HomeMy WebLinkAbout8E - Home Occupation Zoning Appeal Denial
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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 of the 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 EWgH2~~. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 4417-4245
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-ol-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.
R 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/IT
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 Nursery 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/IT
3
ISSUES: 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.
ALTERNATIVES: I. 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.
RECOMMENDATION: Alternative #1, to uphold the decision of the zoning officer.
--
ACTION REQUIRED: Adoption of Resolution #97-XX affirming the decision
of the zoning officer
RevieAd By!
il~J
97-005CC.OOC/IT
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:
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
SECOND BY:
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 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 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 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.
97-00SRE.DOC
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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 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.
97-o0SRE.DOC
Passed and adopted this 3rd day of March, 1997.
Andren
Greenfield
Kedrowski
Mader
Schenck
{Seal}
97-00SRE.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 TIIE JANUARY
27, 1997, MINUTES AS SUBMITIED.
V ote taken signified ayes by Kuykendall, Criego, Wuellner, Stamso:q and V onhof.
MINUTES APPROVED.
4. Public Hearings: None
5. Old Business: None
6. New Business:
~ A. CASE #97-005 MARK MICHAEL - APPEAL OF HOlv1E 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
MN021097.DOC
PAGEl
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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.
MNOll097.DOC
PAGE2
. 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 of H & 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:
Vonhof:
. 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
PAGEl
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/.
. 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 Starnson 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.
MN01I097.DOC
PAGE4
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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 Shore land 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
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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 RECOM1-1END TO CITY
COUNCIL THE PROPERTY AT 4190 EAU CLAIRE TRAIL WITH THE HOME
BUSINESS OPERATING BE CONSIDERED A LEGAL NON-CONFOR.M:ING 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
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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, teachin.g or the prof-essional offi~e
of a physician, eagineer, architect or accountant, may ~e permItted a~ an a~cessory use. 10
residential zoning districts if it complies with the reqmrements of thIS sectIOn. The PrIor
~~ P~~ng Commission may issue a Home Oeeupation Permit follo'.ving a hearing for
which abl:ltting property O',YflerS have been Rotified.
A. All material or equipment shall be stored within an enclosed structure.
B. OperatiQn o( the hOIIle occupatioQ is not llIlP""nt ftom the ;t;eet rillht-of-way '.
C. The activity does not involve warehousin~. distribution ~r retail ~ales Qf
merchandise produced off the site.
D. The home occupation may shalt be carried on persons by a member of the
family residing in the dwelling unit .and not more than one employee who ~
not reside in the dwelling unit is not part oft11e family.
E. The home occupation shall be carried on wholly within the principal ef
accessory structure. Space within the dwellin~ devoted to the home
occ.upation. does not exceed. 1 0% of the floor are~ or. 300 s.qu~re .f~~t.
whIchever IS greater. No portIOn of the home occupatIOn IS ~errmlte.4 WIthin
any attached or detached accessory building.
F. Exterior displays, ef signs (other than those permitted under the Sign
Ordinance, 94-6), and outside Section e.4 eJeterior storage of materials tm4
exterior ifldicatian of the home oecupation or variatiaR from the residential
character of the principal structure 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
~ produced.
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, exces~ lve 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. analvsis andevallJ~t;on wf.:"'n
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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 OPPORTUNIlY E:"IPLOYER
HUEMOELLER & BATES
ATTORNEYS AT LAW
16670 FRANKUN TRAIL
POST OFFICE BOX 67
PRIOR LAKE. MINNESOTA 55372
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JAMES D. BATES
BRYCE D. HUEMOELLER
January 13, 1997
Telephone (612) 447.2131
Telecopier (612) <4047-5628
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
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.
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 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 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 man day 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-irzu~ C!oA-.iWQ
Patricia Cook, M.D.
4085 154th St.
Prior Lake, MN 55372
PC/pc
cc: Allen Greenfield
Tom Kedrowski
Wesley Mader
Pete Schenck
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..LeslieM'!irrinan
Certified Residen tial Specialist
Edina Realty
Southwest Suburban Office
Suite 100
14198 Commerce Avenue N.E.
Prior Lake, Minnesota 55372
Office I (612) 4474700
Residence I (612) 447-4884
FAX 1(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
Claire 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.
~
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~> Leslie "MiIrrlnan
- Certified Residential Specialist
Edina Realty
Southwest Suburban Office
Suite 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
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 612~~7~2~5
6.7
6.S
6.9
CITY OF PRIOR LAKE
~oo:?
TEMPORARY S'TFiUCTURES: Terr.\=orary structures and t:ailers used in cc~junction
with construction wJrk shall ce permitted c:liy during the period thal the constr'Jct:or. work
is in progress. Permits for lel1icora:y structurl9s snail De issued by the City Zoning Officer
tor a $ix-mcnth (6) period, prJt are subject to the Stare Unif':mn 8uilding Cede.
HOME OCCUPATiONS: Any home occupation such as ,/,\ a~ studio. dress ,.,akir:'~.
teaching or th~ p:ofessiv1'!a! office .:)t a ;:;n'1sici3n, dentist. IS'h"ler. e~gineer architect or
accountant. may t:e perl"'1itted as '3.:1 accesso:y '.;se jf it complies with the requirements of
this section. The Prior Lai'\e ~lanni'''9 Ccr.,missicn maY' issue a Home Occupation Permit
following a hearmg ror which abutting !:roDerty owners have been notitiea.
A.
The "lome \)c:upation sr.all be carried ;In by a nember of the tar"'ily residing in the
dwelling unit with not mere thar. one em;Jicye~ who IS "lot ::art ot the farr.iiy.
B.
The homa cccupation sr'.all be carl1ed en wholiy within the pnncipal cr accesscr'j
structures.
C.
Exte.-i::Jr display!;: or signs other than those ;:.errr,ined :.JMer Section 64 exterior storage of
materials ar:d exterior incicz-rcn t:lf :/"e horrs cccupat'on or variation from the residential
character ct the principa: struc:ura shall nOT. be permi:!ed.
D.
ObjectionabJ..; tioise, vit;raHon, smoke. dust, electrical c:srurbance, oaors. heat or giara
shall net b$ prcGu:::ac.
E.
Articles not produced or; the prerr:s;;s shail not be sold on tl'1e preMises. without a
specified permit.
F. n',s home occlJpaticn shall r'!ot creat~ excessiv~ aL.tor~~:ii~ t!'affic withir. the
neighborhooc.
MANUFACTURED HOMES: V,am.:1actured l"lcmeo;; may be located in a R.4 Mixea Cooe
Residential1Jistrict urcer the tOllo....'lng :cnditions:
A.
Piatted . Deve.opment 'n whic:-: t,e ai\:;;-'3 pa:::el is to :,e dIVided intc individuai iots to tle
sold sepa~ately shall cr.mfoml to all reqlllremel'lts of tha City for :subdivisions ~s s~t forth
in Title ~ of tM P~or Lake City Coda.
s
Ur.pla~~d - Manufactured hom~ parks '["I ':lhich sites w;il be ;-nada avaiiabie for ;'ent s;,a:1
ccnfcrm to the P.U.D. Section o~ :he ZO:1in; C:de Seetir;n 6.11.
c.
Installatio~ . A::)prov8: cf fI,~.,!.!factured Mous;ng De'ielopments shall be based UPO"
installa:i'Jn re':l'Jirerr.HI~s wh:cl" reqUire a" .3.1~h,-,rmg and 5WP;:Drt sys~~m as ::Jefined anc
..pproved by the ~Jrn,.,es~ta [;epar:1ii6r.t of Acmi;'1istra:ior.. Sl,;ilding Code Divis:on rules
for manufac1:.Ji"eC I"'Cusll~g S'.ippC~ and iie dowr. ~~tems au~nc"zed by Minnesota
Statutes Sec:ion 327.31 to :27.::-4, and finlsr.ec in a ::cICi' cOr1pa:ibie with :hat of the
dwell Hi;. Permits SI'a.1I be re~uirl;d ~or the in~ta:latJOn ,jr alteration of a.'1y dwelli19 or any
acclfssory b..::idinq cr strUC!'J~e as set forth in Title 4 of the Pnor Lake (;:t'l Code.
Sec:icr. 6, pege 5
--
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February 3, 1997
Mr. Don Rye, Planning Director
City of Prior lake
4629 Dakota Street S.E.
Prior Lake, Minnesota 55372
Dear Don:
Don, my namr 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 1he neighborhood.
This new home-owner from 1he 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 tightly
regulated by govenmen1a1 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.
"JVe fully support the Michaels and :see no reason to piace 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. Unfor1unately some are not happy unless they can find fault
with others.
Sincerely
~~
~
Russ and Diane 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
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)
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2-6-1997
America Online:MMVENDING
Page 1
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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.
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Sincerer' /f:/ 7 '-'
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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. They have
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 Eau Claire Trail NE
PriorLake,~ 55372
~~~
c(~ (! /lJrud(
February 1, 1997
To Whom it May Conce~
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 Eau Claire Trail NE
PriorLake,~ 55372
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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.
S[J' ~
Wayne cra'
f;.cott and dnne M~eeJt
4143 EAU CLAIRE TRAIL NE . PRIOR LAKE, MN 553n
10 whom. d:. rna.zJ COnceM.,
dH: ha.A ll.eCen.t:P.M come to OUlt atterL1lon. that Ovt. ~hhoJU. Ma1tk. and ~ue Mrcha.eR. have been. cuJwl
to move theut home. bed MirleM be.ca.u.Ae o~ the i.nb.odudlon. o~ a new- cL~ ondna.n.c.e ctEairtAt i.t.
c.Ot U TYl!:J l.l11d.e1tA~ that the cL~ ~ that theut MirleM AOmehow- 1n~ UJi.th. the ~dazJ
ItDlltlne o~ the ~hhonhood. dpp~ thu U due to noUe ~JtOm. d..eP.i.~ bt.u.ckA to theut homE.
We have fu;ed aCMM the Abt2et ~/I.Om. the Mr.cha.eiA ~/t ~M Uvt.ee MeaJl}. now- and have n.eueJI.
been. o~ 1n a.nzJ wazJ bg the ope1tatlon. o~ theut Mirl.eM. c.Pn. ~ad: MOll would not. even lmow- ~
Ita.n. a hwi.n.eu. bg eoo~ at theut homE.
c.P am. home. ~ the ~ and the noUe and * 1n OUlt ~hhonhaod U min.imaP. aAi.d.e. ~/I.Om.
the s~e bt.u.ckA, the Geeru..oood an.d CuP.R.t&an bt.u.ckA an.d an Oc.ca.Ai.on.a.e d..eP.~ ~JtOm. upA a.nzJ
d..eP.i.lJeJIieA to the Mr.cha.eiA So Wth.ta1~ LlJ1J1.Otlced.
We ei1Je. 1n a ~II.i.end.eM ~hhonhaod w-Mlte ~M ~bodzJ setA aeoYI[J UJi.th. and AuppO/ttA ea.dt
otha Ma.nzJ. peopee have home bed hwi.n.eu.e! and we Ahould ale jLUt ~ to wpect each of:Jwu
pnL~ an.d theut ~h.t to eaJIIt a ei.uin&.
We Bunk we Apeak ~/t ~ ~on.e 1n thu ~hhonhaod when we AazJ that the Mrdute.e ~~
aJte ~ nice peopee who Ahould n.etarn. the ~h.t to con.11n.ue the ope1tatlon. o~ theut ~ compa.nzJ
1n theut homE.
~lr1LeJrEP.M'
~cotf:. an.d Cl.nne MteeeJt
----~
DALE: t'ebruary 7. 1997
TO: To Whom it May Concern
tKOM: Kick & 1(...eHy LOV1 k
Kt.: M & M Vendmg
--4!~) bau -Cla1re . if. Nt:.
pnor Lake, fy'll"l 55j71
~Ve..ot'esH1e.aH ljl} -tauC.tan:e lIall Nt. m t'r.1Of Lake. tv.larkand ~ Nl1c.aaei {)\l-n and
operate M & M Vendmg out oftheu home just dOV\-TI the street tram us. it is our
tffi.Qerstandmg-w.aen the MKhaels \JwU 1herrJ1OmeJi was OK-.iOr.theml0~r:ltf'1helf
busmess trom their home. They have a large SIze garage tor theIr company vehicle and a
...""",,,, ,...,t+,...."""e-'r;'" ?.."'". ~<:>~~ce . i:hA i'lllI-""'" ~"'l'e .ch<>nnAfi h..+ .t~1/ h..."",--:>ln,",'"
t~_~~~~ ~.::t~ _' ~~~ ~~'- -~ !:lCUP,S.....J..., ~ ~...~-j !:~~~~
toUowed the rules and they should be allowed to contmue to operate their busmess as
usual.
We have never telt that theu \Jusmess was a mnsance or a Gl-5ruptlOTI to the
nelghoor.oooo.~th@>~ ~.~ ~4) '::::'.~~~?-ir t".:SH1~~~'W:;~ i:; Kep{m-tile:garage
and deilvenes are kept to a mimmum. in no way does thIS home operated busmess
-detract---trom ~he Qe;;\II\y~~~ me ~ m~ ~rRGoG. M.&.M Venrlm~
should be aiio\"red to commue V\-1th busmess as was ongmaily mtended and promised.
KEVIN & SUE KIMBALL
4136 EAU CLAIRE TRAIL
PRlOR LAKE. _ MN. 553.72
TO: ZONING DEPARTMENT
OF PRIOR LAKE
WE ARE WRITING TO YOU, IN REGARDSTO 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.
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 DEUVERIES. 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 1
KEVIN & SUE KIMBALL
~
February 3, 1997
Mr. Don Rye, Planning Director
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 conducted by Mark and Sue
Michaels, located at 4190 Eau Claire Trail Northeast.
My wife Diane and I have no problems wi'th 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 thlJ 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 tightly
regulated by govenmen1a1 bodies. If a large number of vehicles or 1raffic
become common to a home-based business it could be a problem 1hat
needs attention, but in this situation it is not a problem.
We f1...!!!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 wi1h our neighbors and live together
in peace. Unfortunately some are not happy unless they can find fault
with others.
Sincerely
Russ and Diane Schmidt
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, .
lW1JejAk!!N~
~
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Mark & Ann Monnens
4070 Eau Claire Circle NE
Prior Lake,:MN 55372
612-447-6490
February 9, 1997
TO WHOM IT l\1A Y 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//?/t'~~ ///7).,y!/'-2- Date 2 ~~ i~' 7' 7
Ann Monnens . (1;;lj7j V!?tf]/,/J/7}O
I
Date (;x . 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
~j
v
(? 'JI-C71r
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 d Bud Waund
Listing agents of Windsong on the Lake
Edina Realty
JW/jp
02/19/97 WED 10:24 F.~ 612 452 5550
.
C K S & F
141002
"
Thom:.1!! J. Campbell
Roger N. )::nutsCln
Thoma.1 M. s.:.~(t
Gary G. FUl;N
Jame~ R. Walston
Elliott B. Kncts<;h
SUellln Lea Pace
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.~ (Q) If::;, ~Y?
Attorneys at Law ~ 1/
(612) 452-5000 Anurr:a McDowt:ll Pur:hle:r
F- (612) 452-5550 MlItthcw 1<. Br~lkl:.
i:l."< JClhn F. Kc:lIy
M.u~ucr;tc: M. M.:Carru"
Gcm!:!: T. S(t!phcmlln
".~I*lli~'-"t"l~J in \Vi"~Hnlliln
October 1, 1996
:MEMORANDUM
TO: Mayor Andren, City Council
and City Manager
FROM:
Suesan Lea Pace
~ CONFIDENTIAL.
. ATTORNEY-CLIENT PRIVILEGED...
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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 Nurserv the Supreme
Court found:
The law in MiDnesota. is clear that atimin;~tration of zoning
ordinances is a governmental not a proprietary function, and the
municipality cannot be estopped from correctly enforcing the
ordinam:e even if the property owner relied to his detriment on
prior City action. Id. at 604.
The role stated above is not limited only to sittlations involving the City's zoning
ordinance, but applies also to other sectioDS of the City Code.
I thought you might rmft the case interesting reading.
,
.
Suite 317 · Eagandale Office Center · 1.380 Corporate Center Curve · Eagan, MN 55121
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604 Minn-
295 NORTH WESTERN REI'OBTER. 2cl SERIES
tlie'issue have reached contrarY conclusions.
Compare Thoreson v. Milwaukee &: SubuJ"oo
ba12 Transport Co., 56 Wis.2d 231, 201
N.W.2d 745 (19'72) with P&ige v. Bing Collllt.
CA; 61 Mich.App. 480, 2S3 N.W.2d 46 (1975).
I find the court's reasoning in Paige com-
pelling;
...A parent's exercise ot aDthority over his
or her child involves more than discipline.
'.It ine1Ddes the providing of instruction
. and education so that a child may be
. aware of danpl'l to his or her well being.
We fmd it impossible to separate such'
general phenomena as authority a.nd su-
. pervision. In order to adequately super-
vise a child, .e'ler'Y parent knows that
. some amount of discipline is inextricably
. involved. The right to exercise authority
. over a child certainly includes the respon-
sibility to supervise that child's beha.vior.
.
.
.
.
.
Each parent has unique and inimitable
methods .and attitudes on how children
~ should 'be 5upervis~. Likewise, ea.ch
child requires individualized guidance de-
pending on intuitive concerns which only
. a parent ca.n undenltand. Also, different
cultural, educational a.nd financial condi-
. tions affect the manner in which differ-
. ent parents supervise their children. Al-
. lowing a cause of action for negligent
:. supervision would enable other.!, ignorant
of a case's pec:uliar familial distint:tions
and bereft of any st.an~3.rds, to second-
'. guess a parent's ma.nagement of family
affair.! considerably beyond these statuto-
. ry pro~tions.
'61 Mich.App. a.t 486, 233 N.W.2d at 48-9.
See Bell v. Schwartz, 422 F.Sllpp. 257
. (D.Minn.19'76). I would hold that where ~he
. alleged negligent conduct is a parent's fail.
ure to supervise his child the parent is im-
mune under the "parental authorit.y" excep-
tion if, as here, the omission is nat outra-
geous.
. ':SHERAN, Chief Justiee (diS5enting).
I agree with the dissent of Justice Rc>-
gosbeske.
OTIS, Justice (dissenting).
I agree with the dissent of JU:5tice Bo-
gos'beske.' '
PETERSON, Justice (dissenting).
I agree with the dissent of Justice ~
go&h~e. .
$~"IUSmc~
FRANK'S NURSERY SALES,
lNe.. Respondent..
. v.
CITY OF ROSEVILLE. et at..
Appellantl.
No. 50167.
Supreme- Court of Mum~ota.
July 3,_1980.
Applicant brought action to c:Qmpel city
and its city manager to issues. building
permit to allow it to build a store on land it
owned in the city. The. District Court,
Ramsey CoIJnty, William Murphy, J. (Rat.),
entered judgment in favor of s.pplicant, aDd
defendants appealed. 'l'he Suprezne Court.
Petenont J.t held that: applicant's ret3.i1.
business. which consisted primarily of the
sale of lawn" garden and plant supplies bllt
which WO inclucled some craft items, was a
.'lawn and garden center" within meaning
of zoning ot1iinance.
AffU"JDed.
1. Zolling and planning c=>'762
Administration of zoning ordinance is a
governmental not a proprietary funetion;
thus, city cannot be estopped from eorrectly
enforcing a zoning ordinu.ce Ilotwithstand-
ing a property owner's reliance upon prior
incorrect interpretatio:ns of the ordinance.
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02/19/97 WED
FRANK'S NURSERY SALES v. CITY OF ROSEVILLE Mimi. 605
Clle", ~ us N.W.%l1104
Carlson, Fuller &: Finney, Stuart L. Fin-
ney and Mark E. Fuller, Bloomington, for
respondent. .. .__.-__.-A
2. Zoning and Planning ca=o602
Interpretation of a. zoning orciina:ace is
a. quution of la.w for trial ccllrt, and opin-
ion of lccal zoning authority, while entitled
to consideration, is not. binding on the court..
3. Statutes *=" 181.
Cou~ generally strive to construe a
term according to its plain &1ld ordinary
meaning.
'v' Zoning and Planning CD 232
Zoning ordinances should be .construed
s~~ctly against city and in 1~vor of proper-
ty- owner.
6. Zoning and Planning =-231
Zoning ordinance m\Ut always be con-
sidered in light of its underlying policy.
6. Zonhig and Pb.nnini: ==279
Applicant's l'etaU busine:sa, which con-
sisted primarily of the sale of lawn, garden
and plant7supplies but which also included
some cr:U't items, was a 4'lawn and garden
center" within meaning of zoning ordi-
nance.
:ity
Ung
d it
.
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Syllabus by the Q)urt.
1-2. A city is not estopped from cor-
rectly enforcing a zoning ordinance not-
withstanding a property owner's relia.nce
upon prior incorrect interpretations of the
ordinance. However, the interpretation of
a zoning ordinance i3 a question of law .for
the trial court. and the opinion of .the loc:.al
zoning authority, while entitled to conaider~
ation. is not binding on the court.
3. In this case the trial court. was cor-
reet in rejecting the city's interpretation of
the zoning ordinance, and the ccnduston of
the trial court that respondent's plann~d
store is a "lawn and garden" center within
the ordinance is upheld.
urt,
et.),
and
.urt.
3tail
the
but
-as a
lUng
! is a
:tioa;
<<tit
land-
prio~
.aElCt-.
Petenon, Bell .& Convene ~nd .Robert. C.
~el1, St. Paul, for ~ppellants.
1. No mGflt than 16~ to 18% of FI'IUIk's sales
aationu.ide are cntr. related: the reznaining
82% to 84% at sales relate to lawn aDd larden
and other horticultural prG4ucts.
Heard before OTIS, PETERSON, and
SCOTT, JJ., and considered and dec:ided by
the court en bane..
, .
PETERSON, J\Utice.
Plaintiff, Frank's Nur.>eX7( Sales, Inc.
(Frank's), brought this action to compel de-
fendants City of Reseville and its city man-
ager. James Andre, to issue a building pet'-
mit to allow Frank's to buUd 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 an nece9sary 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 aupplie.9
but also sell some craft items.1 In MlU'l:h
1976, Allied Stores, Inc. (Allied), owned
property known a.s I,.aBelte's Subdivision,
located at the intersection of Highway No.
36 a.n4 Fairview Avenue in Rcsevil1e,' Min~
nesob.. Allied and M &: M Development
Company, (M &: M) wished to build a La-
Belle'a Ca.talog Showroom on Lot 2 of that
subdivision and commenced negotiation"
with Frank's and the Learning Tree Center
to be included in an expanded develop~ent.
Frank's thereafter a.cquired Lot 1 of' the
subdivision.
After determining that rezoning of... the
subdivision would be necessary before de-.
velopment could begin, representativ:u of
Frank's and the other businesses met with
the aaistant city manager and other city
officials and staff memben to discu:58 the
proposed development and applieation for
rezoning. Application was made by Allied
and 14 &: M on July 7, 1976, to rezone thre8
lots in the subdivision. They requested that
Frank's lot be rezoned from 1-1 (indu.S~rial)
to B-1 (limited buaitldS).2 'the permltted
:I. section 8.240 of the RoseviUe City c~e Usu
permitted uses In B-1 limited business zones as
medical and denca1 services, business and pro- .
fusional otnc.es. hoapiuIs, sanitoriuntS and
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295 NORTH WESTERN BEPOltTE'B.. 2d sERIES
fied that a.t no time was Frank's informed
tha.t it would have to Umit its sales to
producb that were strictly lawn and ganien
related nar did it make promises to that
effect. One witness testified that Frank's
~uld not have promised to limit its mer';'
cha.ndise because product mix was adminis-
tered on a cempany-wide basis and the eam-
pany would not operate one store' in a. eotfl.-
pletely different fashion from ita other
stores. Finally, each of the witnesses for
Frank's. not all of whom were 'employees, ',,'
teStified that in his opinioft Frank's was a
lawn :and garden center.
Mayor June Demos te!tified, however,
that she had noised dOQbu at the council
hearing that Frank's was truly a. lawn a.nd
garden center because of its craft sales and
"supermarket-like" operation. She testified
she askad the city a.ttorney a.t the meeting
whether items not plant rela.ted could be
sold in a. lawn and garden center in a B-1
zone. 'I'he city attorney responded that the
city had the right to define the term "laW'll
and garden" center and that Frank's would
have to a.bide by the ordinance when it
sought a. building pennit. ' Demos further
testified she stated at the hearing that she
felt only laWll. garden., and indoor horticul-
tural items eculd be sold at a lawn and
garden center a.nd that Fra.nk's representa-
tives stated they would a.bide by the city's
definition.
Othu witnesses for the city, residen~
who had attended the hearing to protest the
development. also testified that' thoae in
attendance bad' 'raised questions about
Frank's inclusion' within the B-1 (limited
businas) zone, caznplaining that }'ranlt',
was 8. high-volume retail :store IDore pl"Oper-
IX located in a. B-2 (retail business) zene.'
The residents testified the council and
Frank's assured them tha.t Frank.s would
comply witb the ordinance.
On September 13, 1976, the coundl ap-
proved ,the rezoning, with Demos caSting
3. Seaian 8.300 af the RClsevll1e City Code UstS
es pennltud uses in B-2 relail business dis-
tricts. Among those uses are noriSt shops.
prde~ lupplY and fRd storn, hobby shops,
sporUnS goodS stares. and variety st.Ores.
,
, ,
u_: in; a B-1 zone include operation of
"l~wn.'a:nd garden" cente~.
During late JUly, Frank's representatives
met: ~t.h city staff memben ta p~vide
them..wi,th information about Frank's opet'-
ations' and facilities. Based Or!. that infor-
U1ati~l1, the staff subtnitted to the planning
caznniisaion a report ,tha.t referred 1:0
Fran~s as a "nu~ery a~d garden". store.
The' ,report was. considered at a. pl.a.nning
commission bearing. In addition a r.pre-
sentati....e of Allied at. the hearing presented.
slides that depicted the facilities and' opera.-
tions' of . LaBelle's, Frank's. and the Learn-
ing Tree Center. The commission was sup-'
plied with 'copies of Frank's 1975 annua.l
re~rt. which induded' a breakdown of sales
by product category, and one of Frank's
representatives informed the eommission of
the pereentage of sales related to eraft.
ite=:s. Also present at the' eommi$lion
h~ring, however, were a number of citi-
ZCnll who e:xp~~ssed concern a.bout inere8$ed
tr:I.f~ic as a result of the p~posed develo~
ment, which is adjacen.t to a residential
area.
The eommis:sion recommended denial of
the' application for rezoning. but Frank's
asserts that at no time d.uring the proc.eed-
inp' was it informed that it would not
qualify ~ a lawn a.nd garden center if the
rezoning to B-1 were granted..
DeSpite the action by the commission. a~
plicants ma.de the same presentation to the
city l:OlUl.cil. The counc:il was provided with
the same materials and saw tbe same slides.
.Again questiot15 were raised about the per-
centage of crafta sales, and again a. number
of. ~t1ze1l.:l expressed concern about traffic
as a l'SSulT. of the development.
:At trial witnessBS for Frank's tastified
tha.t wml. ~itJ officials asked about other
tha:n lawn and garden merchandise. sold. at
I1Q .time did anyone suggest that Franlc's
migbt not come within the pennitt.ed use of
the B-1 %One. Frank's witnesies also testi-
.. "
reSt homes, private clubs or lodges, belLlltY paP
lors, p-eenhauses. and lawn and garden cen-
.ter'S. No c!efiniUcn af thll uses ~ given.
the c
four ':
ment
the F
rezor.
dud.;
B-1 :
&M
finar
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plete
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q2/19/97 WED 10:26 FAX 812 452 5550
C K S & F
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. _ . ' . ". , ';. . ~ t:;::; ~ r :;':
rtned
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Lrden
that
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lyees, :1
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FRANK'S NURSERY SALES Y. CITY OF ROSEVlLLE Minn. 607
CUe as. M1M.. 21t5l'L W.:zd 6G4
the only negative vote. The council set responded that it had not. misrepresented its
four ccnditions, however: that the develop- interpretation of the ordinance but that
ment be substantially in accordance with even if it had, it could not be estopped from
the plans presented to the council; tbat all applying and en!orcing theordinanc:.e cor-
rezoned properties be deed-nstricted to ex- rectly. However, although the vast majori-
elude all uses except those permitted in the ty of the testimony and ari'lment centered
B-1 zone; that the applicants (.Allied and M on the estoppel issue, the trial court made
&: M) contribute $20,000 to the. city to help no finding on that issue.
finance a solution to the traffic problem in [1] We conclude Frank's contention that ./
the area; and tha.t a perform~nce bond be the City was estopped from denying the 'J"
posted to a.s$~re that lancbca.plng w~. com- permit must be rejected as a matter of law. '
pleted according to plan. No expliclt re- The law i%1 Minnesota is clear that a.thDini:s-?:
strictions were placeli on Frank's sale$. tration of zoning ordinances is a govern.. '!~
On December 1S, 1976, the city council, mental not a propriewy fllnction, and the;
without public: notice, amended the section. municipality' eannot be estopped from ~1'-"
of the ordinance that de$cribed the B-1 rectly enforcing the ordinance even if . the :;
zone to add a. definition of "lawn and gar- property owner relied to his detriment on
den" center. That definition exc:1uded any prior city action. W. H. Barber Co. '17. City
establishment that sold products other than of Minneapolis, 227 Minn. 77, 34 N.W.2d 710
lawn, garden, and horticultural products (1948); State ex reI. Howard v. Vi1Iage of
even though the sale of those other prod- RoseviJIe, Z44 Minn. 843, 70 N.W.2d 404
ucts was not thepnmary business of the (1955); Tbe Alexarzder Co. v. City of Owa-
esUbUshment. There had been no previous tonna; 222 Minn. 312,24 N.W.2d 244 (191=6).
. definition of "la.WI1 and gar~en:' center and Thus, even if ci~y officials and the r:i.t:y:'.
no . other permitted US!! Wlthm B-1 was eouncil did leaq ,Frank's to believe that it
defined by the amendment. would come witbln the B-1 cla.ssiiicatio~, if. ".
On January 20, 1978, after the conditions that representation was incorrect, Q1e. ,city
set by the council had been met, Frank's is not estopped from prohibitingi'Frank's
applied for a building permit. The city from D.\lilding a nonconforming bU3ines3 on
denied the permit the :same day, referring it.! lot.
to the language of the B-1 section of the 2. The central question, then, is whether
ordina.nce. Frank's contends that because the trial court correctlv reieded the city's
the property had been deed restricted to \ int.e~ret.ation of the ZOnlnsr ordinance in
B-1 uses, it eould no~go back to the council' holding that Frank's is a lawn and garden
to seek approval for a rezoning to B-2.' center Wlthin the B-1 classification.. ,The
Frank's therefore brought. an action to coma, Clty eonc.ec1ea on appeal that the December
pel' issuance or the building permit. The ~ 1S, 1976; a.mendment to the ordinance ,,!.&lI
trilLl court concluded that the December 13, invalid for lack of notice and thel'1!fore can.
1976, amendment to the ordinance was in- not be applied to exclude Frank's from t,he
valid for lack of notice and that absent the B-1 zone. The city contends, however, t~at
amendment, Frank's was a "lawn and 'gar- even the pre--amendment ordinance can..be
den" center within the meaning of the B-1. interpreted to exc:lude a store like Fra*'s
section of the ordinance. . that sells some other than lawn and garden
1. At trial Frank's contended, fIrst, that: items, and the trial court erred in substi~~t-
the words and conduct of the city ofiu:ials,'. ing its own interpret.a.tion for that of. the
'who had complete information on its busi-: city. -..-'
ness; led Frank's to believe that B-1 zoning' We stated in Arcadia Development Coz,p..
would be appropriate. Frank's contended v. City of BloonllngtDn, 267 Minn. 221, 226,
that it relied on that belief to ib detriment 125 N.W.24 846, 850 (1964), tha.t "[i]! the
and. that. the city should therefore be as- reasonableness of the action of the City
. topped from denying the permit. 'the city council is a.t least doubtful, or fairly c!ebata.
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608 Minn.
295 NORTH WESTERN REPORTER, 2d SERIES
ble. a eourt. 'NUl not interject ita own eonclu-
sioe:! as to more prefens.ble actions.". In
Village of Edina v. Joseph, 264 Minn. 84, 98,
119 N.W.2d 809, 815 (1962), quoted in Area-.
dia, W8 stated:
. We have repeatedly said with rupect to
the decisions ot municipal and other gOY.
.nunental bodies having the duty of
lJ1aking decisions involving judgment and
dilcretion that it is not the province of
the court to substitute its judgment for
that ot the body making such a. decision,
but merely to c!etermine whether that
~y was within its jurisdiction, wu :not
mistaken as to the applicable law, and did
. not act arbitrarily, oppressively, or unrea-
,sonably, and to de~rmine 9Thether the
avidence could reasonably support or jus.
tify the detennination.
The city argues that. the narrow scope of.
review expressed in ,Arc.adia and Joseph
required the trial court to defer to the
CDuneil's reasonable interpretation of "lawn
and garden" center under the ordinance.
'. We do not a.gree.:" ,
[2] The scope of review by a trial court
of a city's interpretation of an ordinance is
a quution of first impression in this state.
The general rule appears to be tha.t while
issues of !act and legislati't'e policy-making
decisions should be left to the city's deter-
rnination, subject only to. the ~roaci limits of
_'the.~'a'Cbitrary a.nd~prjci.C!us" st3.nda.rd, the
i~~~~tio~ of ~~. e~ti!1g o~din3Jl.ce is a
question of law for the ecurt. S Ra.thkopf,
Tbe- La~ ot ZQ:aiilg. iuld'Plannlng ch. 65, ; 3
(4th ed. 1979) (hereinafter Rathkopf). The
opinioM of t.he governmental authority,
"hile entitle<l to consideration. are not as
persu~ve as they would be on quutiona of
fact within ita purvh:w. Thus, where th_
question is ~hether an ordinance is a.pplica-
ble tQ certain flLl:u, the det.enzUnation of
those facts is for the governmetlt.8.l authori-
ty, but tbe manner of applying the ordi.
!lallce to t.he facts is for the court. Id. The
prior opinions of this c:aurt restric~ing tbe
trial court's re-vie\V to a determination of
whether the citY. decision .as arhitr&rY.
and capricious bave been in cases involving
the city's fact-fitlding or policy-making C8;-
pacity and therefore do not control hue..
In fact, we noted in Joseph that it is for the
court to de~rmine whether the governmetl-
tal body ~'was not mistaken as to the appli-
cable law," implying that t.he c:ourt has the
responsibility to determine the correct in-
terpretation..
3. 'l'he issue in this case, then, is whe~-
er the trial court eorrecuy interpreted the
pb1'ue '~~~wn and garden" center to include
a store such u that which Frank's wishes to
build. The facts about the nature of
Frank's operations are not in dispute.
There is no question tha.t. Frank's sells pri-
marily lawn and garden products; the issue
is whether a lawn and. garden center may
also sell other than 130 wu and garden prod-
ucts. The city claims the language of the
ordinance precludes such :Ion interpretation,
hut the trial court, in :linding Frank', t.c be
a lawn and garden center, apparently ecn-
eluded that the term allowed a store that
was not so restricted.
\w.,
trial
lawn
statu
ciple.
(5~
consi
Low,
42 ~
e;Ca.n
diet.::
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outh
pert'!
a.lth\
zone.
twe(
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ume
use.s
lterr
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loca
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exc:
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(3] We bflllieve the trial court's interpre-
tation should be upheld. Several rules of
construction lend support to this int.arpreta-"
tioD. First, ,!;ourta generally s~rive to:.con-;:
s~e a term according to ita plain and
(~rdinary meaning. Cf. Charles W. Sexton
Co. v. Hatfield, 263 Minn. 187, 116 N.W.2d
574 (1962). S Anderson, American Law of
Zoning ~ 16.10 (2d ed. 1977) (hereinafter
Anderson); 1 Rathlcopf ~ 9,03. The term
"lawn and gardet/' .....n~elf does not
seem to exclude stores that primanly seU
horticultural items hut sell some other
items as well. Moreover, Frank's witneuel,
familiar with retail merchandising t.erms,
testified they would' consider Frank's a
lawn and garden center.,
I
t 4] Second, zoning. ordinances should be :
construed strictly against the city and in
. favor of the property ovmer.. 3 Anderson
! 16.02: 1 Rathkopt ~ 9.03. Clearly, the
term "lawn and garden" center is suscepti-
ble of varioua interpretations that are =o~
~ less restrictive in scope. We m\lSt .give .:.J
w~ig~t to ~e in~retation that, w:~. .t.1~ .;,/'
wttbin the confmes of the term, 15 least'..:
restrictive ~~D the rights of the pro~"5J
LUGER Y. CITY OF BURNSVlLLE Mi11D. 609
\ Q. ... M1IIa..o ZSI N.W.:Id ...
owner to use his land as he wishes.\ The While these circumstances are not disposi-
trial court's condusion that Fra11k's is a tive, they justify giving lesa weight to the
lawn and garden center does not distort the city's present interpretation than might
.statute and gives prcper effect to this prin- otherwise be accorded.
ciple. [6] We hold, therefore, that the trial
[5] A zoning ord.inance must always be court carrectly concluded Frank's is a.'lawn
considered. in light of it.. underlying poliey-, . and garden center within the B-llection of
Lowry v. Cj~ of MaMato, .231 ~inn. 108, the zoning ordinance and aI!"IrIn the order
42 N.W.2d 558 (1950), but In thIS c:a.se an compelling the city to ~ue all necaaary
examination of legislative intent deles not building permits.
dictate a contrary reslllt. The city contends A!fi ed
Frank's resemhles more an ordinary retail 1nII .
outlet, which is not permitted in B-1 but is
. ,permitted, instead, in B-2. It is argued,
. . although not a part of the record, that B-1
zones are designed to act as buffers be.
twun residential areas and full.scale com-
mercial area.!. The city notes that the pel'
mit.ted uses in a. B-1 zone are not large-vol-
ume retail uses, whereas permitted B-2
uses inelude establishments that sell many
items sold by Frank's. The city contends,
therefo~, that it was reasonable to con-
clude 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 retall
stores Were mea.nt to be confined generally
to B-2 zone.s, nothing in the B-1 section
excludes large retail lawn and garden cen-
ters. It is Frank's size and operating style,
the "supennarxet" approach complained of
by the council and residents, not the limited
preaence of other than lawn and garden
items, that is the actual concern of the city.
Thus, it does not contravene the intent of
the ordinance to include within the phrase
,"lawn and garden" center a store like
Frank's.
Certain1y,~the. ~.~*~~;e,l'i_r;:ta~'
,ti6asv!'<tha:ordinance ',is ;.ep~itled' to riupeC:t,'
but that interpretation is not persuasive,
particularly here. Tbe court eouId have
found that even the council agreed with i'b
interpretation of ulawn and garden" center
until cofttinuing community presaure com-
pelled the cogncl1 to attempt to redefine the
term. The council's attempt to add a defi-
nition of the term to the ordinance also
suggests that it felt the ordinance, absent
the amendment, was not so restrictive.
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David E. LUGER. Appellant,.'
, v.
CITY OF BURNSVlLLE, Respondent.
No. 50321.
Supreme COurt of Minnesota,. ,
Jgly 3, 1980.
Property owner appealed from an order
of the District Court, Dakota. County, Ray-
mond Pavlak, J.. denying owner's appUca-
tion for a. writ ot mandaml1S to comPel city
council to grant a variance allowing him to
construct a bowse on his land. The Su-
preme CQurt, Scott, J.. held that where no
statute or Ormn&!lC8 permitted or teCluired
neighborhood consent to a zoning'vanance,
city council could not require every .abut.-
ting property owner to consent. to owner's
proposal to construct a home, and since city
council voted U11&nimously in favor of the
grant at the variance, owner was el1~~~ to
a writ of mandamus compelling 'p~~ to
grant owner a varianee. ' .'
'.," ...
Writ granted.' . ~ ..' .~:;::
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1. Zoninl' and Pla:nning C:;o <<83 .' . :.'.__ : '
.A "variance'. allows property.w:tlc
used in manner forbidden by zoning:.o~-
; I'
......
Chapter 28A
Licensine Food Handlers
28A.01 Ci. tati.on, Kinnesota c:onso~idated food. licensing
~aw.
Sections 2BA.01 to 2BA.16 shall be known as the "Minnesota
consolidated food licensing law."
HIST: 1971 c 339 s 1
28A.02 Declaration of pol.ic:y.
It is hereby declared to be the policy of the legislature,
recognizing that food in its various for.ms 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 form 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
28A.03 Def:inj. ti.ona .
Subdivision 1. Sc::ope. The definitions in this
section apply to sections 28A.01 to 28A.16.
Subd. 2. Commiaaioner. "Commissioner" means the
COmmissioner of agriculture.
Subd. 3. Person. "Person" means any individual
firm, corporation, company, association, cooperativ~ or
partnership and includes any trustee, receiver, assi~ee
other similar representative thereof. '
or
Subd. 4. P~ac:e of bu.ineaa. "Place of business"
means every location where food or food items are manUfactured,
processed, sold, stored, or handled, including buildings
locations, permanent or portable structures, carnivals, ,
circuses, fairs, or any other permanent or temporary location.
Any vehicle or similar mobile unit from which food is sold
shall be considered a place of business for purposes of this
s~ction if the food therefrom has been manufactured, packaged or
d~spensed from bulk, or processed in any manner thereon.
. - .. .
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;:jUDO.~. Fooel. "Food" include~ 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) "Perishab~e food" is food which 1nc~udes, but is not
l~ted 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.
(cl "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
her.metically sealed containers processed by heat to prevent
spoilage; paCkaged pickles; jellies, j~ 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 (a), (b), and (cl, when they are stored
and handled in accordance with good commercial practices.
(e) "Nonperishable food" is food described in paragraph (dl
with a self life of more than 90 days
28A.04 Liaenae reqaj.:ed.; c:uatam p%'Oce..~ pe=a.i t
appllca't:i.on.. ; Z'eneW&l.a.
Subdivision 1. Appllcat::i.ou; da~ -o~ i...uazac.. 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 li.cense shall be made to the
COmmiSSioner in such manner and time aa required and upon such
for.ms as proVided by the COmmissioner and shall contain the name
and address of the applicant, address or description of each
place of busineas, 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 food 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
28A. 08.
,;)l,WQ.~. CWI'CCm processing pe%mit. 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 issued to the
applicant. No additional fee shall be charged for a custom
processing permit.
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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 app~es 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.DS CLaa.~iC&~on.
All persons required to have a license under section 2BA.04
shall,be classified into one of the following clas.es 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 term includes a person who sells
food direc:tl.y to the ultimate consumer through the uae 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 hancUes 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, ferment, 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.
Cd) 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 ~e 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
28A.06 Extent of ~cen.e.
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 a~pect 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.
HIST: 1971 c 339 s 6
2BA.065 L:icenae requ;irementa for a c:arn:i.val., ci.rcua, 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 Z..uance of licen...
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 mode(s)
of business described in that person's license application. A
valid and properly displayed license shall 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
2BA~ 075 De~egation t:o ~oca.l board. of heal.th.
The cO~ssioner may enter into an agreement with a local
~oard o~ healt~ to delegate a~l or part of the licensing and
~nspect~on dut~es of the CO~ssioner pertaining to retail food
handlers that are grocery or convenience stores.
HIST: 1991 c 52 s 2
28A.08 License ~ees; penal t::i.es.
'~
SUbdivision 1. Gena%&l. License fees, penalties for
late renewal af licen~e~, and penalties for not obtaining a
license 'before~conducting 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 any penalties for late payment of said
assessments, nor shall inspection fees, be affected by this
chapter. . The penalt!es may be waived by the commissioner. Fees
for all new licenses must be based on the anticipated future
gross annual food sales.
"
".-'"
Subd. 2. Repealed, 1995 c 220 s 141
Subd. 3. ree. effective JUly 1, 1996.
Type of food handler
~ Penalties
License Late No
'\,. Fee . Renewal License
, 'Effecti ve
Jul.y 1, 1996
1. Retail food handler
Ca) Having gross sales of only
prepackaged nonperi~hable food:~""'\"
of less than $15,000 for I
the immediately previous I
license or fiscal year and
fi.li.ng a statement with the
commissioner $ 45 $ 15
Cb) 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
Cc) Having $50,000 to $250,000
gross sales for the immediately
previous license or fiscal year $118 $ 35
Cd) Having $250,000 to
$1,000,000 gross sales for the
immediately previous license or
fiscal year $202 $ 50
(e) Having $1,000,000 to
$5,000,000 gross sales for the
immediately previous license or:!:..
fiscal year -- $562 $100
Cf) Having $5,00~,000 to
$10,000,000 gross sales for the
immediately previous license or
fiscal year $787 $150
(g) Having over S10,000,000
gross sales for the immediately
previous license or fiscal year $899 $200
2. Wholesale food ha-ndler
$ 25
$ 25
$ 75
$100
$175
$300
$350
(a) Having gross sales or
~ervice of less than $25,000
for the Lmmediately previous
license or fiscal year $ 50
(b) Having S25,000 to
$250,000 gross sa~es or
~ervice for the ~ediately
previous license or fiscal year $225
(c) Having $250,000
to $1,000,000 gross sales or
~ervice from a mobile unit
Without a separate food facility
for the Lmmediately previous
license or fiscal year $337
(d) Having $250,000
to $1,000,000 gro~~ ~ale~ or
service not covered under paragraph
Ce) for the immediately
previous license or fiscal year $449
(e) Having $1,000,000 to $5,000,000
gros~ sale~ or service for the
Lmmediately previous license or
fiscal year S562
(f) Having over $5,000,000 gross
~ales for the Lmmediately previous
license or fiscal year $647
3. Food broker $112
4. Wholesale food processor
or manufacturer
(a) Having gross ~ales of less
than $250,000 for the ~ediately
previous license or fiscal year $310
Cb) Having S250,000 to Sl,oOO,OOO
gross sales for the ~ediately
previous license Or fiscal year $449
Cc) Having $1,000,000 to
$5,000,000 gross sales for the
~ediately previous license or
fiscal year $562
Cd) Having over S5,000,000
gross sales for the immediately"
previous license or fiscal year $647
5. Wholesale food processor of
meat or poultry products
under Supervision of the
U. S. Department of Agriculture
Ca) Having gross sales of less
than $250,000 for the ~ediately
previous license or fiscal year $169
Cb) Having $250,000 to Sl,OOO,ooO
gross sales for the immediately
previous license or fiscal year S253
Cc) Having Sl,OOO,OOO to
$5,000,000 gross sales for the
immediately previous license or
fiscal year $310
Cd) Having over $5,000,000
gross ~ales for the ~ediately
previous license or fiscal year S366
6. Wholesale food manufacturer
having the permission of the
COmmissioner to use the name
Minnesota Farmstead cheese $ 30
$ 15
$ 50
$ 75
$100
S125
$150-
$ 30
$ 75
$100
S125
S150
$ 50
S 75
$ 75
$100
$ 10
S 15
0$100
$150
S200
S250
$300
$ 50
$150
$200
$250
S300
$ 75
S125
$150
$175
$ 15
7.
Nonresident frozen dairy
manufacturer $200
Wholesale food manufacturer
processing less than 70,000
pound~ 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
licen~ed whole~ale 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 ~ 43; 1996 c 407 s
19
2BA.09 J:napecuon fee. for vend:i.nq mac:lU.ne..
Subdi vision 1. Annual. fee; exc:epUOIUI. Every
coin-operated food vending machine is subject to an annual state
inspection fee of $15 for each nonexempt machine except nut
vending machine~ which are ~ubject to an annual state in~pection
fee of $5 for each machine, provided that:
(a) Food vending machines may be inspected by either a home
rule charter or ~tatutory 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
in~pection 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 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.
(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. J:denti.ficati.on; rules. 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.08S Re~apection fees.
Subdivision 1. Violations; prohibited acta. 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, 31A, 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, 3~, 32,
or 34. The first reinspection of a firm 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 firm 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 withdrawal; 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, storms, accidental fires, and
power outages are excluded. The COmmissioner, upon request of
the food handler, shall provide, within a reasonable t~e, an
estimate of the anticipated cost for resolving the food safety
emergency.
Subd. 3. Manner and timi.nq 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 timely 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. Deposi.t; appropri.ation. 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
appropriated to the commissioner to pay the expenses relating to
reinspections conducted under the chapters listed in subdivision
1.
Subd. S. Appe~.. Food handlers may appeal
reinspection fees and assessments to the department hearing
officer within 30 days of receipt of the notice of fee
28A.09 :tnspection fees for vend.1nq mac:h;i.nes.
\..~.-:-;:-;.,-.:.:.,~';.
- ~ - ~ .... '." . - - '.'
~---;.~._-;;;..
Subdivision 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:
\~;;_.
(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
~ose 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 qum 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 ~ose 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
~ose 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.
(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. Identif:Lcation; raJ.e.. 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.l0 Po.t:Lnq o~ ~cen.e; raJ.e..
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 confoI:mity with law as the
commissioner deems necessary to effectively and efficiently
carry out the provisions of sections 28A.Ol to 28A.16.
HIST: 1971 c 339 s 10; 1985 c 248 s 70; 1986 c 444
2BA.ll Adjus'tlDenta.
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
_..__0_- '~::e~se.
28A.12 Violations.
Any person who does not comply with the prov~s~ons 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 auspend 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 permit 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 t~e
and place, and at such t~es as the matter may be adjourned to,
the COmmiSSioner, or "an 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 ~aa.f.r of buaiDeaa.
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 ~ediately by anyone in
possession of the same.
HIST: 1971 c 339 s 14
'.
'. <'''-
.,...
..;
..
2BA.1S ~ua1Qna.
Subdivision 1. The licensing provisions of sections 28A.Ol
to 28A.16 shall not apply to the following:
Subd. 2. Pe=sons selling the products of the far.m or
ga=den occupied and cultivated by them, 0= to pe=sons 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, cha=itable 0=
=eligious organ1zations not regula=ly engaged in the business of
manufactu=ing, p=ocessing, 0= selling food at thei= established
educational, charitable Or religious institutions.
Subd. 3. A far.me= slaughte=ing pe=sonal animals, =abbits
0= poultry, on the far.me='s own farm fo=: (a) pe=sonal Use; 0=
Cb) the Use of the farmer's immediate family.
Subd. 4. Any pe=sons required to be licensed unde= chapter
19 0= trucks operating under a ce=tificate 0= per.mit issued
Pu=suant to chapte= 221 0= wa=ehouse operato=s, other than cold
sto=age warehouse operators, offering storage or warehouse
facilities for Compensation.
Subd. 5. Pe=sons whose p=incipal mode of business is
licensed unde= section 157.16 0= 327.15; p=ovided 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 administe=ed by the COmmissione=. as they
relate to composition, standa=ds of identity, adulte=ation,
labeling Or misbranding of food.
Subd. 6. Repealed, 1978 c 502 s 3
Subd. 7. Pe=sons whose p=incipal business is not food
handling but who sell only ice manufactu=ed and p=epackaged by
another, bottled or canned soft drinks, prepackaged candy Or
nuts at =etail, 0= persons who fo= thei= own convenience 0= the
convenience of thei= employees have available fo= =ehydrat10n
and consumption on the p=emises such nonperishable ':l~ezu 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
d=inks and prepackaged candy or nuts at retail.
Subd. 9. An individual who p=epa=es 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 yea=. 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."
2BA.16 Pe%aona "]'~ftg 41qao%.
\The provisions of the Minnesota consolidated food licensing
law, sections 28A.Ol 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 drinks ~",.I .........._ _1._ -' __--------.....
.
,
28A.17 License renewal.
Licenses for food processors or manufacturers or food
brokers sha~~ be renewed annua~~y on January 1. Licenses for
retai~ and whole~ale food handlers shall be renewed annua~~y on
July 1. Licenses for mobile fooq concessions and for retai~
mobile units shall be renewed annually on April 1.
HIST: 1976 c 2 s 7; 1996 c 407 s 25
2BA.20 Food. aafei:y acivi.ao:y c:oaai. t:~.
Subdivision 1. B.'tab1i~"1:. A food safety advisory
committee is established to advise the commissioner and the
legislature on food issues and food safety.
Subd. 2. ""-l'harah:i.p. (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 wham:
(i) two persons are health or food professionals;
(ii) one person represents a statewide general farm
organi.zation;
(iii) one person represents a local food inspection agency;
and
(iv) one person represents a food-oriented consumer group.
(b) Members shall serve without compensation. Members
appointed by the governor sha~~ serve four-year te~.
Subd. 3. Organi.za~on. (a) The committee shall meet
monthly or as determined by the chair.
(b) The members of the committee sha~~ annua~ly e~ect a
chair and other officers as they dete~ne necessary.
Subd. 4. S~f. The commissioner of agriculture
shall provide support staff, office space, and administrative
services for the committee.
Subd. 5 . Du~e. . The committee shall:
(1) coordinate educationa~ efforts about various aspects of
food safety;
(2) provide advice and coordination to state agencies as
requested by the agencies;