HomeMy WebLinkAbout2.b. Waste Management and EnclosuresCITY OF ROSEMOUNT
EXECUTIVE SUMMARY FOR DISCUSSION
COMMITTEE OF THE WHOLE: December 12, 2001
AGENDA ITEM: Waste Management and Enclosures
AGENDA SECTION:
Discussion.
PREPARED BY: Charlie O'Brien
AGENDA NO.
Code Enforcement Official
7. h.
ATTACHMENTS: Draft Ordinance Proposal
APPROVED BY:
Attorney's letter
-7��
Recent enforcement activity related to the maintenance, placement, and storage of receptacles for
waste management has illustrated the need to update this section of city code. At this time we
have completed a proposed ordinance revision that would update the requirements for storage
and screening of dumpsters and other waste receptacles. This update is necessary partially
because the technology used by waste management companies has changed dramatically in the
last decade. Also, the advent of recycling and greater restrictions at the Federal, State, and
County levels on separation, sorting, and holding of various waste products and hazardous
substances has increased the number and type of waste containers being stored. The proposed
ordinance will more clearly define standards for waste enclosures and containers at the
individual property level.
TES:
For discussion only
Ordinance proposal for dumpster enclosures, requirements, materials and
construction. The following proposed ordinance change is a blend of the present
ordinance language from City Code and City Zoning. I propose that the two
sections be blended and set into City Code.
New Definition's:
Waste Container: Any container designed and used to contain or store solid waste
recyclables, yard waste, liquid waste, or hazardous wastes until the time of weekly
collection.
Enclosure: The required area for storage of waste containers between the
times of weekly collection. This area must conform to the requirements of 5.1.3:A 4.
Solid Waste: Any solid waste produced and stored for collection by any
residential, commercial, institutional or industrial use and stored until the time of weekly
collection.
Recvclables: Any solid waste product such as glass, plastic, and certain metals
which are routinely collected and processed for recycling, which are stored until the time
of weekly collection.
Yard Waste: Any waste normally generated in the maintenance of yards and
property such as, grass clippings, leaves; twigs, branches, brush, which is not com osted
in a manner conforming to ordinance or regulation but stored until the time of weekly
collection.
Liquid Waste: Any waste product, which exists, or is produced, in a liquid form
and stored until the time of weekly collection.
Hazardous Waste: Any waste product, whether solid, liquid, or gas, which is
designated as a hazardous waste product by Federal, State, County, Municipal, or any
regulatory gency that is produced and stored until the time of weekly collection.
5 -1 -2: DISPOSAL REQUIRED: It shall be unlawful for any resident, tenant, property
owner, or business owner perse* }to fail to dispose of Munieipal -solid waste, recyclables,
yard waste, liquid waste, or hazardous wastes hereinafter- e-alled "sell waste " which may
accumulate on property owned or occupied for residential, institutional, commercial, or
industrial use by hi m, in a sanitary manner at least once each week.
5 -1 -3: CONTAINERS, REQUIREMENTS:
A: Use Required, Description:
1. All solid waste recyclables, yard waste, liquid waste, and hazardous waste
accumulating between the times of collection shall be placed in 4he-ea*s
prEwided for tightly closed containers specifically designed for such
Purpose.
2. Every resident, tenant, property owner, business owner householder
occupant of any dwelling house, boarding house, restaurant or any place of
business ha v , in producing solid waste recyclables, yard waste, liquid waste,
or hazardous waste to dispose of shall provide who does not other-wise PfE)Vide
for the disposal of such solid -waste in a sanitary manner which complies with
all related Federal, State, County and Citv laws or regulations, and shall
provide h mself ith one or more tighter covered containers specifically
designed for proper solid waste recyclables, yard waste, liquid waste, or
hazardous waste - storage sufficient to receive all solid waste recyclables, yard
waste, liquid waste, or hazardous waste which may accumulate between the
times of collection.
Ppe -All waste containers shall be kept in an enclosure that meets
requirements of subsection 4, until the day of scheduled pickup.
a. This section shall not apply to waste containers set out by the City for
public use.
4. Enclosures shall meet the following criteria.
a. Screening. All residential structures with more than two units, and all
commercial, industrial, and institutional uses shall provide a screened
enclosure for required waste containers for, solid waste, recyclables,
yard waste, liquid waste and hazardous wastes. Such enclosures shall
completely conceal the dumpsters or containers from all sides and be
designed in such a manner as to contain any spillage from the
containers.
b. Materials. Enclosures shall be constructed of durable, weather
resistant materials, which are properly anchored. Enclosure materials
shall be similar to the principal building.
c. Size. Enclosures shall provide sufficient space for required waste
containers for solid waste, recvclables yard waste liquid waste
hazardous wastes, and any other waste container that is intrinsic to the
operation of a business on the premise. In no case shall the enclosure
exceed 600 square feet. in area.
d. Location.
i. Enclosures shall be located behind the front building line of the
principal building (as extended to the side lot lines).
ii. Enclosures may be integrated into a building if approved by the
Building Official.
iii. Enclosures shall be set back 10 feet from the lot line of anv
abutting residential property.
e. Landscaping. Enclosures shall be landscaped in accordance with city
regulations.
f. Flooring. Enclosures shall have flooring constructed of concrete or
bituminous material.
g. Access. Enclosures shall provide access that will facilitate efficient
storage and removal of waste materials in all seasons
5. Penalty. Any violation of the sections relating to the screening or storage of
waste containers, solid waste recvclables yard waste liquid waste or
hazardous waste shall be guilty of a misdemeanor under this ordinance
a. Exception. The application of the misdemeanor penalty for violation
of the storage and screening of wastes and waste containers under city
ordinance shall not preclude or hinder any penalty additionally applied
by any other regulatory agency.
11.1:
E. , , r-efuse or- garbage sha44
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p ro p er-! ) ,
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ter-age or- bur-ial faeility, aeeOFdifig to the laws ef the State of
Minnesota. (Or-d. B, °�" Wastes. All waste storage shall comply with
sections 5 -1 -2: and 5 -1 -3: of the Ci . Code.
C H A R T E R E D
470 Pillsbury Center
200 South Sixth Street
Minneapolis MN 55402
(612) 337 -9300 telephone
(612) 337 -9310 fax
http://www.kennedy-graven.coi
Fri
AIM
CHARLES L. LEFEVERE
Attorney at Law
Direct Dial (612) 337 -9215
email: clefevere @kennedy- graven.com
November 21, 2001
Mr. Rick Pearson
City Planner
City of Rosemount
2875 145`' St. W.
Rosemount, MN 55068
RE: Dumpster Enclosures
Dear Rick:
Some time ago I indicated that I would look into the question whether the City may require
commercial properties that currently do not have garbage dumpsters enclosed to construct an
enclosure.
Attached is a memorandum from Mary Tietjen of my office on the subject in which she
concludes that there is no constitutionally vested right, or grandfathered status, in operating an
unenclosed dumpster and that the City may therefore require construction of dumpsters (or, I
suppose, that trash and garbage be stored indoors until collected.)
Please let me know if you have any further questions.
Very truly yours,
Charles L. LeFevere
CLL:lh
Enclosure
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MEMORANDUM
TO: Charlie LeFevere
FROM: Mary Tietjen
DATE: November 19, 2001
RE: Rosemount Ordinance Requiring Garbage Enclosure
Facts
The City of Rosemount is proposing an ordinance that would require certain existing businesses to
build a storage or enclosure area for garbage containers. The ordinance, of course, would require
some financial investment on the part of the businesses to build the required enclosure. I presume
the proposed ordinance is based on health, safety, sanitation and aesthetic concerns.
Issues
I. Do existing businesses without storage or enclosure areas have a vested right to continue to
operate as a "nonconforming use?
II. Is an ordinance requiring enclosure of garbage containers on commercial premises a valid
exercise of the police power? Does a financial detriment to the property owner invalidate
the ordinance?
Discussion
I. The proposed ordinance is a proper exercise of the police power for the health, safety
and welfare of the City's residents.
Municipalities have wide discretion in the use of the police power for the purpose of preserving the
public health, safety, *morals and welfare or of abating public nuisances. State v. Crabtree Co. 218
Minn. 36, 15 N.W.2d 98, 100 (1944). This power includes aesthetic considerations, especially
when included as part of overall health and safety considerations. See County of Pine v. State
DNR 280 N.W.2d 625, 629 -30 (Minn. 1979); Naegele Outdoor Advertising Co. v. Village of
Minnetonka 281 Minn. 492, 494 (1968). Before the exercise of the police power can be held
unconstitutional, it must be found that it has no substantial relationship to the public health, safety,
morals, or general welfare. Freeborn County v. Claussen 295 Minn. 96, 203 N.W.2d 323 (1972).
In determining whether a city ordinance is within the scope of the city's police power, the council's
estimate of the general welfare should be followed unless plainly erroneous. City of Duluth v.
Cerveny 218 Minn. 511, 16 N.W.2d 779 (1944).
Restrictions or regulations directly affecting the use of private property can be a valid exercise of
the police power. See County of Pine 280 N.W.2d at 629 -30; A.B. Hudson v. City of Shawnee
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790 P.2d 933 (Kan. 1990) (all property is owned subject to the limitation that its use may be
regulated for the safety, health, morals, and general welfare of the community in which it is
located); Vol. 6A McQuillin's, Municipal Corporations, §§ 24.17, 24.22 (private property,
businesses, corporations and individual persons, are subject to a reasonable exercise of the police
power.). In County of Pine the Minnesota Supreme Court upheld an ordinance establishing land
use controls for the purpose of preservation and aesthetics as a valid exercise of the police power.
The Court recognized the well- settled principle that the police power may be used as a tool to
protect the welfare of citizens:
The police power, in its nature indefinable, and quickly responsive, in the interest of
common welfare, to changing conditions, authorizes various restrictions upon the
use of private property as social and economic changes come. A restriction, which
years ago would have been intolerable, and would have been thought an
unconstitutional restriction of the owner's use of his property, is accepted now
without a thought that it invades a private right.
280 N.W.2d at 630. The proper exercise of the police power cannot be defeated merely because
property rights are incidentally benefited, invaded, impaired, destroyed or taken without
compensation. McQuillin's, § 24.22: see also City of Scottsbluff v. Winters Creek Canal Co. 53
N.W.2d 543 (Neb. 1952) (an ordinance enacted in the exercise of police power is not necessarily
invalid because it infringes on private rights or property, but such infringement should not be
unreasonable, or confiscatory); City of Shawnee su ra (a reasonable regulation of property under
the police power is not a taking). Further, the fact that a plaintiff may suffer some financial
detriment does not require invalidation of a valid police power regulation. McCarthy v. City of
Manhatten Beach 264 P.2d 932, 938 (Cal. 1953); see also Associates v. City of Newark 623 A.2d
1366 (N.J. 1993) (city ordinance requiring certain large multiple dwelling owners to provide armed
security guards on their premises was valid exercise of power). In McCarthy the city adopted a
zoning ordinance which required that plaintiffs' property could only be used for beach recreational
activities. In upholding the zoning restriction as a valid exercise of police power, the court held that
[E]very exercise of the police power is apt to affect adversely the property interest of
somebody ... It is implicit in the theory of police power that an individual cannot
complain of incidental injury, if the power is exercised for proper purposes of public
health, safety, morals and general welfare, and if there is no arbitrary and
unreasonable application in the particular case.
Id. A regulation or ordinance is not valid if it attempts to impose unreasonable restrictions on the
use of private property, there is no public interest involved and its only effect is to serve private
interests. Young v. Mall Investment Co. 172 Minn. 428, 215 N.W. 840 (1927) (ordinance
regulating excavations and providing that any person excavating shall fully protect adjoining land
did not come within the police power and impaired vested rights of the adjoining landowner to the
use of his property).
In the present case. I presume the proposed ordinance requiring the enclosure of garbage containers
is based upon aesthetics, and the desire and need to promote good public health and sanitary
conditions for the general welfare of all the residents of the City. The fact that the ordinance will
require private property to make a reasonable financial investment to build the enclosure does not
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invalidate the ordinance or constitute a taking of private property. All individuals and businesses
are subject to the police power and as long as the regulation is reasonable and substantially related
to the public health, safety and welfare, it will be upheld.
H. Existing businesses do not have a vested right to operate free from valid police power
regulations.
Existing businesses could argue that because they have been allowed to operate without a storage
area for garbage, that they should be allowed to continue to do so. In essence, a business could
argue that it is a "nonconforming use'' and that the City cannot enforce this new requirement against
them. However, I believe such an argument would fail.
Most case law addressing nonconforming uses is in the context of zoning. Some courts have held
that "[a] nonconforming use is a vested property right that zoning ordinances generally may not
abrogate." Citv of Blue Springs v. Gregory 764 S.W.2d 101, 102 (Mo.App. 1988). However,
"[a]lthough zoning ordinances generally may not abrogate vested property rights, all property is
held subject to the valid exercise of the police powers of the government and whatever burden may
be imposed by the state for the enforcement and protection of the rights of all. Id. at 102 -03; see
also Vol. 6A McQuillin's Municipal Corporations § 24.22 (private property and businesses are
subject to the proper exercise of a city's police power); State Ex Rel Rose Bros. Lumber & Supply
Co.. Inc. v. Clousing 198 Minn. 35, 268 N.W. 844 (1936) (no person can acquire a vested right to
continue in a business which is subject to legislative control and regulation under the police power);
State v. Citv of Austin 75 N.W.2d 780, 784 (Minn. 1956) (ordinance limiting the number of
licenses to be granted for the ownership and operation of pinball machines is valid as a legitimate
exercise of the municipality's police power).
In Clousing a lumber company challenged a city ordinance requiring permission from the city as a
condition to erecting and maintaining buildings to be used for the sale or storage of lumber. The
Court rejected the company's argument that it had a vested right to continue its business free from
city regulations:
Nor is the argument of respondent that the ordinance deprives it of a vested right to
carry on a business already established based on sound legal principle. Respondent
does not have a vested right to continue to maintain its lumberyard free from any
restrictions or regulations enacted by the city council in the lawful exercise of its
delegated police power.
Id. 198 Minn. at 44 -45, 268 N.W. at 849; see also Young supra (a statute or ordinance that
attempts to impose unreasonable restrictions on the use of private property is void as an attempt at
impairment of vested rights; but there cannot be any vested right to the use of property in such a
manner that it constitutes a nuisance, or an injury to the public health or morals, or an injury to the
property rights of others); City of Blue Springs supra (where city enacted ordinance prohibiting the
parking or storing of a commercial vehicle within certain districts, court rejected appellant's
argument that he had a vested right to park his commercial truck in his driveway because he had
been doing it for 14 years).
In the present case, existing businesses do not have a vested right to continue to operate free from all
reasonable municipal regulation. The businesses, like all private property, are subject to the city's
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police power. The proposed ordinance is clearly a valid exercise of the police power. Thus, a
property owner could not successfully claim that the ordinance deprives him of any vested rights.
Also, I think this argument is even stronger if the City's proposed ordinance is for the purpose of
abating a nuisance related to exposed garbage containers.
The Rosemount City Code allows the continuation of lawful uses and prohibits the alteration of
enlargement of structures, unless the change would bring the structure into conformance.' Here, of
course, the property owner is not proposing to enlarge or alter the property. Rather, the City is
requiring the alteration by ordinance. The addition of the garbage enclosure would simply bring the
property into conformance with new requirements. See Op 59a -32, Nov. 30, 1960
(where ordinance permitting nonconforming use provides that "such use may extend throughout the
building, provided no structural alterations are made, other than those required by ordinance or laiv,
building could not be enlarged as proposed).
Conclusion
The proposed ordinance is a valid exercise of the City's police power. As such, it does not deprive
existing businesses of any vested rights to continue to operate free from reasonable municipal
regulations.
' The Rosemount City Code provides the following regarding Nonconforming Uses:
PURPOSE: It is the intent of this Ordinance to permit the continuation of structures, uses and signs
which legally exist on the effective date of this Ordinance but which do not conform to the provisions
herein set forth for the district within which said structure, use or sign is located... Nonconforming
structures, uses and signs shall not be altered or enlarged unless the change brings the structure, use or
sign into conformance with district requirements.
Section 13.1, 13.2 (A).
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