence could reasonably support or jlls- tify the determination. The city argues that the narrow scope of. review expressed in ArCadia and. Joseph required the trial court to defer to the council's reasonable interpret.cition of "lawn and garden" center under the ordinance. . We do not agree..:- [3] We believe the tri..l court's interpre- , tation should be upheld. Several rules of [2] The scope of review by a trial court. construction lend support to this int.erpreta-,. of a eity's interpretation of an Qrdinance is tion. First, .courts generally s~rive to;.eon"": a question of first impression i:n this state. stnle a term' according to its plain and The gener:a.l rule appears to be that while (~.rdinary meaning. Cf. Charles W. Sexton issues of fact and legislati~e policY-lnaking Co. v. Hatfield, 283 Minn. 187, 116 N.W.2d decisions should be left ta tne city', deter- 574 (1962). S Anderson, American Law of .nrlnation, subject only to, the ~ro~d limits of Zoning i 16.10 (2<1 ed. 1977) (hereinafter _ the.~'atbitrary and. ~ptici,~us" stan~ard, the Anderson); 1 Rathlcopf ~ 9,03. The term in~retation of an emting ordinance is a "lawn ~nd ~lf does not c:i.i'.;sti~n 'of iaw for' the 'court. 's Rathkopf, seem to exclude stores that primanly lell The' Law at ZOlJt.ni iu)d'pianni"ng eh. 65, i 3 horticultural items but sell some other (4th ed. 1979) (hereinafter Rathkopf). The items as well. Moreover, Frank's witnesses, opinionJ of the governmental allthority, famUiar with retail merchandising terms, while entitlecl to consideration, are not as testified they would' consider Frank's a persu-.sive as they would be on quutiona of . lawn and garden center. faet within its purview. Thus, where the question is \Yhether an ordinance is applica- ble to certain faets, the determination of tho.e facts is for the government&l authori. ty, but the manner of applying the ordi- nance to the facts is far the court. Id. The prior opinions of this CDurt restric~ing tbe trial court's revie\Y to a determination of whether the citY. decision 'Was arbitnry. and ca.priciol.ls have been in cases illvolving the city's fact-finding or policy.n-akinK C8;- pacity and therefore do Dot contrOl hee.. In fact, we not;.ed in Joseph that it is for the court to det.ennine whether the governmen- tal body ~4was not mistaken as to the appli- cable law," ilnplying that the court has the responsibility to determine the correct in- terpretation.. 3. The a.ue in this case, then, is whet~- er the trial court carrec~ly interpreted the phrase '~~~wn and garden" center to include a store such as that whicb Frank's wishes to build. Tne faets about the nature of Frank's operations are not in dispute. There is no question that. Frank's ,ells pri- marily lawn and garden products; the isaue is whether a lawn and garden center may also :sell other than lawn and garden prod- ucts. The city claims the language of the ordinance precludes such an interpretation, but the trial court, in :finding Frank', to be a lawn and garden center, apparently con- eluded tha.t tbe term allowed a store that was not so restricted. ,/ t . \::le lawn statu ciple. (5} consi Low- 42 :r- e:<an dictl: Frar outlt pern alt.h( zone twet mer' mitt ume uses lurr thlH dud loea witt v.. star to: .~ (4] Second, zoning.ordinances should be : construed strictly agaiD5t the city and in . favor of the property owner.. 3 Anderson i 16.02: 1 Rathkopf ! 9.03. Clearly, the term "lawn and garden" center is suscepti- ble of various interpretations that are 1!1ol'C...-,. ~ less restrictive in scope. We must .give .[.J weight to the in.terpretation that, ~bil. .ti'~ "./., within the' c:onf'mes of the term, is least~ restrictive ~p;n the rights af the pro~"5i l ~. ! : .. exc t.er"! the by' pre iter Tht the "la Fl'~ ( tio bu' pa: fo\ int un pe tel ni' su th ': " " H. .~\ '~i. ':'c -.lIt. ;.;,1.1 ~'; ~~ + 'I:;:; , l' ~'l ;" I . , LUGER '1'. CITY OF BURNSVlLLE MinD. 609 1 a. ... MJu... ZSS N.W..:Id - owner to use his lal1d as he wishes.''\; The While these circl.1mstances are not diaposi- trial court's c:one1usion that FraDlc's is a tive, they justify giving less weight to the lawn and garden center does not distort the city's present interpretation than mig-ht statute and gives propel' effect to this pnn- otherwise be accorded. ciple. [6] We hold, therefQfe. that the trial [6] A zoning or&ance must always be com correctly c:oncluded Frank's is a'lawn considered. i~ light of ita underlyhl~ policy, . and garden center within the B-llection of Lowry v. Cley aL Msllksto, .231 ~tnn. lOS, the zoning ordinance and arf"ll'lD the order 42 N.W.2d ssa (1950), but 1D this case an compelling the city to issue all neceasary examination of legislative intent does not buUding permits. dictate a contrary reslllt. The city <lontenda Affi ad Frank's resembles more an ordinary retail U'1Jt . outlet, which is not permitted in B-1 but is . .permitted, instead, in B-2. It is argued, . . althol.1gh Dot a part of the recQrQ, that B-1 IOnes are designed to act as buffer.l be~ tween residential areas and full-scale com- mercial areu. The city notes that the pe~ mitted uses in a B-1 zone are not large-vol- ume retail uses, whereas pennitted B-2 uses iDC!lude establishments that sell many items $Old by Frank's. The city contends, thereforll, that it was reasonable to COll- elude that Frank's would more properly be located in a B-2 retail zone and is not within the spirit of the B-1 section. , While it is probably true that large ret.aJl stores were meant to be confined generally to B-2 ZObU, nothing in the B-1 section excludes large retail lawn and garden cell- terse It is Frank's size and operating style, the "supermarket" approach complained of by the council and residents, not the limited presence of other than lawn and garden items, that is the aetual concern of the city. Thus, it does neit contravene the intent of the ordinanl;le to include within the phrase ,"lawn and garden" center a store like Frank's. . Certainly:~~. ~~!~.~*~~~~!J:~~' ,tf6,,:l\')f.ith&'ordinan~ ,]S ;,ep~ltlea to rapect.:. but that interpretation is not persuasive, particularly here. The court could have found that even the council agreed with its intel'Pretation of "lawn and garden" center until I;lQfttiDUing community pruaure com- pelle4 the CQunCl1 to attempt to redefine the term. The council's attempt to add a deta- nitioD of the term to the ordinance also sugBUts that it felt the ordinance, ab.ent the amendment, wu not so restriative. '" .,;. 7 : I j David E. LUGER. Appellant,.' .Y. CITY OF BURNSVlLLE, Respondent. No. 50321. Supreme court of Minnesota,. , July 3, 1980. Property owner appealed from ari order of the District Court, Dakota County, Ray- mond Pavlak. J.. denying owner's applies.- tion for a writ of mandamus to comPel city council to grant a variance allowing him to construct a hOWle on his land. The Su- preme Court, Scott. J.. held that where no statute or ordinance permitted or required neighborhood consent to a zoning variance. city COUDcil could not require every . abut.. ting property owner to consent to owner's proposal to construct a home, and si1'.OIa city council voted nanimously in favor of the grant of the variance, owner was eD~~~~ to . writ of mandamus. compelling 'p~_ to grant OWDer a variance.. ' 'ft'. .. Writ grante<i.' . :.... .~:.;~: 1. Zoning and Planning C:;Jf83 .". '0:' . ,A ''variance'' allow$ property.to:be used in manner forbidden by zouing;.~- ...... . '.':"~~"i1"ig.,;~, Chapter 28A ~ !t " Licensine Food Handlers 28A.01 c.i. ta1:i.on, Minne.ota con.olic:la:ted. food. licen.inq law. Sections 28A.01 to 28A.16 shall be known as the "Minnesota consolidated food licensing law." HIST: 1971 c 339 s 1 28A.02 t>eclara1:i.on of policy. It is hereby declared to be the policy of the legislature, recognizing that food in its various forms is essential to the health and well-being of the people of this state and that its production, processing, packaging, labeling, handling, distribution and sale may create health hazards, misinfoDm consumers, perpetuate frauds or otherwise jeopardize the public health and welfare and in order to effect an efficient and simple for.m of licensing, to require that every person who handles food in a manner described herein, shall obtain a license therefor from the commissioner and that all producers, processors, packagers, labelers, handlers, distributors and vendors of food, whether or not subject to licensing, shall be required to comply with all applicable rules adopted by the commissioner. HIST: 1971 c 339 s 2; 1985 c 248 s 70 f3 ..- ::) ..... ~ CI) ~ ~ CI) 28A.03 l)ef';i.ni tiona. Subdi vision 1. Scope. The definitions in this section apply to sections 28A.01 to 28A.16. Subd. 2. CODaiaaioner. "Commissioner" means the COmmissioner of agriculture. . Subd. 3. Per.on. "Person" means any individual, f~rm, corporation, company, association, cooperative or partnership and includes any trustee, receiver, assi~ee other similar representative thereof. ' or Subd. 4. Place of buaineaa. "Place of business" means every location where food or food itema are manUfactured, processed, sold, stored, or handled, including bUildings locations, permanent or portable structures, carnivals ' circuses, fairs, or any other permanent or temporary l~cation. Any vehicle or similar mobile unit from which food is sold shall be considered a place of business for purposes of this s7ction if the food therefrom has been manufactured, packaged or d~spensed from bulk, or processed in any manner thereon. . . :>u.oa.~. Food.. "Food" includes every article used for, entering into the consumption of, or used or intended for use in the preparation of food, drink, confectionery, or condiment for humans, whether simple, mixed or compound. ~ (a) "Perishable food" is food which includes, but is not limited to fresh fruits, fresh vegetables, and other products which need protection from extremes of temperatures in order to avoid decomposition by microbial growth or otherwise. (b) "Readily perishable food" is food or a food ingredient consisting in whole or in part of milk, milk products, eggs, meat, fish, poultry or other food or food ingredient which is capable of sUpporting rapid and progressive growth of infectious or toxigenic microorganisms. (c) "Frozen food" is food which is processed and preserved by freezing in accordance with good commercial practices and which is intended to be sold in the frozen state. (d) For the purposes of this definition, packaged food in hermetically sealed containers processed by heat to prevent spoilage; packaged pickles; jellies, jams and condiments in sealed containers; bakery products such as bread, rolls, buns, donuts, fruit-filled pies and pastries; dehydrated packaged food; and dry or packaged food so low in moisture content as to preclude development of microorganisms are not "perishable food," "readily perishable food," or "frozen food" within the meaning of paragraphs Ca), Cb), and Cc), when they are stored and handled in accordance with good commercial practices. Ce) "Nonperishable food" is food described in paragraph Cd) with a self life of more than 90 days 28A.o.. L:l.OItDae zoeqa:L:ed.; ca.t:am proceaaiDg pezm:i.t applic:at:iODa; zezaewala. SubdiVision 1. AppJ.j.ca:t.:i.cm; dat:e -of :i.allUaDce. No person shall engage in the business of manUfacturing, proceSSing, selling, handling, or storing food without having first obtained from the Commissioner a license for doing such business. Applications for such license shall be made to the COmmiSSioner in such manner and time as required and upon such forms as proVided by the COmmissioner and shall contain the name and address of the applicant, address or description of each place of business, and the nature of the business to be conducted at each place, and such other pertinent info~tion as the COmmiSSioner may require. A retail or wholesale food handler license shall be issued for the period July 1 to June 30 following and shall be renewed thereafter by the licensee on or before July 1 each year, except that licenses for all mobile food concession Units and retail mobile units shall be issued for the period April 1 to March 31, and shall be renewed thereafter by the licensee on or before April 1 each year. A license for a fQod broker or for a food processor or manufacturer shall be issued for the period January 1 to DeCember 31 following and shall be renewed thereafter by the licensee on or before January 1 of each year. A penalty for a late renewal shall be assessed in accordance with section 2BA. DB. .;)WJQ. "-. CUa'CCm processing pex=it. In addition to the license requirements set forth in subdivision 1, every custom processor shall obtain a custom processing permit. Application for a permit shall be made on fo~ provided by the commissioner. The commissioner shall cause the custom processor's place of business to be inspected and if the commissioner finds that the applicant's place of business complies with state standards relating to meat processing plants, a custom processing permit shall be i~sued to the applicant. No additional fee shall be charged for a custom processing permit. \:;',;;, \f:E.~ \~..~~ .,' \ ~.... ~ ~ f, i ~ ,. HIST: 1971 c 339 s 4; 1975 c 412 s 10; 1977 c 160 s 2; 1996 c 407 s 18 * NOTE: The amendment to subdivision 1 by Laws 1996, chapter *407, section 18, is effective April 1, 1997, and applies to *licenses issued for mobile food concession and retail mobile *units beginning with the April 1, 1997, to March 31, 1998, *period. License fees for the nine-month period July 1, 1996, to *March 31, 1997, will be prorated at 75 percent of the fee *schedule in effect on July 1, 1996, rounded to the nearest *dollar. Laws 1996, chapter 407, section 57. 28A. OS CJ....uicat:1on. All persons required to have a license under section 28A.04 shall,be classified into one of the following classes of food handlers, according to their principal mode of business. (a) Retail food handlers are persons who sell or process and sell food directly to the ultimate consumer or who CUstom process meat or poultry. The tez:m includes a person who sells food directly to the ultimate consumer through the Wle of coin actuated vending machines, and a person who sells food for consumption on-site or off-site if the sale is conducted on the premises that are part of . grocery ~ convenience store operation. (b) Wholesale food handlers are persons who sell to others for resale. A person who handles food in job lots (jObbers) is included in this classification. (c) Wholesale food processors or.manufacturers are persons who process or manufacture raw materials and other food ingredients into food items, or who reprocess food items, or who package food for sale to others for resale, or who commercially slaughter animals or poultry. Included herein are persons who can, extract, fez:ment, distill, pickle, bake, freeze, dry, smoke, grind, mix, stuff, pack, bottle, recondition, or otherwise treat or preserve food for sale to others for resale, cold storage warehouse operators as defined in section 28.01, subdivision 3, salvage food processors as defined in section 31.495, subdivision 1, dairy plants as defined in section 32.01, subdivision 6, and nonresident manufacturers of frozen foods as described in section 32.59. (d) A food broker is a person who buys and sells food and who negotiates between a buyer and a seller of food, but who at no time has custody of the food being bought and sold. HIST: 1971 c 339 s 5; 1974 c 2 s 1; 1975 c 412 s 11; 1986 c 375 s 1; 1986 c 444; 1991 c 52 s 1 2BA.06 Extent of ~icense. No person,' except as described in sections 27.03 and 27.04, shall be required to hold more than one license in order to engage in any aspect of food handling described in section 28A.05 provided, that each issued license shall be valid for no more than one place of business, except that a license for a mobile unit or a portable structure is valid statewide and is required to be issued only once each year unless the licensee fails to display the license as required by section 28A.07. r . HIST: 1971 c 339 s 6 28A.065 License requirement. for a ca.rnivU, circu., or fair. No person whose place of business is a carnival, circus, or fair and who holds a license pursuant to this chapter or chapter 157 shall be required to obtain any additional license or permit pursuant to the provisions of an ordinance or rule of a political subdivision in order to engage in any aspect of food handling.or to operate a restaurant. This section does not exempt the person from compliance with the provisions of chapters 37 and 38, any sanitation, public health or zoning ordinance, privilege license requirements or other rule of the fair or political subdivision having jurisdiction over the area in which the carnival, circus, or fair is conducted. HIST: 1982 c 625 s 1; 1985 c 248 s 70 2BA.07 Zaauance of 1ioana.. Prior to the issuance or renewal of any license herein, the commissioner may cause appropriate inspections to be made to determine under applicable statutory and promulgated rule requirements, the applicant's fitness to engage in the modeCs) of business described in that person's license application. A valid and properly displayed license ~hall be sufficient to allow the licensee to engage in the manner of food handling so described in the licensee's application, provided that the commissioner may withhold authorization to engage in any aspects of business for which the applicant is not deemed fit under this section. A licensee may, at any time, apply to change such application which shall then be considered by the commissioner in the same manner as a new or renewal application hereunder. HIST: 1971 c 339 s 7 28A~ 075 Delegat:i.on to local board of health. The commi . SS10ner may enter into an agreement with a local ~oard o~ healt~ to delegate all or part of the licensin and ~ns~~ct10n dut1es of the COmmissioner pertaining to ret:il food an ers that are grocery or convenience stores. HIST: 1991 c 52 s 2 , ., 28A.08 Licen.e fee.; penaltie.. '~ sJbdivision 1. Gene~al. License fees, penalties for late renewal ,f licenses, and penalties fo~ not obtaining a license'b,efort'l'\9onducting business in food handling that are set in this section 'apply to the sections named except as provided under section 28A.09. Except as specified herein, bonds and assessments based .~number of units operated or volume handled - or processed which re provided for in said laws shall not~e affected, nor shall. ny penalties for late payment of said assessments, nor sh~l inspection fees, be affected by this chapter. - The penalties may be waived by the commissioner. Fees for all new licenses must be based on the anticipated future gross annual food sales. ~... i :1 Subd. 2. Repealed, 1995 c 220 s 141 Subd. 3. .... effective JUly 1, 1996. Type of food handler ~ Penalties License Late No ,\.;Fee . Renewal License '\ "Effective July 1, 1996 1. Retail food handler (a) Having gross sales of only prepackaged nonperishable food ';~.~ of less than $15,000 for ;' the immediately previous license or fiscal year and filing a statement with the commissioner $ 45 $ 15 (b) Having under $15,000 gross sales including food preparation or having $15,000 to $50,000 gross sales for the immediately previous license or fiscal year $ 61 $ 15 (c) Having $50,000 to $250,000 gross sales for the immediately previous license or fiscal year $118 $ 35 (d) Having $250,000 to $1,000,000 gross sales for the immediately previous license or fiscal year $202 $ 50 fe) Having $1,000,000 to $5,000,000 gross sales for the immediately previous license or::!!t,.. fiscal year -. $562 $100 (f) Having $5,00~,000 to $10,000,000 gross sales for the immediately previous license or fiscal year $787 $150 (g) Having over $10,000,000 gross sales for the immediately previous license or fiscal year $899 $200 Wholesale food handler $350 $ 25 $ 25 $ 75 $100 $175 $300 2. (a) Having gross sales or service of less than $25,000 for the immediately previous license or fiscal year $ 50 $ 15 $ 15 (b) Having $25,000 to $250,000 gross sales or service for the immediately previous license or fiscal year $225 $ 50 $100 (c) Having $250,000 to $1,000,000 gross sales or service from a mobile unit without a separate food facility for the immediately previous license or fiscal year $337 $ 75 $150 (d) Having $250,000 to $1,000,000 gross sales or service not covered under paragraph ( c) for the immediately previous license or fiscal year $449 $100 $200 (e) Having $1,000,000 to $5,000,000 gross sales or service for the immediately previous license or fiscal year $562 $125 $250 (f) Having over $5,000,000 gross sales for the immediately previous license or fiscal year $647 $150. $300 3. Food broker $112 $ 30 $ 50 4. Wholesale food processor or manufacturer (a) Having gross sales of less than $250,000 for the immediately previous license or fiscal year $310 $ 75 $150 (b) Having $250,000 to $1,000,000 gross sales for the immediately previous license or fiscal year $449 $100 $200 (c) Having $1,000,000 to $5,000,000 gross sales for the immediately previous license or fiscal year $562 $125 $250 (d) Having Over $5,000,000 gross sales for the immediately" previous license or fiscal year $647 $150 $300 5. Wholesale food processor of meat or poultry products under SUpervision of the u. s. Department of Agriculture (a) HaVing gross sales of less than $250,000 for the immediately previous license or fiscal year $169 $ 50 $ 75 (b) Having $250,000 to $1,000,000 gross sales for the immediately previous license or fiscal year $253 $ 75 $125 (c) Having $1,000,000 to $5,000,000 gross sales for the immediately previous license or fiscal year $310 $ 75 $150 (d) Having over $5,000,000 gross sales for the immediately previous license or fiscal year $366 $100 $175 6. Wholesale food manufacturer haVing the permission of the COmmissioner to use the name Minnesota Far.mstead cheese $ 30 $ 10 $ 15 7. Nonresident frozen dairy manufacturer $200 Wholesale food manufacturer processing less than 70,000 pounds per year of cultured dairy food as defined in section 32.486, subdivision 1, paragraph (b) $ 30 A milk marketing organization without facilities for processing or manufacturing that purchases milk from milk producers for delivery to a licensed wholesale food processor or manufacturer $ 50 $ 50 $ 75 8. 9. $ 10 $ 15 $ 15 $ 25 HIST: 1971 c 339 s 8; 1975 c 412 s 12; 1977 c 114 s 2; 1981 c 356 s 266; 1983 c 293 s 53; 1987 c 396 art 11 s 4; 1991 c 254 art 3 s 15; 1992 c 513 art 2 s 17; 1995 c 220 s 43; 1996 c 407 s 19 2BA. 09 :In~ct:i.on fees for vending mach:i.nes. Subdi vision 1. Azmual ~ee; exceptions. Every cOin-operated food vending machine is subject to an annual state inspection fee of $15 for each nonexempt machine except nut vending machines which are subject to an annual state inspection fee of $5 for each machine, provided that: Ca) Food vending machines may be inspected by either a home rule charter or statutory city, or a county, but not both, and if inspected by a home rule charter or statutory city, or a county they shall not be subject to the state inspection fee, but the home rule charter or statutory city, or the county may impose an inspection or license fee of no more than the state inspection fee. A home rule charter or statutory city or county that does not inspect food vending machines shall not impose a food vending machine inspection or license fee. Cb) Vending machines dispensing only gum balls, hard candy, unsorted candy, or ice manufactured and packaged by another shall be exempt from the state inspection fee, but may be inspected by the state. A home rule charter or statutory city may impose by ordinance an inspection or license fee of no more than the state inspection fee for nonexempt machines on the vending machines described in this paragraph. A county may impose by ordinance an inspection or license fee of no more than the state inspection fee for nonexempt machines on the vending machines described in this paragraph which are not located in a home rule charter or statutory city. Cc) Vending machines dispensing only bottled or canned soft drinks are exempt from the state, home rule charter or statutory city, and county inspection fees, but may be inspected by the commissioner or the commissioner's designee. Subd. 2. :Identification; ruJ.es. The commissioner may require that a vending machine must be identified in accordance with rules promulgated pursuant to chapter 14. HIST: 1971 c 339 s 9; 1978 c 502 s 2; 1982 c 424 s 130; 1983 c 293 s 54; 1983 c 300 s 4; 1984 c 503 s 1; 1986 c 375 s 2; 1987 c 58 s 1; 1987 c 384 art 3 s 15; 1996 c 407 s 20 , . 28A.085 Reinspection fees. Subdivision 1. Violations; prohibited acts. The commissioner may charge a reinspection fee for each reinspection of a food handler that: (1) is found with a major violation of requirements in chapter 28, 29, 30, 31, 3 lA, 32, 33, or 34, or rules adopted under one of those chapters; (2) is found with a violation of section 31.02, 31.161, or 31.165, and requires a follow-up inspection after an administrative meeting held pursuant to section 31.14; or (3) fails to correct equipment and facility deficiencies as required in rules adopted under chapter 28, 29, 30, 31, 31A, 32, or 34. The first reinspection of a fir.m with gross food sales under $1,000,000 must be assessed at $25. The fee for a firm with gross food sales over $1,000,000 is $50. The fee for a subsequent reinspection of a fir.m for the same violation is 50 percent of their current license fee. 'The establishment must be issued written notice of violations with a reasonable date for compliance listed on the notice. An initial inspection relating to a complaint is not a reinspection. 'Subd. 2. Market w.i1:hdrawal.; food safety emergency. A food handler that requires a reinspection due to adulteration or misbranded foods that result in a food being recalled from commerce may be assessed for reasonable and direct reinspection costs incurred by the commissioner, including personnel, travel, laboratory analysis, and attorney general costs. Reinspection related to floods, earthquakes, sto~, accidental fires, and power outages are excluded. The COmmissioner, upon request of the food handler, shall provide, within a reasonable time, an estimate of the anticipated cost for resolving the food safety emergency. Subd. 3. Mafttler and timing o~ payment. Unless an appeal is filed under subdivision 5"a food handler must pay all fees and assessments in the manner and timing requested by the cOmmissioner. If a t~ely appeal is requested, the fees and assessments are stayed until a decision on the appeal is issued by the hearing officer. A license may not be renewed until all fees and penalties under this chapter are paid. Subd. 4. Depo.:lt: appropr:lation. All reinspection fees and assessments collected must be deposited in the state treasury and are credited to an account in the special revenue fund. Money in the account, including interest accrued, is appropxiated to the commissioner to pay the expenses relating to reinspections conducted under the chapters listed in subdivision 1. Subd. 5. Appeal... Food handlers may appeal reinspection fees and assessments to the department hearing officer within 30 days of receipt of the notice of fee 2BA.09 Xnspection fees for vend.i.nq mach.iDes. ~.""".'.'.' .,;-0<. :;:_ ~_~ .::.~,.: ~.~ <:. ~ ~'> :: ~ ...~: ~~~:~;:~ ~{~~ :<" ? ~{: ~~: .- '.-....'.'... ,.,-.... .::~:: :.::.:;::.>-,;:_..:~ -, - ." '.' .',' ,.,'-'.'--:-.' \;;:'.' .'. .. \: -., ,', Subdi vision 1. Annual. fee; exceptions. Every coin-operated food vending machine is subject to an annual state inspection fee of $15 for each nonexempt machine except nut vending machines which are subject to an annual state inspection fee of $5 for each machine, provided that: I t (a) Food vending machines may be inspected by either a home rule charter or statutory city, or a county, but not both, and if inspected by a home rule charter or statutory city, or a county they shall not be subject to the state inspection fee, but the home rule charter or statutory city, or the county may impose an inspection or license fee of no more than the state inspection fee. A home rule charter or statutory city or county that does not inspect food vending machines shall not impose a food vending machine inspection or license fee. (b) Vending machines dispensing only gum balls, hard candy, unsorted candy, or ice manufactured and packaged by another shall be exempt from the state inspection fee, but may be inspected by the state. A home rule charter or statutory city may impose by ordinance an inspection,or license fee of no more than the state inspection fee for nonexempt machines on the vending machines described in this paragraph. A county may impose by ordinance an inspection or license fee of no mere than the state inspection fee for nonexempt machines on the vending machines described in this paragraph which are not located in a home rule charter or statutory city. (c) Vending machines dispensing only bottled or canned soft drinks are exempt from the state, home rule charter or statutory city, and county inspection fees, but may be inspected by the commissioner or the commissioner's designee. Subd. 2. Xdent.ifi.cation; ra.l... The commissioner may require that a vending machine must be identified in accordance with rules promulgated pursuant to chapter 14. HIST: 1971 c 339 s 9; 1978 c 502 s 2; 1982 c 424 s 130; 1983 c 293 s 54; 1983 c 300 s 4; 1984 c 503 s 1; 1986 c 375 s 2; 1987 c 58 s 1; 1987 c 384 art 3 s 15; 1996 c 407 s 20 2BA.10 Po.t.iDq o~ UceD..; ra.l... All such licenses shall be issued for a period of one year and shall be posted or displayed in a conspicuous place at the place of business so licensed. Except as provided in sections 29.22, subdivision 4 and 31.39, all such license fees and penalties collected by the commissioner shall be deposited into the state treasury and credited to the general fund. The commissioner may adopt such rules in conformity with law as the commissioner deems necessary to effectively and efficiently carry out the provisions of sections 28A.01 to 28A.16. HIST: 1971 c 339 s 10; 1985 c 248 s 70; 1986 c 444 2BA.ll Mjust:meDt.. The commissioner shall make appropriate license fee adjustments for up to one year from July 1, 197~ for,persons required to be licensed hereunder, who hold val~dly ~ssued licenses as of the date of this act under the provisions of law amended or repealed herein. The commissioner may also make appropriate license fee adjustments fo~ licensees ch~ngi~g their classification under section 28A.05 pr~or to the exp~rat~on date _..__O"'~ '~cey;,se. 28A.12 Violations. '0 Any person who does not comply with the provisions of sections 28A.Ol to 28A.16 or rules issued thereunder shall be guilty of a misdemeanor. HIST: 1971 c 339 s 12; 1985 c 248 s 70 28A.13 Power to suspend or revoke licenses. Whenever the commissioner has reason to believe that any provision of law relating to the manUfacturing, processing, distribution, handling and sale of food, or rule issued by the COmmissioner thereunder, has been violated, the COmmissioner may sUspend or revoke a license or pe~t granted under section 28A.04, or may limit the permission of the license or permit to only those aspects of the licensee's or permittee's business which are in conformity with the law and rules. Any person may be restrained by injunction from engaging in any business operation or category thereof for which that person is not validly licensed or for which a permit has not been issued. This suspension or revocation shall be made only after notice to the licensee or permittee and an opportunity to be heard with reference to the grounds for suspension or revocation, and this action by the Commissioner shall in no way exempt such licensee or permittee from the penalties otherwise imposed in this chapter. The Commissioner shall serve upon the licensee or permittee by registered letter containing a copy thereof, an order to show cause why the license or permit should not be permanently revoked, stating the grounds thereof, and the t~e and place of hearing, which time shall not be less than ten days after the date of mailing of the order. At the appointed time and place, and at such times as the matter may be adjourned to, the COmmiSSioner, or oan appointed hearing officer, shall hear all proper evidence relating to the cause of the proposed revocation and, within a reasonable time thereafter, shall make and file a decision of the matter and forthwith mail to the licensee or permittee a copy thereof. HIST: 1971 c 339 s 13; 1977 c 16~.s 3; 1985 c 248 s 70; 1986 c 444 28A.14 '1!ranaf'er of' l::rua:i.ne... A transfer of a business or a discontinuance of its operation by the licensee at the address covered by the license voids the license and the license certificate shall be surrendered to the commissioner immediately by anyone in possession of the same. HIST: 1971 c 339 s 14 .r.;. , ..; .. 2BA.15 Ezcluaiona. Subdivision 1. The licensing provisions of sections 28A.Ol to 28A.16 shall not apply to the following: Subd. 2. Persons selling the products of the farm or garden occupied and cultivated by them, Or to persons not regularly engaged in the business of manufacturing and selling food and who prepare food only on order of and for sale directly_ to the ultimate consumer, or to educational, charitable or religious organizations not regularly engaged in the business of manufacturing, processing, or selling food at their established educational, charitable or religious institutions. Subd. 3. A farmer slaughtering personal animals, rabbits or poultry, on the farmer's own farm for: (a) personal Use; or (b) the Use of the far.mer's Lmmediate family. Subd. 4. Any persons required to be licensed under chapter 19 or trucks operating under a certificate or permit issued pursuant to chapter 221 or warehouse operators, other than cold storage warehouse operators, offering storage Or warehouse facilities for Compensation. Subd. S. Persons whose principal mode of business is licensed under section 157.16 Or 327.15; provided that the holding of any license pursuant to section 157.16 Or 327.15 shall not exempt any person from the applicable requirements of the laws and rules administered by the commissioner. as they relate to composition, standards of identity, adulteration, labeling or misbranding of food. ; Subd. 6. Repealed, 1978 c 502 s 3 Subd. 7. Persons whose principal business is not food handling but who sell only ice manufactured and prepackaged by another, bottled Or canned soft drinks. prepackaged candy or nuts at retail, or persons who for their own conveni~ce or the convenience of their employees have available for rehydration and consumption on the premises such nonperishable'~l~ as dehydrated coffee, soup, hot chocolate or other dehydrated food or beverage. Subd. 8. A licensed pharmacy selling only food additives, food supplements, canned or prepackaged infant fO~lae, ice manufactured and packaged by another, or bottled or canned soft drinks and prepackaged candy or nuts at retail. Subd. 9. An individual who prepares and sells food that is not potentially hazardous food, as defined in rules adopted ~ under section 31.11, at a community event or far.mer's market on ten or fewer days in a calendar year and with gross receipts of $1,000 or less in a calendar year. If the food is not prepared in a kitchen that is licensed Or inspected, the seller must post a visible sign or placard stating that: "These products are homemade and not inspected." i . 2BA.16 Per.on. ..lliag ~qaor. \The prOvisions of the Minnesota consolidated food licensing law, sections 28A.01 to 28A.16 and acts amendatory thereto, shall not apply to persons licensed to sell 3.2 percent malt liquor "on-sale" as provided in section 340A.403. Or to persons licensed to sell intOXicating liquors "on-sale" or "Off-sale" as prOVided in sections 340A.404 to 340A.407, provided that these persons sell only ice manufactured and packaged by another,__or bottled or canned soft drink~ ~~~ ______~_~ _ ; I 28A. 17 Licen,e zene"al. Licenses for food processors or manufacturers or food brokers shall be renewed annually on January 1. Licenses for retail and wholesale food handlers shall be renewed annually on July 1. Licenses for mobile food concessions and for retail mobile units shall be renewed annually on April 1. HIST: 1976 c 2 s 7; 1996 c 407 s 25 28A.20 Food. aafei:y acivi.aozy CClIIIImi tt:ee. Subdivision 1. Zat:abli.Jo-ftt. A food safety advisory committee is established to advise the commissioner and the legislature on food issues and food safety. Subd.- 2. Memberahip. (a) The food safety advisory committee consists of: (1) the commissioner of agriculture; (2) the commissioner of health; (3) a representative of the United States Food and Drug Administration; (4) a representative of the United States Department of Agriculture; (5) one person from the University of Minnesota knowledgeable in food and food safety issues; and (6) eight members appointed by the governor who are interested in food and food safety, of whom: (i) two persons are health or food professionals; (ii) one person represents a statewide general farm organization; (iii) one person represents a local food inspection agency; and (iv) one person represents a food-oriented consumer group. r (b) Members shall serve without compensation. Members appointed by the governor shall serve four-year terms. Subd. 3. O:g~zation. (a) The committee shall meet monthly or as dete~ned by the chair. (b) The members of the committee shall annually elect a chair and other officers as they dete~ne necessary. Subd. 4. Staff. The commissioner of agriculture shall provide support staff, office space, and administrative services for the committee. Subd. 5. Dutiea. The committee shall: (1) coordinate educational efforts about various aspects of food safety; r (2) provide advice and coordination to state agencies as requested by the agencies; AGENDA ITEM: SUBJECT: SITE: PRESENTER: REVIEWED BY: PUBLIC HEARING: DATE: INTRODUCTION: PLANNING REPORT 6A CONSIDER APPEAL OF MARK MICHAEL FROM A RULING OF THE ZONING OFFICER RELATING TO HOME OCCUPATIONS (Case File #97-005) 4190 EAU CLAIRE TRAIL JENNI TOVAR, PLANNERJJ.,r JANE KANSIER, PLANNING COORDINATOR YES --X- NO-N/A FEBRUARY 10, 1997 Section 5-6-4 of the City Code provides for an appeal process from decisions of the Zoning Officer. The Planning Director is the Zoning Officer in Prior Lake. The action was initiated by a complaint regarding the home occupation operated by Mark Michael. The attached letter from the applicant, dated January 13, 1997, details the appellant's business and request for appeal. DISCUSSION: Recently, the city received a complaint regarding Mark Michael's home occupation. The city conducted an investigation and determined that Mark Michael was operating a home occupation involving warehousing and distribution of merchandise produced off the site, without a permit, and determined that he must apply for a Home Occupation Permit. The attached letter was sent on December 13, 1996 in response to the investigation. The letter indicates that the home occupation must comply with the ordinance, by granting of a home occupation permit, or be discontinued. When a person wishes to carryon an occupation in or from their home, the Zoning Ordinance requires that a home occupation permit be issued. A home occupation may be permitted in residential zoning districts if the requirements of Section 6.8 of the Ordinance are met. The requirements of this section are as follows: 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER A. All material or equipment shall be stored within an enclosed structure. B. Operation of the home occupation is not apparent from the street right-of-way. C. The activity does not involve warehousing, distribution or retail sales of merchandise produced off the site. D. The home occupation may be carried on by persons residing in the dwelling unit and not more than one employee who does not reside in the dwelling unit. E. The home occupation shall be carried on wholly within the principal structure. Space within the dwelling devoted to the home occupation does not exceed 10% of the floor area or 300 square feet, whichever is greater. No portion of the home occupation is permitted within any attached or detached accessory building. F. Exterior displays, signs (other than those permitted under the Sign Ordinance), and outside storage of materials shall not be permitted. G. Objectionable noise, vibration, smoke, dust, electrical disturbances, odors, heat, glare or other nuisance factors shall not be discernible at the property line. H. The home occupation shall not create excessive automobile traffic within the neighborhood. Mark Michael met with Don Rye, Planning Directorin early January, 1997 to discuss the requirement of the home occupation permit. The Planning Director indicated that warehousing or distribution of merchandise produced off the site is not permitted as a home occupation under the current ordinance. According to the applicant, the home occupation, M&M Vending, has been in existence in Prior Lake since 1989. The business includes warehousing food/vending products to be delivered and sold in vending machines. Attached is a copy of the Home Occupation Ordinance in place at that time. In 1989, the Zoning Ordinance permitted home occupations subject to approval by the Planning Commission. The ordinance listed several examples of typical home occupations but did not list warehousing or distribution. There is no record of Planning Commission approval of Mr. Michael's home occupation. Mark Michael contends that because he was operating his home occupation prior to the change of ordinance in 1995, and that the previous ordinance did not prohibit warehousing or distribution of merchandise produced off the site, that he should be grandfathered in and granted a home occupation permit. Staff s conclusion is that the appellant never applied for a home occupation permit. Therefore, the interpretation is that he was and continues to run a home occupation that is illegal (no permit granted). Warehousing and distribution have never been a permitted home occupation. There is no way of knowing if the Planning Commission would have 97-005pc.doc Page 2 granted a home occupation permit for Mr. Michael's in 1989 or anytime prior to the change in the ordinance. Staff s opinion is that it would not have meet the ordinance in place at that time, but it is difficult to speculate if a variance would have been granted or conditions place on the permit to permit the proposed use or possibly the permit would have been granted without the warehousing activity. The appellant could have applied for a home occupation permit, but he did not. Therefore, he cannot be grandfathered in and must meet the current requirements to receive a home occupation permit. AL TERNA TIVES: 1. Recommend to the City Council that it uphold the staff interpretation of the ordinance. 2. Recommend to the City Council that it accept the appeal and find that Mr. Michael's home occupation is legal and in compliance with City Code or can be grandfathered in under the old ordinance. 3. Defer action on this request for specific reasons. RECOMMENDATION: Staff recommends Alternative No.1. ACTION REQUIRED: Motion and second expressing the opinion of the Planning Commission. 97-005pc.doc Page 3 Resolution and Minutes L:\TEMPLA TE\FILEINFO.DOC PLANNING COMMISSION MINUTES FEBRUARY 10, 1997 1. Call to Order: The February 10, 1997, Planning Commission meeting was called to order by Chairman Criego at 6:32 p.m. Those present were Commissioners Criego, Stamson, V onhof, Wuellner and Kuykendall, Director of Planning Don Rye, Planner Jenni Tovar and Recording Secretary Connie Carlson. 2. Roll Call: V onhof Wuellner Stamson Kuykendall Criego Present Present Present Present Present 3. Approval of Minutes: MOTION BY KUYKENDALL, SECONDED BY STAMSON, TO APPROVE THE JANUARY 27,1997, MINUTES AS SUBMITIED. Vote taken signified ayes by Kuykendall, Criego, Wuellner, Stamson and V onhof. I MINUTES APPROVED. 4. Public Hearings: None s. Old Business: None 6. New Business: A. CASE #97-005 MARK MICHAEL - APPEAL OF HOME OCCUPATION. Planner Jenni Tovar presented the Staff Report. The City received a complaint regarding Mark Michael's home occupation. An investigation determined Mark Michael was operating a home occupation involving warehousing and distribution of merchandise produced off the site, without a permit, and determined he must apply for a Home Occupation Permit. A letter was sent indicating the home occupation must comply with the ordinance, by granting of a home occupation permit, or be discontinued. Mark Michael contends he was operating his home occupation prior to the change of ordinance in 1995, and the previous ordinance did not prohibit warehousing or MN02I097.DOC PAGEl distribution of merchandise produced off the site, and felt he should be grandfathered in and granted a home occupation permit. Staff's conclusion is the appellant never applied for a home occupation permit. Therefore, the interpretation is, he was and continues to run a home occupation that is illegal (no permit granted). The appellant could have applied for a home occupation permit, but he did not. Therefore, he cannot be grandfathered in and must meet the current requirements to receive a home occupation permit. Recommendation was to uphold staff's interpretation of the ordinance. Comments from the public: Mark Michael, 4190 Eau Claire Trail, said he initially talked to the Prior Lake Planning Department and discussed the idea of expansion with a planner and felt he did not need a permit. The developer and neighborhood Windsong Association were aware of his intention to have a business in his home and had no objections. He felt the City was aware of his intentions when the building inspector questioned his large garage. The Windsong Association requested a copy of the Home Occupation Ordinance from the City and concluded Mr. Michael's business did not need a permit. Mr. Michael started his business in 1989 in another home in Prior Lake and stated the business has been growing since that time. He feels the complainant has misrepresented the facts to the association and the City. Mr. Michael presented a map of the neighborhood showing his home and the neighbors supporting him. He stated he located his family in Prior Lake and plans on possibly expanding his business to the business park. Mr. Michael feels he has complied with the regulations and should be grandfathered in under the ordinance and continue to do business out of his home. Criego: . Asked applicant when he contacted the City with the permit. . Michael said around September of 1992. His house was completed in April of 1993. . There is no documentation regarding the approval of a home occupation. . Michael said he is using approximately 182 sq. feet for storage. Basically he warehouses candy bars, coffee and potato chips. Three freezers contain sandwiches. The office space is 143 sq. feet. The main levels are approximately 800 sq. feet not including the basement. . A driver leaves Michael's home at approximately 6:00 a.m. in a van to start deliveries. Michael has four suppliers with the most frequent supplier delivering to the residence once a week. The trucks are the size of a gas truck and there are no semi-trailers. Other suppliers deliver to the residence every 6 to 8 weeks. Approximately 6 to 8 deliveries are made per month. Stamson: . Asked about the design of the garage. MN021097.DOC PAGE 2 . Michael said there is extra heating, 220 volts for the freezers and ceiling fans to keep it cool. All were installed with the original construction of the garage. Ralph Heuschele, 10315 Thomas Ave S., Bloomington, the manager ofH & H Land Development of Windsong, President of the Association and member of the Board of Directors said he has been involved in the operation of the land development from its inception. He has been aware of the ongoing controversy between the neighbors. About a year ago the Windsong Association appointed a committee to take a look at a variety of issues and were identified as covenants compliance issues. It is his understanding someone on the committee contacted the City of Prior Lake on Home Occupation regulations. The result of the inquiry was that there were no licensing requirement they (the committee) could identify. A report was issued, which does not speak to the issue of city licensing. The Board of Directors adopted that policy for the association. Mr. Heuschele also asked Mr. Frank Worrell, a neighbor of the Michaels, if there were any problems with the business. Mr. Worrell responded he and his wife did not. Planning Director Don Rye commented the main reason this appeal is before the Commissioners is to determine whether or not the conditions of the Ordinance as they exist, been correctly applied in this case. The issue is not whether it is a nuisance or anything of that nature. Comments from the Commissioners: V onhof: . Questioned the Ordinance for 1989. There is no documentation on the building permit. . There are 8 criteria that have to be met under the Ordinance. . The current ordinance states you cannot warehouse products. . Mr. Michael said there is no documentation stating he did not need a home occupation permit. Criego: . There are two issues to address. Does the business fit the ordinance as it now states? and, . Whether or not there was some level of approval prior to the last modification to the ordinance. . It appears there was verbal approval from the City that gave everybody the appearance it was legal. Stamson: . The use is in violation of conditions (c) and (e) based on square footage and the activity. . The interpretation of the 1989 ordinance, most or all of home occupations should have had a permit. MND21097.DOC PAGE 3 . Appellant states he was given word from the City that it was not required. It may have been a misinterpretation. Given the testimony by some of the people I am satisfied the question was brought up. The building inspector questioned it at the time and was told the use and did not question the need for a permit. . The City had ample opportunity to question the use of the garage. There is nothing specifically in the ordinance prohibiting the business. . Mr. Michael made a good faith effort to comply. . The two questionable portions of the new Ordinance were not in existence when the business started. . Given the number of written testimonials from neighbors, they had no problem with the business. . It is not jeopardizing the community. . In favor of grandfathering as a use. Wuellner: . When the applicant built his house in 1993, he notified his neighborhood association, called the City who said he didn't need a permit and proceeded to build his house. . You would not normally get written confirmation stating you do not need a permit. Mr. Michael proceeded in good faith. . He should be grandfathered in and the fact he did not have a permit does not make any sense. He didn't need one. . The intent of the new ordinances is to get businesses who are getting too big, out of the neighborhood and into the business areas where they belong. How will the City deal with business who have outgrown the home and do not comply with the ordinances? This is a procedural issue the City has to deal with. . Rye responded the issue is not if you like the neighbor or not, it is being reviewed as a violation of the ordinance. That is what staff acts on. . Does not read the ordinance the way the City does and feels Michael should be grandfathered in. Criego: . Agreed with Stamson and Wuellner that Michael made every intent to do his part in trying to get a permit.t. Read the Ordinance a number of times and still gets confused with the language. . Michael currently does not meet the new ordinance but started the business previous to the change and should be grandfathered in. MN02I097.DOC PAGE4 Kuykendall: . Michael did not obtain a home occupation permit in 1989 in his previous Prior Lake home. . The issue is what happens next week when the business doubles in size? When will you go to another location? . Michael responded when the business impacts the neighbors, with more products and deliveries. . Michael stated he is also a nurse. . Generally support staff s recommendation but understands the situation, but where do you draw the line? When does it become a problem? . Normally the City does not like these types of occupations in residential areas. That was the intent. The Ordinance was written that way based on input from the community. Supports the Ordinance and staff. Criego: . Would like to grandfather the business in at the existing square feet. With any further growth he would have to go to the business park. . Keep in mind why the Planning Department makes these decisions. The Planning Department is doing exactly what they are told to do. Without written proof they have to take it through the required process. MOTION BY WUELLNER, SECOND BY CRIEGO, TO RECOMMEND TO CITY COUNCIL THE PROPERTY AT 4190 EAU CLAIRE TRAIL WITH THE HOME BUSINESS OPERATING BE CONSIDERED A LEGAL NON-CONFORMING USE. Commissioner Wuellner went on to state the home occupation should be grandfathered in because the Planning Commission's interpretation of the Ordinance in effect at the time the house was built the Ordinance did not contain specific language supporting the requirement for a home occupation permit, and the property owner in good faith called the City Planning Department and was told a permit was not required based upon testimony and documentation at this hearing. Open Discussion: Wuellner: . I am in support of the new Ordinance as written and support home occupations as they grow are moved out of the home and into a business district. . It should be pointed out to City Council there should be conditions if this business expands with the number of employees or deliveries or whatever is impacting the neighborhood be moved out of the home. . Rye stated that is a condition of the Ordinance at the time. It says you cannot expand or intensify the operation. MN021097.DOC PAGES Kuykendall: . Asked for the definitions of accessory garages and structures. V onhof: . Is there any precedent grandfathering in a non-permitted home occupation? . Rye said there is a procedural issue involved. V onhof recommends to the City Council all new home building permit applications be issued with a line asking if there is an accessory use on the property under this structure. It would be a simple housekeeping solution for inspections. Kuykendall said it would be useful to use a stamp on the blue print by the building inspector stating "No Home Occupancies Allowed Without a Permit", so it is recorded and documented. There was a brief discussion on warehousing for home occupations. The intent is to minimize noise, visual impact and traffic. Vote taken signified ayes by all. MOTION CARRIED. B. 1996 VARIANCE SUMMARY REPORT Planner Jenni Tovar presented the Staff Report. During 1996 the Planning Commission reviewed 41 requests for variances (27 applications). This is down from 43 applications and 78 requests in 1995. The nature of the individual requests and their disposition are contained in the attached table. Of the 41 requests heard, 25 (61%) were approved, 8 (24%) were denied, and 6 (15%) were withdrawn. The most common request was for a variance from the Ordinary High Water Level (OHWL). The most common request in 1995 was for side yard setback variances. The next most common request was for a variance from the front yard setback requirement. Comments from the Commissioners: Kuykendall suggested bringing the report back with more information showing variances from the past few years, what percentage of the variances were in the Shoreland District, how many were appealed to City Council and reasons for approval or denial. C. 1996 PUD SUMMARY Planner Jenni Tovar presented the Staff Report. MN02I 097.DOC PAGB6 8. . :3 ,-3 ~l7 CJ;; ()VJCj l rY/ r',1ctteS . Councilmember Mader said that a Public Hearing on several items at once could be confusing. If there were more than one hearing, it could work out better. . Councilmember Kedrowski said there was only three projects that would be addressed, and very few residents are involved with two of them. . City Manager Boyles suggested that each item would be explained, and there would be an itemized agenda, so it should go smoothly. . Councilmember Mader expressed concern that citizens would have the opportunity to speak. . Acting Mayor Schenck called the question. Upon a vote, ayes by Kedrowski, Mader, and Schenck, the motion carried. NEW BUSINESS: Item 8E, Resolution 97-18 Denying an Appeal from the Decision of the Zoning Officer Relating to Home Occupation was moved to the first item of New Business by General . Consent. . City Manager Boyles introduced the item and noted that a letter had been received from former Assistant Planner Deb Garross. . Planning Director Rye explained the background. The home owner is operating a home vending business, and has not obtained a home occupation permit. There is no documentation of approval on file that the Michaels ever applied for a home occupation permit. The City received a complaint in October of 1996. In December of 1996, the City requested that Mr. Michael apply for a permit or cease operation of the home occupation. This was to set the process in motion that would allow Mr. Michael the opportunity to appeal the Zoning Officer's decision. Mr. Michael is appealing on grounds of the interpretation of the ordinance. Staff has concluded that Mr. Michael is required to obtain a home occupation permit or cease operation of the home occupation. The present activity cannot be "grandfathered in" because there is no record of any such permit being approved in the past. . Jim Bates of Huemoeller & Bates, attorney for Mr. Michael, noted that the Planning Commission recommendation was that it be grandfathered in. The business has existed since 1989, it should be assumed that it was thought to be in conformance during that time. He said it is ridiculous to assume that the list of home occupations in the zoning ordinance that existed then, while it lists home occupation, would exclude all those occupations not on the list. He said there was minimal delivery activity, no change to the residential character of the neighborhood. There was only one employee and very infrequent deliveries. 3391.DOC 3 . Councilmember Mader questioned the relevancy of those points. The real issue, he said, was whether the use conformed when the business was started. He asked for the City Attorney's opinion. . City Attorney Pace said it was her opinion that the Michaels position if extended could reach absurdity. She said she does not support the issue that the 1989 ordinance "other than those listed.." meant that they did not need a permit. The question for the City Council is whether warehousing is a permitted use. She noted that Deb Gaross' letter had not been reviewed by the Planning Commission. . Attorney Bates said that businesses not listed in the ordinance are not clearly subject to the zoning ordinance. Also, the City added warehousing. He objected to the introduction of Deb Garross' letter. He said that his client, Mr. Michael, had told the Planning Commission that he spoke with "someone" in the Planning Department, who he ''thought'' was Deb Garross. . Councilmember Kedrowski asked Planning Director Rye if food storage required a special license from the Department of Agriculture, or if the City was responsible. . Planning Director Rye said the City was not responsible for that type of licensing . Councilmember Kedrowski asked Attorney Bates if Mr. Michael had a license for warehousing food. . Attorney Bates said that was a "red herring" to bring this up now, it was irrelevant. . Councilmember Kedrowski said it was relevant because the City was being asked to grandfather. . Councilmember Schenck said he recalled a similar case in which a commercial truck was stored at a residence. The intent of this kind of zoning ordinance is to separate businesses from residences. MOTION BY KEDROWSKI SECOND BY SCHENCK TO APPROVE RESOLUTION 97- 19 DENYING AN APPEAL FROM A DECISION OF THE ZONING OFFICER RELATING TO A HOME OCCUPATION. RS 97-19 Denying an Appeal from a Zoning Officer for Home Occupation Upon a vote, ayes by Kedrowski, Mader, and Schenck, the motion carried. . Councilmember Schenck asked would there be a time frame, six months or so, to wind down use? . Planning Director Rye said he was not sure, the resolution would take effect immediately, so it would be illegal for him to operate out of home. 3397.DOC 4 MOTION MADER SECOND KEDROWSKI FOR CITY STAFF AND MR. MICHAEL TO MEET AND ESTABLISH A TIME FRAME FOR COMPLIANCE WITH THE RESOLUTION, AND REPORT THIS AT THE APRIL 7 CITY COUNCIL MEETING. Upon a vote, ayes by Kedrowski, Mader, and Schenck the motion carried. A. Consider Approval of Resolution 97-14 Approving Preliminary Plat for "Maple Hills 2nd Addition" . City Manager Boyles introduced the item. The item was first considered on September 16, 1996 and tabled to October 7, 1996 to allow the City Attorney to comment on whether or not the plat can be denied because utilities were not immediately available. It was tabled on October 7 so that it could be considered concurrently with the preliminary plat of Knob Hill North. . Councilmember Mader asked why the Planning Commission action was not unanImous. . Planning Coordinator Kansier said the issue was timing. MOTION KEDROWSKI SECOND MADER TO APPROVE RESOLUTION 97-14 APPROVING THE PRELIMINARY PLAT FOR MAPLE HILLS SECOND ADDITION. Upon a vote, ayes by Kedrowski, Mader, and Schenck, the motion carried. B. Consider Approval of Ordinance 97-XX Rezoning Property from C-1 (Conservation) District to R-1 (Suburban Residential) District and Resolution 97-15 Approving the Plat for "Knob Hill North". . City Manager Boyles introduced the item. The ordinance is recommended to be tabled to the March 17 meeting when there are four Councilmembers present. He recommended acting on the resolution subject to approval of zoning. . City Attorney Pace explained that they would have 45 days to OK zoning, or the resolution approving the preliminary plat would be null and void. MOTION KEDROWSKI SECOND MADER TO TABLE ORDINANCE 97-XX REZONING PROPERTY FROM C-1 TO R-1 DISTRICT. Upon a vote, ayes Kedrowski, Mader, and Schenck, the motion carried. . Planning Coordinator Kansier read language that would be added to the resolution present in the agenda report for this item, which added the condition of rezoning within 45 days. RS 97-14 Preliminary Plat for Maple Hills 2nd Add'n RS 97-XX Rezone Property from C-2 to R-l RS 97-15 MOTION KEDROWSKI SECOND MADER TO APPROVE RESOLUTION 97-15, Rezoning APPROVING THE PLAT FOR "KNOB HILL NORTH" ADDING THE KnobHill North 3397.DOC 5 " D \1\ e ~ · t 1 , Rtf Miscellaneous L:\TEMPLA TE\FILEINFO.DOC STATE OF -MINNESOTA DISTRICT COURT COUNTY OF SCOTT FIRST JUDICIAL DISTRICT CASE TYPE: 14. DECLARATORY JUDGMENT ---------------------------------------------- Court File No. City of Prior Lake, a Minnesota municipal corporation, Plaintiff, vs. SUMMONS Mark A. Michael individually and, d/b/a M & M Vending, Defendants. ----------------------------------------------- THE STATE OF MINNESOTA TO THE ABOVE-NAMED DEFENDANTS: You, and each of you, are hereby summoned and required to serve upon the Plaintiff's attorney an Answer to the Complaint which is herewith served upon you, within twenty (20) days after service of this Summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you, and each of you, for the relief demanded in the Complaint. Dated: August /:3 , 1997. CAMPBELL KNUTSON Professional Association By: t.", tl L t) uesan Lea Pace, #199345 Matthew K. BroId, #218558 Attorneys for Plaintiff 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Telephone: (612) 452-5000 .. 44310 STATE OFMINNESOTA DISTRICT COURT COUNTY OF SCOTT FIRST JUDICIAL DISTRICT CASE TYPE: 14. DECLARATORY JUDGMENT Court File No. City of Prior Lake, a Minnesota municipal corporation, Plaintiff, vs. COMPLAINT Mark A. Michael individually and, d/b/a M & M Vending, Defendants. Plaintiff, for its claims for relief, states as follows: 1. Plaintiff City of Prior Lake, (hereinafter "Plaintiff" and the "City") is a Minnesota municipal corporation with its principal office located at 16200 Eagle Creek Ave. S.E., Prior Lake, Scott County, Minnesota 55372. 2. Defendant Mark A. Michael (hereinafter "Michael"), is an individual residing at 4190 Eau Claire Trail, Prior Lake, Scott County, Minnesota 55372. 3. Defendant Michael operates a vending business known as "M & M Vending" which, according to the records of the State of Minnesota, is not a Minnesota corporation or other registered legal entity, but rather is the name under which Defendant Michael operates his warehousing and vending business (collectively referred to herein as "Defendants"). .t- 44310 2 4. -j)efendant Michael is the owner of real property located in the City of Prior Lake described as Lot 4, Block 5, Windsong on the Lake. The street address is 4190 Eau Claire Trail, Prior Lake, Minnesota. The property is located in a residential neighborhood development. 5. Since 1989 the Defendants have been operating a vending business from the home at 4190 Eau Claire Trail. The vending business consists of warehousing food and products. 6. . The warehousing of food and products for a vending business is not a permitted use in a residential neighborhood under the City's Zoning Ordinance, and has not been a permitted use in a residential neighborhood at any time. 7. At the time the Defendants commenced their vending business in 1989, the City Zoning ordinance prohibited "home occupation" uses except certain specific types of home occupations. The ordinance stated, in relevant part: "Any home occupation such as an art studio, dress making, teaching or the professional office of a physician, dentist, lawyer, engineer, architect or accountant, may be permitted..." Prior Lake Zoning Ordinance section 5-5-8. - . 8. The Ordinance required property owners to obtain a permit from the City before conducting a "home occupation. " The Defendants did not apply for or obtain a "home occupation" permit before commencing their business in 1989. 9. In 1996, the City of Prior Lake duly adopted certain amendments to its Zoning Ordinance to further restrict the types of home occupations allowed in residential neighborhoods. The amendments prohibit "home occupations" in accessory structures, whether attached or detached, and prohibited retail sales and warehousing .I 44310 3 activity in re~idential areas. A copy of the Zoning Ordinance amendments are attached hereto as Exhibit A and incorporated herein by reference. 10. Under the City Code as amended, a qualified "home occupation" can be maintained in the City of Prior Lake only after approval from the City and the issuance of a home occupation permit under City Code section 5-5-8. 11. To be eligible for a "home occupation" permit under the amended' , ordinance, the property owner must meet certain criteria set forth in the ordinance. 12. - The Defendants applied for a "home occupation" permit in 1997, after being informed by the City that the warehousing and vending business use of the residential property was not in conformance with the City Zoning Ordinance. 13. The City reviewed the Defendant's request for a permit and denied the permit request. The City found the Defendants did not meet the standards in the ordinance necessary to be granted a "home occupation" permit. The City also found the Defendant's did not apply for, and were not issued a "home occupancy" permit prior to commencing their business in 1989. Additionally, the City Council found that since commencing their business in 1989, the Defendants have been operatiJ?g their business in violation of the City Zoning Ordinances pertaining to residential areas. A copy of the resolution reaffirming the denial of a "home occupation" permit is attached hereto as Exhibit B. 14. The City has repeatedly informed the Defendants of the requirement that the warehousing operation be discontinued or relocated to a zoning district which would permit warehousing. The City sent letters to the Defendants setting forth the requirements on December 13, 1996, March 11, 1997, March 28, 1997, and June 25, ~ 44310 4 1997. The -:Qefendants continue to use the property at 4190 Eau Claire Trail as a warehousing operation in violation of the City Code. COUNT ONE (DECLARATORY JUDGMENT) 14. The City is entitled to a declaratory judgment determining that the City's Zoning Ordinance prohibits the use of the Defendant's property for a warehousing operation. - COUNT TWO (pERMANENT INJUNCTION) 15. The City does not have an adequate remedy at law. 16. The City is entitled to a permanent injunction barring Defendant's from using the property at 4190 Eau Claire Trail, in the City of Prior Lake, for a warehousing operation. WHEREFORE, Plaintiff City of Prior Lake requests judgment as follows.: 1. Declaring that the Prior Lake Zoning Ordinance prohibits the use of Defendant's property for a warehousing operation. 2. Granting the City of Prior Lake a permanent injunction barring Defendants from operating the warehousing operation; and 3. Awarding the City its costs and disbursements. r 44310 5 Dated: Aug~st)!l, 1997. CAMPBELL KNUTSON Professional Association B.y: f~ k/Jaa- St:lesan Lea Pace, #199345 Matthew K. BroId, #218558 Attorneys for Plaintiff 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Telephone: (612) 452-5000 ACKNOWLEDGEMENT The undersigned hereby acknowledges that costs, disbursements and reasonable attomeysand witness fees may be awarded pursuant to Minn. Stat. ~ 549.21, Subd. 2, to the party against whom the allegations in this pleading are asserted. ~?~ Sues an Lea Pace, #199345 ~ ~ 44310 6 STATE OF-MINNESOTA DISTRICT COURT COUNTY OF SCOTT FIRST JUDICIAL DISTRICT CASE TYPE: 14. DECLARATORY JUDGMENT ---------------------------------------------- Court File No. City of Prior Lake, a Minnesota municipal corporation, Plaintiff, STIPULATION OF DISMISSAL vs. - Mark A. Michael individually and, d/b/a M & M Vending, Defendants. ----------------------------------------------- It is hereby stipulated by Mark A. Michael individually and, d/b/a M & rv1 Vending, by and through their attorney, Joseph W. Lawver, and the City of Prior Lake, by and through its attorney, Suesan Lea Pace, that the above- entitled action may be and hereby is dismissed without prejudice and without costs and disbursements to either party. Dated: ~ IDt,QQ1- CAMPBELL KNUTSON Professional Association By: ~ flu- uesan Lea Pace, #199345 Attorneys for Plaintiff 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Telephone: (612) 452-5000 52474 '. Dated: 9/;6/91 / / 52474 o ph Lawver, # A torneys for Defendants 1800 Fifth Street Towers 150 South Fifth Street Minneapolis, MN 55402 Telephone: (612) 672-3777 2 Correspondence L:\TEMPLA TE\FILEINFO.DOC CAMPBELL KNUTSON Professional Association Attorneys at Law * * * Joel J. Jamnik Andrea McDowell Poehler Matthew K. Brokl* John F. Kelly Matthew J. Foli Marguerite M. McCarron George T. Stephenson I j, Thomas J. Campbell Roger N. Knutson Thomas M. Scott James R. Walston Elliott B. Knetsch Suesan Lea Pace (612) 452-5000 Fax (612) 452-5550 Writer's Extension: 232 Writer's Fax: 452-5550 * Also licensed in Wisconsin Of Counsel: Gary G. Fuchs September 18, 1997 Joseph W. Lawber, Attorney at Law 1800 5th St. Towers 150 S. Fifth_Street Minneapolis, MN 55402 RE: CITY OF PRIOR LAKE vs. MARK A. MICHAEL, et al. Dear Mr. Lawber: The above-referenced matter was not filed with the Court and, therefore, I enclose the original Stipulation and Dismissal, along with the original Summons and Complaint. Very truly yours, CAMPBELL KNUTSON Professional Association BY"~ Matthew K. Bro MKB/kmh Enclosures cc: Frank Boyles 55447 Suite 317 . Eagandale Office Center · 1380 Corp9rate Center Curve · Eagan, MN 55121 Scott Joint Prosecution Association Patrick }. Ciliberto · Lisa A. Skoog · Kari A. Lindstrom 129 South Holmes Street :""'...::~:~'.. C<:.:,.~J c:::, fS.. 0 \\ n ~ ......~ \\ r' \.(-'7 L-, \':.../ LS p'Q. Box 197 . \ II r:::=:"~._': ! I Shakopee, Minnesota 55379 \ V; II 9' \i (612) 445-7724 I:" \ SEP I 6 19 'I ':\ (612) 445-7728 (Fax) i \\ 'I \ n \ UuL I September 15, 1997 Ms. Jenni Tovar, Planner City of Prior Lake 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372 Re: Mark Michaels Dear Jenni: I haven't heard from you concerning Mr. Michael since we talked in late July. Jenni, I assume there's nothing for me to do at this point. If I'm wrong, please let me know. Very truly yours, P~Ciliberto PJC:lal Prosecuting Attorneys for the Cities of: Belle Plaine · Elko · Jordan · New Market · Prior Lake · Savage · Shakopee FILE COpy -- September 5, 1997 Suesan Lea Pace Campbell, Knutson, Scott and Fuchs, P A 1380 Corporate Center Curve, Suite 317 Eagan, MN 55121 RE: Mark Michael Home Occupation Dear Suesan, On Tuesday September 2, 1997 an inspection of Mark Michael's residential garage, located at 4190 Eau Claire Trail, was completed. Jay Scherer, Building Inspector, and I found no warehousing/distribution of food/vending related products. There was an empty older unused pop machine and ice cream machine. Mr. Michael stated these were in need of repair/being repaired. Jay and I agreed, based on the condition of the machines, that they needed repair or were in the process of being repaired. Such a use (repair) meets the requirements of home occupation. After the inspection of his garage, Mr. Michael showed us his leased space at 16224 Main Avenue. The food/vending related products were stored there along with freezers/coolers for perishables. The vending business located at 16224 Main is a permitted use in that zoning district (B-2). Based on the inspection of Mr. Michael's residential garage and his leased space on Main A venue, the Planning Department has determined that the illegal warehouse/distribution of retail merchandise produced off the site relating to Mr. Michael's home occupation has been removed from his residence to an appropriate zoning district. His home occupation is no longer in violation of City Code and we will continue to process his home occupation permit application. Please call me if you have any questions. Sincerely, (./\ ~{"",,1~ !-~i Tovar Planner c: Frank Boyles, City Manager Mark Michael, 4190 Eau Claire Trail 16200 ~lt!F&~\~~~g~~~76Q<t?~~~mfrJ~c5?f55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER CITY OF PRIOR LAKE 16200 EAGLE CREEK AVENUE SE, PRIOR LAKE, MN 55372 . Date: ~ ,- d- \ .... '1l Number of pages including cover sheet: TO:&m From: ~~ Tuvrl-fL- City of Prior Lake Phone: Fax phone: t1L-ll - lJ lJ (pq t-J '-\ 1-(; (p) J I Phone: Fax phone: (612)447-4230 (612)447-4245 cc: REMARKS: o Urgent o For your review 0 Reply ASAP o Please comment -r1vL QJ[~ ~~~~ ~ ~~06 ~ ~~~. ~'vf~~ r~~> FILE COpy August 20, 1997 Mark Michael 4190 Eau Claire Trail Prior Lake, MN 55372 RE: Home Occupation Dear Mr. Michael: I have faxed the City Attorney a copy of your lease agreement. The lease indicates a date beginning 9/1/97. According to the summons, your 20th day for a response to the complaint ends on September 2, 1997 . We will make ourselves available on and prior to that date to complete an inspection of your home and leased space. This is to insure the violation of warehousing at your residence has been removed and that the new location is permitted under the Zoning Ordinance. Please call me when you have relocated your food products and equipment. The sooner we can make the inspection and verify the relocation, the sooner we can notify the City Attorney. The City Attorney has agreed to withdraw the complaint if city staff can verify the relocation on or prior to September 2, 1997. If requested by September 2, 1997, the City Attorney can make accommodations to grant you a 5 day extension of time allowed for you to answer the complaint. Please call me if you have any questions. Sincerely, .~ JVt~ Planner c: Susan Lea Pace, City Attorney 16200 Ea~~Jt9&~\~~r~~~7op<l5J~~%fi1t~gfa 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER -- .... ,~.~ :- ~/ ~ W<\ ~(tbS · CITY OF PRIOR LAKE 16200 Eaole Creek Avenue S.E. - Prior Lake, MN 55372 FAX #; 447-4245 - TELEPHONE;; (612) 447-4230 F,t3.X COVER SHE:! OAI C~ 8 '0.0 ,1'\ TIME: ;): J S L.{ 5 ~ ..-5' S-SD , TO: ~ O_~-1'I . . FROM: ~ .11 /1 "C 1/1/1 ,.. ,,/ ~ IJ SUEJECT: yr Ivtff lLl ~(.LfL)L FAX#: MESS~~&-::r; ~~~ ;l!!: :4~ WJ d~J sc.itA ' C,U/ ~ cu;)fvl J11j)JeS ~ we r~ r'fL~ "/(. itJSftd hM hOJ5e t ~M wuJKJ ,1fC(CfL- 1() iL1~(/fe.. /tJIYlpll'an~. CexU MR~(~Ja~- (~ ~ hQlje crreSiJDrtS. Number at Pages Sent (lncluding Tnis Page): 1 FILE COpy August 19, 1997 Mark Michael 4190 Eau Claire Trail Prior Lake, MN 55372 RE: Business Location Dear Mr. Michael: The proposed relocation M&M Vending, your home occupation involving warehousing and distribution of food/snacks/beverages, to the property located at 16224 Main Avenue SE, Prior Lake is permitted under the Zoning Ordinance. That property is zoned B-2 Community Business. The Zoning Ordinance allows "Wholesale Business" as a permitted use in the B-2 district. Office, warehousing, and distribution uses associated with a wholesale business are permitted. If your business should significantly change as not to be a wholesale business and/or take on a different use, then you should contact the Planning Department regarding permitted uses. Please call me if you have any questions. Sincerely, n~~~wJ '!~io~: 16200 Ea~?Jt9&~\~\k~g~~7oP<t?~~e~%fut~g& 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER August 1, 1997 Campbell, Knutson, Scott and Fuchs P.A. A TTN: Suesan Lea Pace 1380 Corporate Center Curve, Suite 317 Eagan,MN 55121 RE: Mark Michael Home Occupation Dear Suesan, Here are copies of the documents relating to Mark Michael's appeal. We originally forwarded this to the criminal prosecuting attorney Pat Cileberto. Apparently this is how zoning violations are usually handled. However, after recent conversations with him and you, we are forwarding the file to you. Mr. Cileberto sent Mr. Michael a letter stating that the file had been forwarded to him and asking him if he had legal representation. On July 30, 1997 Mr. Michael came to the planning office, I spoke with him regarding the compliance of his business. We told him that we would give him 10 days to comply if he wanted. Mr. Michael stated that he did not have the means ofre-Iocating his food products to another location within 10 days. I told him that the Council originally directed staff to work with him to establish a time line for his compliance. He stated that he was working towards compliance. I suggested that he write us a letter indicating the steps he has taken and specifying a date when he would be in compliance. He delivered that letter on July 31, 1997. We are thus forwarding the file to you for civil proceedings to bring resolve the code violations of Mr. Michael. Mr. Cileberto is aware of the forwarding of the file to you. Mr. Michael has indicated that he does have legal counsel, but desires correspondence to go through himself. Please call me or Jane if you have any questions. Sincerely, nn1rYtAJ/fQA/ ld!(Tovar Planner 16200 Eh~fPBIe@~~~~.JE:\IMi15P~~~e!ME~~t:R~ 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER August 1, 1997 Campbell, Knutson, Scott and Fuchs P.A. A TTN: Suesan Lea Pace 1380 Corporate Center Curve, Suite 317 Eagan, MN 55121 RE: Mark Michael Home Occupation Dear S uesan, Here are copies of the documents relating to Mark Michael's appeal. We originally forwarded this to the criminal prosecuting attorney Pat Cileberto. Apparently this is how zoning violations are usually handled. However, after recent conversations with him and you, we are forwarding the file to you. Mr. Cileberto sent Mr. Michael a letter stating that the file had been forwarded to him and asking him if he had legal representation. On July 30, 1997 Mr. Michael came to the planning office, I spoke with him regarding the compliance of his business. We told him that we would give him 10 days to comply ifhe wanted. Mr. Michael stated that he did not have the means ofre-Iocating his food products to another location within 10 days. I told him that the Council originally directed staff to work with him to establish a time line for his compliance. He stated that he was working towards compliance. I suggested that he write us a letter indicating the steps he has taken and specifying a date when he would be in compliance. He delivered that letter on July 31, 1997. Weare thus forwarding the file to you for civil proceedings to bring resolve the code violations ofMr. Michael. Mr. Cileberto is aware of the forwarding of the file to you. Mr. Michael has indicated that he does have legal counsel, but desires correspondence to go through himself. Please call me or Jane if you have any questions. Sincerely, nn tyI-1A 5z00/ lj!(Tovar Planner 16200 Ebgf~?~~~~~~.lfArp~itrP~~We~-Mi~~@~ 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER Memorandum DATE: August 1,1997 TO: File #97-005 FROM: Jenni Tovar RE: Mark Michael Home Occupation The Planning Department is forwarding this file to Suesan Lea Pace to proceed with civil actions against the violator. Originally, we sent this to Pat Cileberto, prosecuting attorney. Attached is a cover letter to Mr. Cileberto summarizing the case. Upon further discussion with Mr. Cileberto and Ms. Pace, it has become apparent that a civil prosecution is the appropriate means of resolving this issue. Because of the necessary Council action, Ms. Pace is familiar with the case. July 31,1997 City of Prior Lake Ms. Jenni Tovar Planner, Zoning Dept. 16200 Eagle Creek Ave. S.E. Prior Lake, MN 55372 -----.1 Dear Ms. Tovar: Our last written correspondence this past spring was to Jane Kansier indicating we had some very serious thoughts to consider. We first retained other legal counsel to assist us in our decision making process. Mr. Paul Anderson of Messerli & Kramer is our legal counsel. However any correspondence should be sent to our home address. If need be I will forward the information to Mr. Anderson. We decided to refinance our existing home to free up some extra monthly cash flow to allow our business to be better able to afford the extra expense of monthly storage. This was completed June 21.1997. We had a lead on possible storage in Savage that was confirmed to NOT be available as we had hoped. Edina Realty is also looking for us as well. We were verv surprised to have received a letter from Scott Co. Joint Prosecution this past Friday. Reason being: while we were gone on vacation we had received a notice of attempted deliverv from the City of Prior Lake. My wife called on July 11,1997 to say that we were now home and could someone resend it or we could S'"~p by to pick it up. Susan had left this message on Connie's voice mail which stated she was in the office that day but away from her desk. No return call received. After talking with Pat CiIlaberto on Friday July 25.1897 he had suggested that I call Jenni Tovar. I did call Jenni Tovar July 25 at 1330 hours and received her voice mail. I explained to you Jenni what had been going on and had asked for a return phone call at that time. As of Thursday July 31 ,1997 when I personally stopped in your office I still had not been afforded a retum phone call. To the best of my memory we had been offered six months by the counsel to resolve the issue of compliance. Page 2 Of 2 We are making strides forward to bring our business with in current city regulations. We hope to do this in the next four weeks. Part of the resolution is to file for a home occupation permit so that we can house our office and park our truck in the garage as is permitted under the revised city ordinance this past May 96. We appreciate your co.operation in this matter as we are working towards the best resolution as quickly as is possible. Sincerely, Mark A. Michael ; i I i ! , !, i i i ~! iJ / I ~J I ""J Scott Joint Prosecution Association Patrick J. Ciliberto · Lisa A. Skoog · Kari A. Lindstrom 129 South Holmes Street P.O. Box 197 Shakopee, Minnesota 55379 (612) 445-7724 (612) 445-7728 (Fax) July 24, 1997 , DJ [g@[gD\Y1 [g. "';::\~ JI. 25"; \1. '-/ Mr. Mark Michael 4190 Eau Clair Trail Prior Lake, MN 55372 Dear Mr. Michael: My office prosecutes for the City of Prior Lake. The city has forwarded your file to our office for review. My understanding is that you are no longer represented by the law firm of Huemoeller & Bates concerning the Notice of Violation directed to you. If you are represented by counsel on the matter Mr. Michael, I would ask that your counsel contact my office. If you are not represented by counsel and wish to discus this matter, please contact me immediately. ~ours(~ PatrickJ. c1 PJC:kjw cc: ~Jenni Tovar Prosecuting Attorneys for the Cities of: Belle Plaine . Elko . Jordan · New Ma;Jiet · Prior Lake · Savage · Shakopee Jul.22 '97 14:18 SJPR TEL 6124457728 P. 1 SCOTT JOINT PROSECUTION ASSOCIATION Patrick J. Ciliberto Lisa A. Skoog 129 South Holmes Street P.O. Box 197 Shakopee, Minnesota 55379 (612) 445-7724 fax: (612) 44Sr7728 FA (including cover) 't'O U!J.---- NUMBER: RE: FROM: Please contact "at 445-7724 if there aloe problems with this transmission OTHER: l..l..... 1L- CONFIJ)ENTTALJTY NOTICE: The dOCUlllcnts accomplln g this fax transmission contain confidential infolmation belonging to the sender which is legl.\IJy privileged. The information is intended only for the lI~tI ofthe person to whom addressed and any disclosure, copying. distribution. or the taking of any action in reliance on or regarding the contents nfthis faxed information is strictly prohibited. If you have received this fax in error, please immediately notify liS by telephone to arran&c for the return of the original documents to us. Jul.22 '97 14:18 SJPR TEL 6124457728 P. 2 HUEMOELLER &, BATES ATTORNEYS AT LAW 1...70 FRANII:UN TaAll POST OFFtc2 sac 67 PilleR Vlllil. """NN~SOTA sun f"f)\(~.@ ~ DW~ ~~ L.'" l 11'\ JAH t 31991 !!\ \ I I' ", I L1 uL 'J January 13, 1997 ~'.phone (6U) ..7-2131 ~~(6'21447-5'21 JAMES D- RATES BRYCE D. HUEMQi\.LER Mr. Donald R. Rye Planning Director City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 HAND DELIVERED Ke: Mark Michael. 4190 Eau Claire Trail, Prior Lake Home Occupation Dear Mr. Rye: This tetter is intended as Mark Michael's notice of appea.l to the Board of Adjustment from the Notice of Viola.tion contained in a letter of December 13, 1996 from Jane A. Kansier, Planning Coordinator, to Mr. Michael. We request that the appeal be placed on the agenda of the Board of Adjustment. and that we be promptly notified of the time and date of the hearing, and supplied with a copy of the staff report t,o the Board of Adjustment. Mr. Michael has been operating a home-based vending business in Prior Lake. known as M&M Vending, since November of 1989. The business operation has not. changed in any material way from that time to the present. He has one employee who comes t.o his house in the morning, loads Mr. Michael~s truck from vending inventory stored in his garage, and leaves to stock vending machines in various locations, returning the truck at the end of the day. The companies that supply product. to Mr. Michael each make deliveries to him once every several weeks. There is very limited traffic to and from his home in connection with the business. At some time in 1990 Mr. Michael determined the business needed ~ore space. lie planned to build a new home in the Windsong development with an oversized garage that would provide increased storage space for his inventory while completely enclosing the operation, to insure the least disturbance to the neighborhood's residential setting. Since this would add significantly to the cost of the home~ he researched the issue of what local regulations might prohibit or ot.herwise regulate his operation. He obtained copies of both the county and cit.y ordinances relating t.o home occupations and discussed his' plans with city staff. He was told by city staff that. under the existing Jul.22 '97 14:19 SJPA TEL 6124457728 P. 3 Mr. Donald R. Rye Page 2 January 13, 1997 ordinances he would not need a permit, and so proceeded with construction of the new home, which was completed in April of 1993. He expected to continue his business for many years and would not have committed to the expense of building this particular house without being assured he was, or would be with the appropriate filings, in compliance with local regulations. When the new home received its final city inspecticlD, Jay, the building inspector, asked the house contractor about the need for the oversized garage. The contractor, M&M Construction (unrelated to M&M Vending), mentioned that Mr. Michael operated a vending business out of his home and needed the additional storage space in connection with the business. No mention of a business permit was made at that time. The issue also came up in 1995 when the Windsong homeowners' association considered amending the declaration of covenants covering the development, including provisions relating to home occupations. The zoning committee, consisting of five owners in the development, researched the issue and obtained a copy of the current home occupation ordinance. This committee also read the ordinance as not requiring a permit for Mr. Michael's business. The planning department apparently takes the position that under the current city ordinance, Mr. Michael'S business requires a home occupation permit and he must pro~ptly apply for one. Mr. Michael has also been told, however, by you and by Jane Kansier, that it is unlikely he would be granted a permit now because his business arguably involves "warehousing" of his vending inventory; and warehousing (not a defined term) is not a permitted activity for a home business under the ordinance as amended in May of 1996. Finally, he has been told that had he applied for (and likely been granted) a home occupation permit under the ordinance as it existed prior to May 1996, his business would have been grandfathered in and therefore not affected by the warehousing prohibition; but the fact he does not have a permit is fatal to the possibility of being exempted from the new ordinance provisions. Mr. Michael believes that, based on his efforts to investigate the permit issue when he started the business, the city cannot now take the position that he should have applied for a permit back in 1990. Moreover, Mr. Michael reports that at a meeting with Ms. Kansier in October of 1996, Jay acknowledged that he had known about Mr. Michael's storage of inventory at the time of the final house inspection in 1993. Jul.22 '97 14:19 SJPR TEL 6124457728 P. 4 Mr. Donald R. Rye Page 3 January 13, 1997 Picture jf you will the conversation in which he described his business to city staff and was told a permit was not required; is it reasonable to expect him at that point to pemand a permit application, in anticipation of an ordinance amendment that could be used several years later to severely disrupt his livelihood? Mr. Michael has made every reasonable effort to conduct his business in a responsible manner and to become aware of and comply with applicable local regulations. He believes that not only was he entitled to rely on city staff's interpretation of the previous ordinance, but that the interpretation was correct. To my understanding, the ordinance prior to May 1996 read: "Any home occupation such as an art studio, dress making, teaching or the professional office of a physician, dentist, lawyer, engineer. architect or accountant, may be permitted..." All these occupations involved services to members of the public who would visit the home, causing a significant traffic increase in residential neighborhoods, and it is reasonable to read the ordinance as being directed only at these types of occupations. Recognizing that the decision appealed from originated in a complaint by a neighbor who has disagreements with Mr. Michael unrelated to the business, and thal there are other more visible home occupations in Windsong that t.o our knowledge operate without permits, we respectfully submit that Mr. Michael's business was a conforming use, without permit, prior to amendment of the home occupation ordinance in May 1996, and that he therefore need not apply for a permit under the present circumstances. James D. Bates JDB:bj cc: M ark Michael Jul.23 '97 13:30 SJPA TEL 6124457728 ;V1.w1=- ;VI; chc..tJ P. 1 /7' '1~ SCOTT JOINT PROSECUTION ASSOCIATION Patrick J. Ciliberto U.. A. Skoog Karl A. Lindstrom 129 South Holmes Street P.O. Box 197 Shakope., Minnesota 55379 (612) 445-7724 fax: (612) 445-7728 DATE; FAX COVER SIIEET Number of Pages ( .. 'f'OOtlU- NUMBER" _c.f4.1. -if d- Lt~ RE: ~ ~\t~O FROM: C~CJ Please co~ ' at 445-7724 ifthere are problems with this transmission ... f\ l 00 (~ I ~ - n r'\ f\ J ( . - '-LJ _ _ ~ t'Jv.- ~ (including cover) TO: ~ 0--.- 0..__ .. CQNFIDENTIALITY NOTICE: The doouments accompanying this fax. transmission contain confidential information belonging to the sender which is legally privileged. The infonnation is intended only for the use ofthe person to whom addressed and any disclosure, copying. distribution, or the taking of any action in reliance on or regarding the contents of this faxed information is strictly prohibited. If you have received this fax in error, please immediately notify Us by telephone to arrango for the return of the original documents to us. July 14, 1997 Pat Cileberto 129 S Holmes PO Box 197 Shakopee,~ 55379 RE: Legal Action for Zoning Code Violation Dear Mr. Cileberto: Enclosed please find documentation relating to an illegal home occupation. A synopsis of events is as follows: . The City received a complaint about business activity at the residence of Mark Michael 4190 Eau Claire Trail. Upon investigation, it became apparent that Mr. Michael had been operating a home occupation in violation of the City Code. . The City notified Mr. Michael of the violation, he appealed staffs interpretation of the Zoning Ordinance to the City Council. . The City Council determined that Mr. Michael was in violation and directed staff to meet with Mr. Michael to work out a schedule for compliance. . Mr. Michael has not been cooperative and has not scheduled a meeting with staff to work out a compliance schedule nor has Mr. Michael brought his home occupation into compliance with City Codes. The City has been working with Mr. Michael for six months now and no resolution/compliance has been reached. We are forwarding the file to you for legal action. Please keep me updated on the actions taken to resolve this matter. Please call if you have any questions. Sincerely, ct~ 4vav Planner C: Frank Boyles, City Manager 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER PS Form 3800, April 1995 i ~ !f If f. I I ~ !;; if ~lf i i ... ~ i m~ ~i i j' lE ~ ! cof-J ~~ j i lB S";;~. i co I 0.; ~ June 25, 1997 Mark Michael 4190 Eau Claire Trail Prior Lake, MN 55372 RE: Home Occupation Dear Mr. Michael: On March 3, 1997, City Council adopted Resolution #97-18, denying your appeal regarding the operation of a home occupation on the property located at 4190 Eau Claire Trail. At that time, the City Council directed staff to meet with you to establish a timeline for compliance with Resolution #97-18 and the City Ordinance. Since then, we have sent you two letters requesting such a meeting. On April 4, 1997, we received a letter asking to delay meeting with you, so that you could have more time to make a decision. It has been nearly three months since that letter, and four months since the City Council passed Resolution #97-18. Furthermore, the City has been made aware of continued deliveries made to your residence. It does not appear you have taken any steps to discontinue the violation; therefore, we are proceeding with official enforcement action. Please be advised that the operation of the home occupation at 4190 Eau Claire Trail is a violation of City Ordinance Section 5-5-8. This is the first and only written notification the City has issued regarding this violation. If you do not comply with the City Code and/or make arrangements to meet with this office to discuss your timeline (as directed by the City Council on March 3, 1997) by July 10, 1997, we will begin formal enforcement action against you. You will NOT receive an additional warning prior to formal enforcement action. Enforcement action may include civil penalties, administrative remedies such as denial or revocation of City permits and licenses, criminal (municipal) court proceedings, and/or an action for injunction or other court order directing the elimination of the violation. If you have any doubts about your rights or obligations under the City Code, please contact your attorney. This is the last letter you will receive. Your next communication from us will involve formal enforcement action. If you, or your attorney, wish to discuss any aspect of your case, you can call me at 447-4230, Monday through Friday, 8:00 A.M. to 4:30 P.M. Sincerely, -/~1\-G (). ~o~ ()~7..ne Kansier Planning Coordinator c: Frank Boyles, City Manager Suesan Lea Pace, City Attorney I :\97files\97 appeal\97 -005\ltr62497 .doc 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER "'C ru -u .JJ -u tn .r 0- 00 I:J ~ , ~~ ~ '. . -- -- DATE: Frank Boyles, City Manager Jane Kansier, Planning coordinato~ May 5, 1997 '-1j TO: FROM: RE: Update on the Status of the M & M Vending Home Occupation at 4190 Eau Claire Trail cc: Don Rye On March 3, 1997, the Council considered an appeal by Mark Michael regarding a home occupation for the property located at 4190 Eau Claire Trail. The Council ultimately denied this appeal and directed Mr. Michael to discontinue this business (see Resolution 97-18). At the same time, the Council directed staff to meet with Mr. Michael to establish a timeline for compliance with Resolution 97-18 and the City Ordinance. After the March 3, 1997, meeting, the staff sent Mr. Michael two separate letters asking him to set up an appointment with the staff. On April 4, 1997, we received a letter from Mr. Michael requesting a delay in this meeting to allow him time to explore his options. In that letter, Mr. Michael states "we have suspended virtually all deliveries to our home business. We are moving closer to compliance but need further time to receive information to aid in our decision making process. " We reported this information to the Council on April 7, 1997, and did not receive any additional directives at that time. Since his letter of April 4, 1997, we have received no additional information from Mr. Michael. He has called to ask some questions, but has not set up an appointment to discuss a schedule for compliance. It has also come to our attention that Mr. Michael is continuing to operate this business, and, specifically, is continuing to receive deliveries at this location. At this time we are looking for some direction on how to proceed in this matter. We can take a "wait and see" approach, we can send Mr. Michael additional letters asking him to schedule an appointment, or we can begin taking the legal steps necessary to force Mr. Michael to discontinue operation of the business. You any also have some other alternatives. Please review this information and let me know your thoughts. I will be happy to try to answer any questions you may have. Enclosures 1:\97files\97appeal\97-005\memo I.doc .& '~",."'."'."....'.'."'.".' . .... ~' VENDIN.G "VENDING ,'SE'RVICES THAT.LIEAVE YOU WITH A GOdDTASTE" April 3,1997 City of Prior Lake Jane A. Kansier Planning' Coordinator 16200 Eagle Creek Ave. S;E. Prior Lake, MN p5372 Dear Ms. Kansier; I am writing to request adelayih our meeting regarding the time frame for compliance with resolution #97~18. \Neareexploringall of aUr options and have made some progress in this matter. We have had our home based business appraised for sale. We will at the very.lea$ need. to refinance in order to afford, additional warehouse space. This iscurreotly in motion. We have suspended virtually all delivery's to our home business~We are moving closer to compliance but need further time to , receive information taaid in our dedsionmakingprocess. Thank you for your understanding and co-operation. JIt~aeI . P_O_ 80x657' Prior Lake,MN 55372 .& March 28, 1997 Mark Michael 4190 Eau Claire Trail Prior Lake, MN 55372 Dear Mr. Michael: In my letter to you dated March 11, 1997, I stated the City Council had directed staff to meet with you to establish a time frame for compliance with the Resolution #97-18. When we last spoke, you indicated you had not set up this meeting since you were exploring your alternatives. Since I have not heard from you since that time, I am writing this letter to ask that you either contact me to set up a meeting as soon as possible. If you would like to delay this meeting, please respond, in writing, to let me know of your intentions. Thank you for your attention to this matter. I look forward to hearing from you. Sincerely, . '/) L./ . 0' ),v,'\....J:- L;(' Nl.',^-~u_/-' () Jane A. Kansier, AlCP Planning Coordinator c: Frank Boyles, City Manager Suesan Lea Pace, City Attorney Don Rye, Planning Director 1:\97files\97 appeal\97 -O05\3-28Ietdoc 16200 Eagle Creek Ave. S.E.. Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTt;NlTi 2JfPLOYER HUEMOELLER & BATES ATTORNEYS AT LAW 16670 FRANKLIN TRAIL POST OFFICE BOX 67 PRIOR LAKE, MINNESOTA 55372 )AMES D. BATES BRYCE D. HUEMOELLER March 12, 1997 Telephone (612) 447-2131 Telecopier (612) 447-5628 Ms. Jane A. Kansier City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 Re: Mark Michael Dear Ms. Kansier: Having received a copy of your letter of March 11, I wish to advise you that I no longer represent Mark Michael and you need not copy me on any further correspondence relating to his case. Thank you. C~~\j\i~~ ''''-'-'~''_/ James D. Bates JDB:bj cc: Mark Michael ~ March 11, 1997 Mark Michael 4190 Eau Claire Trail Prior Lake, MN 55372 Dear Mr. Michael: Enclosed you will find a copy of Resolution #97-18, adopted by the City Council on March 3, 1997, and a copy of the City Council minutes from that date. As you know, at that meeting the City Council directed the staff to meet with you and your attorney to establish a time frame for compliance with the resolution, and to report back to the Council at its April 7, 1997, meeting. We would like to set up this meeting as soon as possible. Some possible dates include Monday, March 17, 1997, Wednesday, March 19, 1997, and Monday March 24, 1997. Please contact me as soon as possible to let me know which date will work for you. If none of these dates are convenient, we can schedule another time. Thank you for your attention to this matter. I look forward to hearing from you. Sincerely, ~.e~ier,~ Planning Coordinator c: Frank Boyles, City Manager Suesan Lea Pace, City Attorney Don Rye, Planning Director Jim Bates 1:\97files\97appeaI\97-005\3-11Iet.doc 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER RESOLUTION 97-18 OVERTURNING THE RECOMMENDATION OF THE PLANNING COMMISSION IN THE MATTER OF AN APPEAL OF A DECISION OF THE ZONING OFFICER RELATING TO A HOME OCCUPATION, CASE NO. 97-005, DENYING THE APPROVAL OF A HOME OCCUPATION FOR MARK MICHAEL ON PROPERTY LOCATED AT 4190 EAU CLAIRE TRAIL MOTION BY: KEDROWSKI SECOND BY: MADER WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, The Ordinance that existed prior to the current ordinance allowed the City Planning Commission to issue permits for home occupations such as an art studio, dress making, teaching or professional offices for a physician, engineer, architect or accountant; and In 1996, the ordinance was amended to prohibit home occupations in accessory structures, whether attached or detached, and to prohibit retail sales and warehousing activity; and Mr. Michael's home occupation consists of warehousing food and products for vending; and The City investigated a complaint relating to the home occupation Mr. Michael was conducting and the requirement to have a permit; and Mr. Michael's has been operating this home occupation from his current residence and previous residence in Prior Lake, since 1989; and the nature of his business is the warehousing and distribution of food products; and Food/vending warehouse and distribution requires a state license, which the Department of Agriculture does not have a record that Mr. Michael applied for or was granted a state license; and Mr. Michael's Realtor obtained a copy of the home occupation ordinance and shared the ordinance with the developer of Windsong and the Windsong Home Owners Association; and The Realtor, Developer and Windsong Neighborhood Association determined the business Mr. Michael's was operating from his home did not require a home occupation permit; and The Prior Lake City Council conducted a hearing on the 3rd day of March 1997, to act on an appeal by Mark Michael of the Zoning Officer's denial of a request to approve the warehousing business operated from home as a home occupation and to grant a home occupation permit; and The Planning Commission has recommended the City Council overturn the decision of the Zoning Officer: . 16200 Ea~lW~~~P~.~~fl~, Minnesota 55372-1714 I Ph. (612) 447-4230 I Fax (61~gt47-4245 AN EQUAL OPPORTUNITY EMPLOYER \ , NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE: FINDINGS 1. The appellant has been operating a warehousing, distribution and vending business d/b/a M&M Vending, from his home since 1989. The property is located in the Windsong neighborhood and legally described as: Lot 4, Block 5, Windsong on the Lake The business involves the receipt at the appellant's home of products produced off-site, the warehousing of those products in a attached garage and the subsequent delivery of those products to various vending machines. 2. City Code permits certain home occupations. A home occupation permit is required in order to operate a home occupation. 3. A warehousing and distribution business is distinguished from a home occupation in that the goods and services are not produced within the home, as required by the City Code. 4. There is no written evidence Mr. Michael's ever applied for or was granted a home occupation permit. 5. The appellant is not eligible for a home occupation permit because the warehousing or distribution of products not produced on the site is prohibited under the ordinance. 6. The Minnesota Department of Agriculture advised the City it has no record that Mr. Michael ever applied for or received a state license to store or handle food products. 7. The decjsion by Mr. Michael's Realtor, developer and Windsong Home Owners Association that a home occupation permit was not necessary is not binding on the City Council. 8. The City Council finds that warehousing was not a permitted home occupation under the ordinance in effect in 1989, when the Michael's built their home. The ordinance in effect in 1989 allowed the City to issue home occupation permits for only those types of activities listed in the ordinance or similar thereto. If a home occupation was not enumerated or similar to an enumerated use, it was not eligible to receive a home occupation permit and therefore prohibited. 9. Upon investigation of the complaint, the Zoning Officer determined (1) Mr. Michael was conducting a warehouse/distribution operation and (2) such an operation was not permitted under the City's Zoning Code. 10. Mr. Michael appealed the decision of the Zoning Officer to the Planning Commission. 11. The Planning Commission reviewed the materials and facts contained in Case File #97-005, held hearings thereon on February 10, 1997, and recommended overturning the decision of the Zoning Officer. , r:\council\resoluti\planres\rs9718cc.doc Page 2 12. On March 3, 1997, the Prior Lake City Council reviewed the appeal and the recommendations of Planning Commission at a regularly scheduled City Council meeting. 13. Neighborhood oppositjon or support, in and if itself, is not sufficient basis to justify a zoning decision. 14. The City Council has considered the effect of overturning the decision of the Zoning Officer upon the health, safety, and welfare of the community. The City has a legitimate interest in assuring that property owners comply with all applicable zoning regulations pertaining to the use of their parcel. 15. The City Council finds that the applicant/appellant does not meet the standards for a home occupation as set forth in Section 5-5-8 of the City Code, and that the appellant has not set forth adequate reasons for overturning the decision of the Zoning Officer. 16. Upholding the decision of the Zoning Officer would require the appellant to comply with Section 5--5-8 of the City's Zoning Ordinance and either discontinue the warehousing operation or relocate the existing business activities to a zoning district which would permit warehousing. 17. The contents of Planning Case File #97-005 are hereby entered into and made a part of the public record and the record of the decision for this case. CONCLUSION Based upon the Findings set forth above and the contents of Planning Case File #97-005, the City Council hereby upholds the decision of the Zoning Officer and over rules the recommendation of the Planning Commission. Mr. Michael's warehousing, distribution, vending business was not permitted under the ordinance in effect in 1989 and therefore is not eligible to be "grandfathered." Mr. Michael's warehousing, distribution, vending business does not meet the criteria in Section 5-5-8 of the City Code for a home occupation. 1. The appellant must cease or relocate the home occupation to met the criteria of the ordinance (Section 5-5-8) to obtain a home occupation permit as required by City Code. , r:\council\resoluri\planres\rs9718cc.doc Page 3 Passed and adopted this 3rd day of March, 1997. YES Andren ABSENT Andren Greenfield ABSENT Greenfield Kedrowski X Kedrowski Mader X Mader Schenck X Schenck NO {Seal} , r:\council\resoluti\planres\rs9718cc.doc Page 4 - . '_._"~_." -- -.-.....__.~. ..._---~-.---~_.. . .~_.__._.._-- .----.- -:. CITY OF PRIOR LAKE 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372 FAX # 447-4245 - TELEPHONE # (612) 447-4230 FAX COVER SHEET ---------- DATE: 02- A "-~I TO: s-v~~ lfCL~O[.U!.- FROM: ,J OA'\M- lOlCU:- SUBJECT: ~\L r'f\.A~ TIME: FAX#: L\-'.l~ '-\ S;} ,.S-~~ MESSAGE: _ ~~ ~ CVV\-if (:~ ~ ;)- ~~D"'~' @()-A,. rlPr~ ~ ::::!;;c\a-c td-I .to ~ -\0 ~V-. ~LVr\~- . '- Jo -f() IJ\. ^ Number of Pages Sent (Including This Page): Lo+CS - - --- --- - ----- ~ ----- - - .-..-...-....- -.---_.~. ...-.----....-.-.-. -:. CITY OF PRIOR LAKE 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372 FAX # 447-4245 - TELEPHONE # (612) 447-4230 FAX COVER SHEET i DATE: r:9-11 -97 TO: ~~Ue,~n!ao., ibtc fl FROM: ~jJn I '"0 var SUBJECT: ~J (~ 4>J.n,n3 OffiCii' cLeU\,.' J(J" TIME: ) 0 .' '-1 S - FAX#: LJ S' d ~. 5:5 5l) MESSAGE: C:-Je- wQt)tt \ \ \i.e. 'rfJUt U) vnrNn'fS On +ht'S -TN. fJ Ja()/)j()(j ('OYh07;<;s/on (eft I u(~-f- n<1h fs ynt!1!-h>7Cj) ((LU)Y/J({VnLPd .~ r{)vYlci l' OV~f-tuvVlt1'\{ cltciS',ur> otfhe- ~nlflJ o {-trG-er, G{.t7(lJ~ ortl.nance diCln f JC'(:Jh' alt (e ,re CL ;c o<t>, LTN Or't-i(nQhu sthk~ rke- r,c > Yh~ cJ (ant 6C permif) I CtV1 dt1Yvt .tt.e tW/ii^t-f/1/ yv-y;ud f G<. ~7 0 tJ d f-r/tl:th e Pbvtto CtJ mf l'j With Y{ cp tJ, tCy~,r-/l/ CJ1 nd .t'huT tLe cd-~' lAJU ~ c{ wv rG. of V7 r S bJ S I N'~S - b elf Number of Pages Sent (Including This Page): J 0 {L d n 'f ? r0\C'S t / en fv(C2J tr-e- Qvc ~(('-)Un eet1-tn . 0-eCL'b-e cv.>> DnV' D { TI f '100 I1M{ ~ iJ-t'<;,'fI'Jn 5, ~~anILS-- ('~ I ) I ) i i _ ?.s On I "J '3 "] C\u ~ s u () -h' i '-1jJ( { n j . ~t)rVv V ... M;. VENDING C"::,,, r;:::> 0 W ~ ",;- i,':.;' 1 r::] , ,', ,', .". ,:,:' ,,~:_._:~'::;~J ,". ' JAN21l9'd1' ~VENDINGSSRvtCE~ THAT LEAVE VOU WITH A GOOD TASTE'" January 27,1997 . City of Prior Lake Ms: Jenni Tovar, Planner 16200 Eagle Creek Ave.S.E. Prior Lake, MN 55~72 Dear' Jenni, As per our COrlversationon the morning of Janu,ary 27.1997 our matterofcqse #97-D05 will be moved toalater date of February 1 0,1997. Please sem:Jan agenda of that meeting when possible. Thani< you for your co-pperation with, such short notice. "~' tkt1tMchae.... ........ ..... P.o. Box 657 Prior Lake, MN. '55372 ... STA~ OJ' Ja.l..wllESOTA ORICB 1VI"IU1tItOBAllDU1VI 1PABTlVIEmT OF AGBICULTUllE DATE: June 13, 1996 TO: All Food Inspectors, Supervisors and Compliance Officers . PHONE: (612) 296-2627 J11.~ LJ ~LtV, FROM: M. Frederick Mitchell, Acting Director Dairy and Food Inspection Division SUBJECT: HOME BASED BUSINESSES MEMO: 96-17 Policy From recent comments, this issue needs to be addressed in more detail. Information in policy memos 93-42 and 87-57 remain in effect. The following clarifications are in order and may be distributed to customers who are interested in starting a business from the home. 1. No commercial food processing business may be conducted in the domestic areas of a home. This includes production, sales, storage, or t~affic of raw or finished products through areas of the home used for d6mestic purposes. 2. All residential based food businesses must be in compliance with all local zoning regulations. The Minnesota Department of Agriculture will require a letter of such approval from applicable authorities prior to licensing. A copy of this letter shall be retained in the Inspectors files, Department files, and by the business. 3. If the business is to be served by a well, conduct a well survey and obtain water samples for coliforms and nitrates. Obtain supervisors approval of the well based on the well survey and satisfactory sample test results before any construction is allowed to start. The issue of well approval should be addressed first for the customers own benefit. Inform the prospective customer that a packless brass sample petcock must be installed to insure that a valid water sample is drawn. 4. The food processing plant must be completely separate from the domestic quarters. In all cases, a separate outside entrance, direct from the food processing plant to the outside, must be available and used to access the food plant for all shipping, receiving, customer traffic, etc. 5. The home based food business must comply with all applicable state food rules and statutes for equipment and facilities as required by Minnesota Department of Agriculture and/or Minnesota Department of Health. '. Memo 196-17 paqe 2 f 6. Separate restroom facilities must be provided per the requirements ot the applicable state rules and statutes. 7. The decision to operate a 'home based food business is one that the owner will have to make. Basing a business from the home does not exempt the owner from meeting the same commercial codes that the businesses downtown must do. ,This includes fire codes, electrical codes, health codes,zoning codes, etc. 8. Plumbing plans ~ust be submitted to the Minnesota'Department of Health, reviewed and approved before construction may begin. The address for plumbing plan submission is as follows: Minnesota Department of Health 121 East Seventh Place PO Box 64975 st. Paul, MN 55164-0975 Telephone: Fax: 612-215-0836 612-215-0977 Minnesota Relay Numbers Metro Area: 1-800-627-5353 Outstate Minnesota: 1-800-627-3529 " ..... 9. Retail businesses required to submit facility, equipment, room finish schedules, and floor plans to the Minnesota Department of Agriculture 'must submit these plans along with the application form and correct fee to: Minnesota Department of Agriculture Dairy and Food Inspection Division 90 West Plato Boulevard St. Paul, MN 55107 Telephone: Fax: 612-296-2627 612-297-5637 10. A home based business limited to the storage of prepackaged food has been approved in the past if they have a separate room dedicated only to this purpose. The room must not be used for domestic purposes, have a solid self-closing door, be maintained in a sanitary condition, and be of suitable construction for the storage of prepackaged food. , Businesses of this type include vending of prepackaged food, direct sales of food such as Watkins products, etc. MEM:af .. ~ FOOD mSPECTION DIVISION MINNESOTA DEPARTMENT OF AGRICULTURE 90 WEST PLATO BOULEVARD ST. PAUL, MN 55107 (612) 296-2627 ~' FOOD VENDING RULES 1550.5000 DEFINITIONS. Subpart L Scope. For the purpose of parts 1550.5000 to 1550.5130, the terms in this part have the meanings given them. Subp. 2. Bulk iIod. "Bulk food" means a food that when dispensed to the customer is not packaged, wrapped, or otherwise enclosed. Sabp. 3. OnnWfti--uy. "CtllI''ITniRsary'' means a catering establishment, restaurant, or other place in which food, containers, or supplies are kept, handled, prepared, packaged, or stored for use in vending machines. The term does not apply to an area or conveyance at a vending machine location W1ed for the temporary storage of packaged food or beverages. Subp. 4. Corrosion-nsistaDt material&. "Corrosion-resistant materials" means materials that maintain their origiDalsanitary surface characteristics under prolonged influence of the food to be contacted, the normal use of cleaning compounds and bactericidal solutions, and other conditions of the use environment. Subp. 5. Easily ,.l_n_h)e "Easily deanable" means that surfaces are readily accessible and made of a material and 1iDish and fabricated 80 that residues may be effectively removed by normal cleaning methods. Sabp. 6. Employee. "Employee" mellllB an operator or other penon who: A. handles a food, beverage, or ingredient to be dispensed through vending machines; B. comes into contact with food contact surfaces of containers, equipment, utensils, or packaging materials used in cODDection with vending machine operations; or C. services or maintains a vendiftg machine. Sabp.7. FoocL "Food" means a raw, cooked, or processed edible substance, beverage, or ingredient used or intended for use or for sale, in whole or in part, for human consumption. Subp. 8. Food f!lIWIq.et smf8&:e. "Food contact surface" means a surface of a vending machine, appurtenance, or container that comes into direct contact with food, beverage, or ingredient. Subp. 9. BermeticaDy..eealed coftbiner. "Hermetically-sealed container" means a container that is designed and intended to be secure against the entry of microorganisms and to maintain the commercial sterility of its contents after proceBBing. Subp. 10. Bot liquid, mad, or ~.~.. "Hot liquid, food, or beverage" means a liquid, food, or beverage at a temperature at the time of service to the consumer of at least 150 degrees Fahrenheit (66 degrees centigrade). .. .1- Sahp. 11. I..w. "Law" indudes applicable federal, state, B.DCi local statutes, ordinances, rules, and regulations. Sahp. 12. T .i__ "License" means the document issued by the Department of Agriculture or a home rule charter or statutory city or a county that is authorized by the department to impose a license fee and inspect food vending machines. A home rule charter or statutory city or a county that does not inspect food vending machines may not impose a food vending inspection or license fee. Subp.13. 'M"l!niwua lacatian. "Machine location" means the room, enclosure, space, or area where one or more vending machines are installed and operated. Subp. 14. Pacbpd. "Packaged" means contained in a case, carton, can, box, wrapping, barrel, tub, bottle, phial, or other receptacle or covering. Subp. 15. Pencm. "Person" means an individual, partnership, corporation, company, firm, institution, trustee, association, or other public or private entity. Subp. 16. Potable water. "Potable water" means water of a quality and from a source of supply and system operated, located, and constructed in accordance with Department of Health rules relating to public water supplies, water wells, and plumbing installations. Subp. 17. Pobmti-1ly hazardaas fboda. "Potentially hazardous foods" means food that consists, in whole or in part, of milk, milk products, eggs, meat, poultry, fish, shAllf'illh, edible crustacea, or other iDgredients, including synthetic iDgredients, that is in a form capable of supporting rapid and progressive growth of infectious or tazigenic microorganisms. The term does not include foods that have a pH level of 4.6 or below or a water activity (aw) value ofO.8S or less at 77 degrees Fahrenheit (25 degrees centigrade) and foods in hermetically-sealed containers processed to prevent spoilage. Sahp.18. 'R~.dily .c~!--ible.. "Readily accessible" means ezposed or capable ofbeiDg exposed for cleaning and inspection without the Ulle oftoola. Sahp. 19. Beplat.or,y antI.~. "Regulatory authority" means the Department of Agriculture or the authorized home rule charter or statutory city or county responsible for licensiDg and inspection ofven')i", Ift~,.n;ftes. Sabp.20. Safe ~ "Safe materials" means materials that may not reasonably be ezpected to result, directly or indirectly, in their becomiDg a component or otherwise affecting the characteristics of food. The term includes food additives or color additives as defined in section 201(s) or (t) of the federal Food, DIU,. and Cosmetic Act only if they are used in conformity with regulations established under section 409 or 706 of that act. The term includes other materials ollly if, as used, they are not food additives or color additives as defined in section 201(s) or (t) of the federal Food, Drug, and Cosmetic Act and are used in conformity with applicable regulations of the United States Food and Drug Administration. Sabp. 2L R.niQ9!W-qr. "SaDitizlng" means effective bactericidal treatment of clean food contact surfaces of uteDsils and equipment by an approved process that is effective in destroying microorganisms, including pathogens, without adversely affecting the product or the safety of the consumer. .2. .. ~ .. \" Sabp.22. SiW1gJ--._".d:ie1lriicJe. "Single-service article" means a cup, container, lid or closure. plate. knife. fork, spoon. stirrer or paddle, straw, napkin, wrapping material, toothpick. or simila!' article made wholly or in part from paper, paperboard. molded pulp, foil, wood, plastic. synthetic. or other readily destructible materials, and intended by the manufacturers and generally rscognized by the public as to be discarded after only one uBag~. Subp. 23. V"",di"fftl.Mnu... 'VAntHng machine" means a self-service device offered for public use that. upon insertion of a coin, coins. token, credit card, or other payment device, dispenses single or multiple serriDgs of food or beverage, either in bulk or in package, without the necessity of repleniRhing the device between each vending operJltion. 1550.5010 VENDING MACBJJm SANlTATION B.BQUlB.EMENTS. Subpart L StaDduds. Food intended for sale through vending machines must be obtained from sources complying with alUaws relating to food and -food labeling. The products must be in a wholesome condition and must be processed, prepared, handled, and stored to prevent ContAmination and adulteration. All food-contact surfaces of containers and equipment must !>e protected from contamination. Lamps located over ezposed food storage or display must be shielded, coated, or otherwise shatter-resistant. This subpart has been satisfied when the requirements in subparts 2 to 7 are met. Subp. 2. Food 'III......~.-bw~. Food offered for sale through vending machines must be manufactured. processed. aDd prepared in commissaries or establishments that comply with applicable laws relating to food and food labeling. Subp. 3. Food. Food offered for sale through vendiDg machines must be wholesome and properly labeled. Subp. 4.. Pacbpd food. Food in package form must be packaged in s8Ditary containers and must be handled, transported, and vended in a sanitary m.nner. Subp. s. Pot-..t:_1lJ' huudaaa 1Dad. Potentially hazardous food offered for sale through vending machines must be dispeued to the consumer in a single-service original container or wrapper into which it was placed at the commiuary or at the manufacturing or processing plant. Pott-milll11y hazardous food in bulk form must not be dispeued from vending machines. Sahp. 6. PateDtWl.r haardoaa food temperature req~---" Potentially hazardous food within a vending machine must be maintained at a temperature of 40 degrees FahreDheit (five degrees centigrade), or below. or 150 degrees FahreDheit (66 degrees centigrade), or above. Vending machines dispensing potentially hazardous food must be provided with controls that will maintain the required temperatures at all times, ezcept during the nlHng or servicing of the machine and for the muimum recovery period of 30 minutes following completion of these operations. The controls must also place the machine in an inoperative condition until serviced by the operator during a power failure or other condition that may permit the food storage compartment to attain a temperature over 40 degrees Fahrenheit (five degrees cen~de), or below, or 150 degrees FahreDheit (66 degrees centigrade), or above, whichever is applicable. Venc:liDg machines dispensing potentially hazardous foods must be provided with a numerically scaled indicatiDg . -3- thermometer accurate to %3 degrees Fahrenheit (:i:1 degree centigrade), indicating the air temperature of the food storage compartment. The thermometer must be readable without opening the machine. Subp. 7. Milk aDd milk prod1lCtB. Fluid milk and fluid milk products offered for sale through vending machines must comply with the Grade A standards established by law and must be dispensed only in individual original- containers. Fluid milk and fluid milk products and fluid nOQdairy products must not be dispensed in vending machines as additional ingredients in hot liquiclbeverages or other foods. '. . 1550.5020 CLEA:NlNG OF VENDING MACHINE. Parts of vending machines that come into direct contact with food must be thoroughly cleaned and sanitized using methods approved by law. The frequency of cleaning and sanitizUlg treatment depends on the type of product being dispensed. A record of cleaning and sanitizing treatment must be maintained by the operator in each machine and must be current for at least 30 days. This subpart has been satisfied if the requirements in items A to C have been met. A. All equipment at the vendiDg location must be kept clean. Food contact surfaces must be cleaned, riDaed, and sanitized using methods that are effective in removing food residues and destroying microorp"';IIft'I., including pathogens, without adversely affecting the product or the safety of the consumer. B. The cavities and door seals of microwave ovens must be cleaned with nonabrasive cleaners as often as necessary to be maintained free of encrusted grease deposits and other soil. All doors, seals, hinges, and latch fasteners must be maintained tight and adjusted according to manufacturer's procedures. Microwave ovens must comply with applicable safety staDdards oftbe Ullited States Food and Drug Jid'ft'li"'i-tration's Bureau of Radiological Health. C. Food contact surfaces of all equipment and uteDsils must be maintained free from contA'ft'Ii"'-ticm. 1550.5030 EQU'JPMENT lfOll CLEANING VENDING MACBINES. In lieu of a permanent fized installation of sink facilities, the person may provide portable equipment that can be moved from one location to another. The equipment must consist of detergents, swtizers, brushes, pails, and other utility devices necessary for effective cleBDiDg and sanitizing disiDfecti~D. Separate containers must be used for wash;"'g and rinsing operations. . 15SO-m4O SlNGLE-SERVlCE ARTICLES. Single-service articles used for bulk food and beverages must be purchased in swtary cartons or packages that protect the articles from CODtA'ft'I;"'tlItion, stored in a clean, dry place until used, and handled in a sanitary mllDDer. The articles must be stored in the original carton or package until introduced into the container magazine or dispenser of the vending machine. SiDgle-service articles stored within the vending machine must be protected from manual contact, dust, insects, rodents, and other -4. contsnnl'P1ation. Single-service ~cles such as utensils, straws, toothpicks, or ,j",Uar articles must be pr.ewrapped amd maintained out of the food when included as part of the packaged vended food. 1550.5050 CONDIMENTS. Condiments must be in siD.gle-service containers and maintained out of the food when included as part of the packaged vended food. 1550.5060 VENDING MAcm::NE LOCATION. Subpart L StaDdarda. A vending machiJ:ie must be located to """"""'-e the potential for conta""",ation of the food, Jm18t be easily cleanable, and must be kept clean. Food, food containers, and equipment.stored near the machine or in a separate room at the location must be stored at least.six inches (152 ",i11''''eters) above the floor and not e%pOsed to moisture and the stol'age area must be kept clean. This subpart has been satisfied if the requirements in. :items A and B are met. A. Each vending machine must be located in a room, area, or space that will maintain the machine in a clean condition and protect the machine from overhead leakage of drains and pipes. Vending machines must be located so that the space around and under the machine can be readily cleaned and maintained free of insect and rodent harborage. B. The floors under vending machines must be' reasonably smooth, cleanable, .: and capable of withataDdiDg repeated WIIIe}"."g and scrubbing. The immediate area ' surrounding a vending machine must be maintained in a clean condition. 1550.5070 ~:J!&AlO:a MACHINE CON~-.L'J:U.1CTION AND 1lAINT.BNANCB. The ezterior of a venn'fti machine must be readily cleanable to prevent the entrance of iDsects and rodents and must be kept clean. Service connections to the machine must protect against unintentional or accidental interruption of service. This part has been satisfied if the requirements in items A to F are met. A. The vending machine must be of Eurdy construction with the ezterior desigDed, fabricated, and n'PI,a'hed to facilitate its cleanliDess and prevent the entrance of iDsects and rodents. . B. Door and panel access opeDiDp to the pr04uct and container storage spaces of the machine must be tight-fittiDg to prevent the entrance of dust, moisture, iDsects, and rodents. C. All necessary ventilation louvers on openings into vending machines must be effectively screened against insects and rodents. Screening material must not be less than 16 mesh to the inch or equivalent. D. New venciiDg, machines with a condenser unit as an integral part of the machine must be sealed from the product and container storage spaces. E. Unless the vending machine is sealed to the floor to prevent seepage or can be manually moved with ease, one or more of the following provisions must be used to facilitate cleaniDg operations: (1) the machine must be mounted on legs Biz or more inches in height; - 5- .. (2) the machine must be mounted on casters or rollers; or (3) the machine must be mounted on gliders that permit it to be easily '" moved. F. All service connections through an exterior wall of the machine, such as wau.":,, gas, electrical, and refrigeration connections, must be grommeted or sealed to prevent the entrance of insects and rodents. Connections to utilities must discourage unauthorized or unintentional disconnection. 1550.5080 ]It(''.llSKlOR CONSTRUCTION AND IlAINTENANCE. All interior surfaces and component p~ of the vending machine must be designed and constructed to permit easy cleaning and must be kept clean. All food contact surfaces of the machine must be smooth, nontoxic, corrosion-resistant, and nonabsorbent and must be capable of withstanding repeated cleaning and sanitizing by normal procedures. Food contact surfaces must be protected against contsnnln9tion. This pan has been satisfied if the requirements in items A to G are met. A. Nonfood contact surfaces of the interior of VAn tf ''''g machines must be designed and constructed to permit easy cleaning and to facilitate maintenance operations. Inaccessible surfaces or areas must be ~lnl",l~ed. B. Food contact surfaces of vending machines must be smooth, in good repair, and free of breaks, corrosion, open seams, cracks, and chipping. Food contact surfaces must be designed to prevent routine contact between food and V-type threaded surfaces. . All joints and welds in food contact surfaces must be smooth with rounded internal angles and corners to facilitate cleAnlng. C. All food contact surfaces of vending machines including containers, pipes, valves, and fittings, must be constructed of nontozic, corrosion-resistant, and relatively nonabsorbent materials and must be kept clean. AD co~ers, valves, fittiDp, chutes, and faucets in contact with food m~t be readily removable and fabricated to be easily disassembled; and when disassembled, all surfaces must be visible for inspection and cleaning. If a machine is designed 80 that food contact pipes or tubing are not readily removable, in-place cleaning of pipes and pipe fittings is permitted if they are arranged so that cleaning and sanitizing solutions can be c:irculated throughout the fiDei system and the solutions will contact all interior surfaces. The system must be self-dra,n''''g, and the cleaning procedures must result in thorough cleaning of the equipment. D. The openings into all nOD.pressurized containers used for the storage of food and single-service articles m vending machines must be provided with covers to prevent contsunlnAtion of the interior of the contamers. Covers must be designed to provide a flange that overlaps the opening and must be sloped to provide drainage from the cover surface. Port openiDgs through the cover must be flanged upward at least three-eighths inch and must be provided with a cover that overlaps the flange. Condensation-deflectiDg or drip-deflecting aprons must be provided on all piping, thermometers, equipment, rotary shafts, and other functional parts extending into the container, unless joints are watertight. Aprons must be of safe material for those .. .6- . '" opellings that are in continuous use. Gaskets, if used, must be nontoxic, relatively stable, and relatively nonabsorbent, aDd must have a smooth surface. Gasket retAining grooves must be readily cleanable. E. The delivery tul>e, chute, and orifice of bulk food and bulk beverage vending machines must be protected from manual contact, dust, m,."Jcts, rodents, and other conts-m;n9tion. The design must divert condensation and other moisture from the normal filling position of the container receiving the food or beverage. The vending stage of a vending machine must be provided with a tight-fitting, self-closing door or cover that is kept closed, except when the machine is in the process of deliveriDg a food or beverage. F. The product storage compartment within a vending machine dispensing packaged. liquid products must be self-drA;n;ng or must be provided with a drain outlet that permits complete drA;n;ng of the compartment. The drains must be easily cleanable. G. Opening devices that contact food or the food contact surface of the containers must be constructed. of smooth., nontoxic, corrosion-resistant, and relatively nonabsorbent materials. Unless the opening device is a single-service type, it must be readily removable for cleaniDg IU1d must be kept clean. Parts of multi-use opening devices coming into contact with the food or food contact surface of containers must be reasonably protected from manual contact, dust, insects, rodents, and other contAmination. The parts must be readily removable for cleaning and must be kept clean. 1550.5090 WATER SlJI'PLY. Water used in a vending machine must be from a source in accordance with chapter 4720 and must be of a safe and sanitary quality. This part has been satisfied if the requirements in items A to E are met. A. Water used in a vendiDg maf!h;ne must be potable water and from a source in accordance with chapter 4720. Water used as a product iDgredient must be piped into the V-nftiftg machine UDder pressure, and all connections and fittings must be installed in accordance with law. Containers for the storage of water must be designed and maintained as food contact surfaces. Bottled water use is not ezc1uded. B. Water filters or other water conditioning devices used as part of vending machines must be of a type that can be disassembled for periodic cle-fting or replacement of the active element. Replacement elements must be handled in a sanitary m-"''''er. The date of the latest replacement must be on the water device. C. Vending machines dispensing carbonated beverages that are connected to a water supply system must be equipped with a built-in positive airgap or an approved double check type backf10w preventer with intermediate atmospheric vent, or other approved devices that will provide positive protection against the entrance of carbon diozide or carbonated water into the water supply system. D. Check valves used for the protection of the water supply system must have a screen of not les8 than 100 mesh to the inch installed in the water supply line immediately upstream from the check valves in a location that permits servicing or replacement. . -7- E. Venc:liDg machines diapeDSUlg carbonated beverages that are coDDected to a water supply system with the water contact surfaces from the check valves or other protective device downstream, including the device itself, must be made of safe materials to prevent the production of toxic substances that may result from interaction with carbon diozide or carbonated water. , , . 1550.5100 WASTE DISPOSAL. Waste must be maintained in suitable containers and properly disposed of to prevent > a nuisance. This part has been satisfied if the requirements in items A to C are met. A. Trash and waste material must be removed from the machine location as frequently as necessary to prevent nuisance and unsightliness and must be disposed of in a m-,n"er approved by law. B. Self-closing, leakproof, readily cleanable, clearly labeled and designated waste containers must be provided near each machine for disposal of used single-service items. Waate containers must not be located within the machine, ezcept for those machines dispensing only packaged products with crown closures, where the closure receptacle may be located within the machine. Suitable racks or cases must be provided for multi-use containers or bottles. C. Containers must be provided within vending machines dispensing liquid products in bulk for the collection of drip, spillage, overflow, or other liquid wastes. An automatic shutoff device must be provided that will make the vending machine inoperative- before the container overflows. Containers for waste must be readily removable for cleaning, must be easily cleanable, and must be corrosion-resistant. Liquid wastes from drip, spillage, or overflow discharged into a sewerage system must have an air gap between the CODDection and the sewer. The sewerage system must be constructed, maintained, and operated accordiDg to law. 1550.6110 DBLIVEKY 01" IOOD. EQUIPMENT. AND StJPPLIBS TO IlACBINB LOCATION. Food and food contact surfaces of containers, equipment, an~ supplies must be protected from CODta",;ft~tion while in transit from the commissary to the machine location or its storage area. Potentially hazardous foods while in transit from a commissary must be maintained at a temperature of 40 degrees FahreDheit (five degrees centigrade), or below, or 150 degrees Fahrenheit (66 degrees centigrade), or above. This part has been satisfied if the requirement in items A and B are met. A. Food, single-service articles, and food contact surfaces in transit to vending machine locations must be protected from dirt, dust, insects, rodents, and other conta",;ft~tion. B. Potentially hazardous food in transit from the commissary to vending machine locations must be maintained at a temperature of 40 degrees Fahrenheit (five degrees centigrade), or below, or 150 degrees Fahrenheit (66 degrees centigrade), or above. . - 8- . 1550.6120 PEBSQNNEL CLEANLINESS. .0 Sahput L 1:r-.dm,g affamd or mad -+--~ IAlZ'face8I1D11 aerriciDg. Employees must thoroughly wash their ).,a"'ds aDd exposed portions of their arms before engaging in vending machine servicing operations and after smoking, eating, or using the toilet. Employees must wear clean outer garments, must not use tobacco in any form, ar.d must keep their fingernails clean and trimmed. "during servicing operations. Suhp.2. Employee ._1t:h No empl~yee, while infected with a disease in a communicable form that can be transmitted by foods or who is a carrier of organisms that cause such a disease or while afi'ected with a boil, an infected wound, or an acute respiratory infection, may work with fo~ in any capacity in which there is a likelihood of that person cont-JIYn1"'fJting food or food contact surfaces with pathogenic organisms or trAn.mitting disease to other persons. 1550.5130 ~l'.ulG VENDING KACBINES. Vending machines in use before the effective date of parts 1550.5000 to 1550.5130 that do not fully meet the design and fabrication requirements of parts 1550.5000 to 1550.5130 are acceptable if they are in good repair, capable of being maintained in a sanitary condition, and in compliance with part 1550.5000, subpart 19. Adopted OV04I91 ... -9-