Loading...
HomeMy WebLinkAbout10A - Mark Michael Home Occupation Permit STAFF AGENDA REPORT AGENDA #: PREPARED BY: SUBJECT: DATE: lOA JANE KANSIER, PLANNING COORDINATOR UPDATE ON STATUS OF MARK MICHAEL HOME OCCUPATION APRIL 7, 1997 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 I 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/ . . );tt.'\o-J'-.- LA-. ~L/'^-A-\..~ () 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 ..Q05\3-28Iet. doc 16200 Eagle Creek Ave. S.E.. Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 I Fax (612) 447-4245 AN EQL;AL OPPORTL:NITY E~4PLOYER 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, ~ (). kC\h~ UJane A. Kansier, AICP Planning Coordinator c: Frank Boyles, City Manager Suesan Lea Pace, City Attorney Don Rye, Planning Director Jim Bates 1:\97files\97appeaI\97 -O05\3-11Iet.doc 16200 Eagle Creek Ave. S.E.. Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQL'AL OPPORTCNITt E~PLOYER .. RESOLUTION 97-18 OVERTIJRNING THE RECOMl\-IENDATION OF THE PLA..'lNJNG COMJ.\'IISSION IN THE MATTER OF AJ."f APPEAL OF A DEOSION OF THE ZONING OFFICER RELATING TO A HOME OCCUPATION, CASE NO. 97-005, DE~'YIN'G THE APPROVAL OF A HOlVIE OCCUPATION FOR MARK lVnCHAEL 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 J\iIr. Michael's home occupation consists of warehousing food and products for vending; and The City investigated a complaint relating to the home occupation J\iIr. Michael was conducting and the requirement to have a permit; and wIr. 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 wIr. 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 Horne 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 ~~lW~t~~~P~.~~~'l~. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (61~a*47-4245 AN EQL;AL OPPORThNITY EMPLOYE."l. NOW THEREFORE, BE IT RESOL YED BY THE CITY COl.JNCIL 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 NIT. 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) NIT. 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\resoiuri\pianres\rs9i l8cc.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. ~lr. 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. I r:\counciI\reso l'~n'\p 13Ilres\rs971 8ce.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\resoi~ti\planres\rs9718cc.doc Page 4 l[. Co~c.,il JUlt'nwf,es 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 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. 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. 3397.00c 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 APRlL. Upon a vote, ayes by Kedrowski, Mader, and Schenck the motion carried. 339700c 4