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HomeMy WebLinkAbout7C - G & R Enterprises Appeal AGENDA #: PREPARED BY: SUBJECT: DATE: INTRODUCTION: DISCUSSION: ISSUES: STAFF AGENDA REPORT 7~NALD RYE, PLANNING DIRECTOR ~ CONSIDER APPEAL OF G AND R ENTERPRISES FROM A RULING OF THE ZONING OFFICER RELATING TO DOCKS SEPTEMBER 16,1996 Staff received a complaint that dockage was being rented to persons who did not live in the subdivision in which the docks were located. A letter was sent to the owners of record, informing them such use was a violation of sections 5-3-3 and 5-4-1(H)(I) of the City Code. The owners appealed this decision and the case was heard by the Planning Commission on August 12, 1996. The appellants position was that the use did not fit the definition of a marina and the use was not prohibited by ordinance. Following some discussion, the Planning Commission voted unanimously to recommend that the City Council uphold the decision of the zoning officer The staff report to the Planning Commission conceded that the definition of marina contained in the code was difficult to apply to the rental of dock space but also concluded that the provisions of section 5-4-1 (I) was controlling and that dock rental did not comply with this section of the code. The City Attorney has reviewed this issue and agrees that this section of the ordinance, as the more specific, is applicable in this case and that the staff interpretation is correct. The issue is whether the city code allows a property owner to rent or lease dock spaces in the R -1 zoning district if the lot on which the docks are located is not a common beach lot meeting the several criteria in the code. Staff has concluded that such use is not allowed under current provisions of the code. By appealing the decision of the 16200 @Jg1~~f~Jl>^~S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER Zoning Officer and the Planning Commission's recommendation to uphold that decision, the question raised by the appeal is whether Council agrees with the language of the code as applied to these particular facts. If the council believes that this language is too restrictive or that other rules should apply, the issue should be referred to the Planning Commission for study and recommendation. ALTERNATIVES: 1. Uphold the decision of the zoning officer 2. Uphold the position of the appellant 3. Defer action on the request and r~fer the issue to the Planning Commission for review and recommendation. 4. Other specific action as directed by the Council RECOMMENDATION: Alternative 1 ACTION REQUIRED: Motion affirming the decision of the zoning officer Attachments: 1. Letter to property owner regarding violation 2. Letter of appeal 3. Planning Commission staff report 4. Planning Commission minutes Rev1ed ~y: GENSAPPL.OOC/DR 2 June 17, 1996 iVfr. Larry Gensmer P.O. Box 155 Prior Lake, l\tfN. 55372 Dear ~fr. Gensmer: In the course of investigating a complaint that property owned by you (Lot 7, wfaple Park Shore Acres) was being used for dock rental, it appeared that three boats were being docked on your property. If, in fact, these docks are being rented, this would constitute a violation of Section 5-3-3 of the City Code which prohibits marinas in the R-I zoning district. Even if the docks are not being rented, use of the docks by persons not residing in the subdivision in which the docks are located would be a violation of Section 5-4- 1 (H)(I), which deals with common beaches. Continued use of these docks by persons other than yourself will constitute an ordinance violation and will result in subsequent enforcement action. Yau have the right to appeal this decision to the Board of Adjustment by filing a letter of appeal with this office stating the specific basis for your appeal. Such an appeal must be made within 30 days of the date of this letter. Sincerely,/--') ~"v~~( _~( .;-:-- . , Donald Rye '- Planning Director cc:Pat Lynch.. wfl'.I DNR 1 '~?OO .G~ENsv,1Qb-cpC~.'DR .::: =- D-;, r::>'. ...0,-, t.':"Sle \.-. -_."\ , .\"~ __. ., .cr L_l'.2 \tlir.r.esGca 3.3.3'7'2-: 7: ~ ?:-.,612l ~4"7-~23(; :- 3:': 6 L2~ ~;'"7 .42~~ ~,i" =:CL'.~,L. :p-::~::;:~'.~,;-:- ~:.'::~: _.. G AND R ENTERPRISES, INC. 20664 Lake Ridge Drive Prior Lake, MN 55372 July 17, 1996 Donald R. Rye Planning Director City of Prior Lake 16200 Eagle Creek Avenue Prior Lake, MN 55372 Re: Lot 7, Maple Park Shore Acres Dear Mr. Rye: This letter is intended as a notice of appeal to the Board of Adjustment of your decision dated June 17, 1996, sent to Larry Gensmer. Mesenbrink Construction & Engineering, Inc. and G and R Enterprises, Inc., own the portion of Lot 7, Maple Park Shore Acres, lying easterly of the following described line: Beginning at a point on the southerly line of Lot 7, distant 6.23 feet northeasterly of the southwesterly corner of Lot 7, thence northwesterly to a point on the northerly line of Lot 7, distant 7.60 feet easterly of the northwesterly corner of Lot 7, and there terminating. The O\l!ners, through Eagle Creek Villas, LLC, have leased an undivided 25 % interest in the parcel, including the incidental riparian rights, to four lessees. While the leases do include ordinary riparian rights, this does not transform the property into a marina, which the city code defines as "A commercial establishment ... providing moorings for boats and offering other supplies and services accessory to the principal use." It is neither a commercial establishment nor are any supplies or services provided. The land is rented for purposes fundamental to an R-l shoreland area; .the dock accommodates no more than four boats, in compliance with DNR regulations, and we contend this is a proper and lawful use of the property. Yours truly, G AND R ENTERPRISES, INC. ~v(J~,~ Lafry R. €Jensmer, President --/ PLANNING REPORT SITE: 6A CONSIDER APPEAL OF G AND R ENTERPRISES FROM A RULING OF THE ZONING OFFICER RELATING TO DOCKS LOT 7, MAPLE PARK SHORE ACRES (EAST OF 15287 FAIRBANKS TRAIL) DONALD RYE, PLANNING DIRECTOR YES X NO-N/A -- AGENDA ITEM: SUBJECT: PRESENTER: PUBLIC HEARING: DATE: INTRODUCTION: 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 attached letter dated June 17, 1996 was sent in response to a complaint that dockage was being rented to persons who did not live in the subdivision in which the dockage was located. Staff investigated on May 29 and noted two docks were located on the subject property and three boats were moored at the two docks. This was verified by staff on June 19 following mailing of the attached notice of violation. Upon receipt of the appeal, staff again visited the site and noted two docks with four boats moored at the docks. The letter of appeal was received on July 17, 1996 and a copy is attached. DISCUSSION: Section 5-5-3 of the ordinance deals with permitted and conditional uses. This section was cited in the belief that rental of dock space is one of the primary activities associated with marinas and the appellant states that they are leasing dock space. Marinas are not a permitted use in the R-l District. The letter of appeal states that the owners of the lot are leasing an undivided 25% interest in the lot to four people who are keeping their boats at two docks on the property. The letter states that the dock rental does not constitute a marina as defined by City code. The code definition of a marina is a commercial establishment adjacent to a navigable lake providing moorings for boats and offering other supplies and services accessory'to the principal use. The appeal states that the use is not a commercial establishment nor does it provide any other supplies or services, and it complies with DNR rules. Websters Dictionary defines commercial as occupied with or engaged in commerce or work intended for commerce. The dictionary goes on to define commerce as the exchange or buying and selling of commodities on a large scale involving transportation from place to place. 16200 ~Agl~6~RJ~k"%e. S.E.. Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQLAL OPPORTL~[TY E:v1PLOYER "_"'"'_''''__~___'~_''_'_''''_'__'~.'._W''_'_'''''-'~~'''''''"__,."",,,,~,_,___,,,--,,,,,,,;p~~~,,,,,,,,,,,,,,,,~,,,,~,,,,,,,,,,,_,,,,""..,,,"_.__,,,,,,,,, '"_"",_~"_".",__"',",,,,-,",-,..,",,,,., ,.'"-,'",' ,-~,~"""",""",-",..",",-""._"",."-_"""",__'"_~"""",,.,~_,,,,,,__",,,,"-_..~,--,",""~""",,,,,~,,--",'~---"'-'-"""'- Given these definitions, it is difficult to conclude that the dock rental is a commercial establishment, although it could be argued that few, if any Prior Lake businesses meet that definition as commercial uses. What this does do is point out the need to write definitions which clearly state the intent of the City and remove ambiguity from the enforcement of the ordinance. The letter of appeal does not address the second ordinance section under which the dock rental was found to be non-compliant. This is section 5-4-1 (I). This section reads as follows: Any lot or parcel of land which is contiguous to or abutting any public lakes in Prior Lake may be developed into a common beach area controlled by a homeowners association. This provision applies provided that several conditions are met. These conditions are: 1. The lot must be controlled by an association whose members own property in the plat from which the common lot was created. In this case, control does not lie with an association but with G and R Enterprises and Messenbrink Construction and Engineering, Inc. 2. A conditional permit must be issued for the use. In this case, no conditional use has been applied for or issued. 3. The association rules and bylaws must be on file at City Hall when the final plat is approved. Because no association exists, no bylaws have been filed. It seems clear that this provision was intended to insure that such common beach lots were created at the time of plat approval. 4. Provided all other conditions are met, the site itself would require 10 feet of lakeshore for every buildable lot in the plat. Maple Park Shore Acres has 51 lots and, if the common lot were created for this subdivision as required, it would require 510 feet of lakeshore. This parcel would not meet that requirement. 5. Given the situation stated in 4 above, the site would need a minimum of 200 feet of depth from the ordinary high water level. The site would also fail to comply with this requirement. Conclusion- Staff concludes that the dock rental as currently being conducted does not comply with Section 5-4-1 (I) of the City Code. ALTERNATIVES: 1. The Planning Commission can recommend to the City Council that it uphold the staff interpretation of the ordinance, 2. The Planning Commission can recommend to the City Council that it accept the appeal and find that the dock rental is in compliance with City code provisions. 3. The Planning Commission can defer action on this request for specific reasons. RECOMMENDATION: Alternative 1 ACTION REQUIRED: Motion and second expressing the opinion of the Planning Commission 812966A.DOC/DR 2 June 17, 1996 Mr. Larry Gensmer P.O. Box 155 PriorLake,~.55372 Dear Mr. Gensmer: In the course of investigating a complaint that property owned by you (Lot 7, Maple Park Shore Acres) was being used for dock rental, it appeared that three boats were being docked on your property. If, in fact, these docks are being rented, this would constitute a violation of Section 5-3-3 of the City Code which prohibits marinas in the R-I zoning district. Even if the docks are not being rented, use of the docks by persons not residing in the subdivision in which the docks are located would be a violation of Section 5-4- 1 (H)(I), which deals with common beaches. Continued use of these docks by persons other than yourself will constitute an ordinance violation and will result in subsequent enforcement action. You have the right to appeal this decision to the Board of Adjustment by filing a letter of appeal with this office stating the specific basis for your appeal. Such an appeal must be made within 30 days of the date of this letter. Sincerely, Donald Rye Planning Director cc:Pat Lynch, ~ DNR 16200 @lgt~~&dPPA(~ S.E.. Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQCAL OPPORTV\ITY' E:vJPLOYER V ote taken signified ayes by V onhof, Wuellner, Stamson, Kuykendall and Criego. MOTION CARRIED. 6. New Business: A. Gensmer Appeal Regarding Lot 7, Maple Park Shore Acres Jane Kansier presented the information from the Staff Report. Staff recommended the Planning Commission recommend to City Council that it uphold the staff interpretation of the ordinance. Staff received a letter dated June 17, 1996 sent in response to a complaint dockage was being rented to persons who did not live in the subdivision in which the dockage was located. Staff investigated on May 29, and noted two docks were located on the subject property and three boats were moored at the two docks. This was verified by staff on June 19, following mailing of the notice of violation. Upon receipt of the appeal, staff again visited the site and noted two docks with four boats moored at the docks. Section 5-5-3 of the ordinance deals with permitted and conditional uses. This section was cited in the belief that rental of dock space is one of the primary activities associated with marinas and the respondent states they are leasing dock space. Marinas are not a permitted use in the R-l District. Bryce Huemoeller, the attorney representing respondent was present. His position was the plat of Maple Park Shores Acres was platted years ago and predates the ordinance by 40 years. This is not a common beach area. It is a lot being rented to 4 people to have short term seasonal docks in the water that comply with DNR regulations. The provision of the ordinances uses the word "may" be developed..." which leaves it optional. The owner's position is he has a lease that complies. It is not a violation of the ordinance. The lot is used for beach activities. Comments from Commissioners: Kuykendall: . Agrees with Staff s interpretation for reasons stated in their staff report. . Mentioned DNR water regulations. V onhof: . Agree it is not a commerical marina but it runs against the intent of the ordinance. . There is no specific language. illOO&~u MN081296.DOC PAGE12 Stamson: . Principal use is residential and this area is zoned residential but it is not a buildable lot. It does not apply to Section 5-4-1. Primary use is leasing out dock space. · Applicant can deed back to the homeowners and they can use it. Wuellner: . Is for alternative #2 of the Staff Report and accept the appeal for dock rental. . Not convinced it is not a prohibited use. It is a reasonable use if you can not live on it. Criego: . It is not intended to lease out slips. . This is a Rl zone. . It is not a permitted use. . Agree with Staff recommendation. Open discussion comments: . The owner of the property can have a slip. . This is a commerical issue. Someone is making money. . Go through the conditional use process. . It is not addressed in our zoning. . It is a plotted lot and has to have some use. . It is not in compliance. Commissioner Stamson read Section 9, page 3, subparagraph 9.2 B 4 of the Shore land Ordinance which states: 4. "Prohibited Uses. Any uses which are not permitted or conditional uses as regulated by the applicable zoning district underlying this Shore land District as indicated on the official Zoning Map of the City." MOTION BY KUYKENDALL, SECOND BY STAMSON, TO RECOMMEND CITY COUNCIL UPHOLD THE STAFF INTERPRETATION AND CITE SECTION 9.2 B 4. V ote taken signified ayes by Kuykendall, Stamson and Criego, nays by Wuellner and V onhof. MOTION CARRIED. 7. Announcements and Correspondence: Lake tour scheduled for Tuesday, August 20, at 4:00 p.m. fO)fDJmR17 ~~~) L~ L~J If U MN08 I 296 ,DOC PAGEIl