HomeMy WebLinkAbout8.b. Krech Landscaping r
CITY OF ROSEMOUNT
EXECUTIVE SUMMARY FOR ACTION
CITY COUNCIL MEETING DATE: October 21, 1997
AGENDA ITEM: Krech Landscaping AGENDA SECTION:
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PREPARED BY: Dan Rogness, Community Development Director AGENDA NO:
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ATTACHMENTS: Various Background Material APPROVED BY:
I provided the attached information to the council for its Committee of the Whole meeting. Attorney Charlie
LeFevere will be present at this meeting,however, in order to provide legal advice on this issue.
RECOMMENDED ACTION: MOTION to ... based u on le al advice and council direction I�
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COUNCIL ACTION:
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CHARTERED
CH.►RLES L. LEFE�'ERE
Attomcv at L,:iw
Direct Dial(6121 337-9215
October 15, 1997
Mr. Dan Rogness
Community Development Director
City of Rosemount
PO Bo;c 510
Rosemount MN SSU�B-OS 1Q
RE: Krec'h Lunclsc'a��in;
Dear Dan:
I have reviewed the materials w�hich you provided me on the history of the City's consideration
of the Krech Landscaping business. As I understand the nature of this business, it is primarily
a staging and storage area for a landscaping business. The activities on the site include the
storage of trees, shrubs, mulch, rock, and the like, together with various pieces of landscaping
equipment. Approximately 6 employees come to the site for purposes of picking up landscaping
equipment, and pre5umably delivery and pickup of landscaping materials. Additionally, snow
plows are stored on the site for a snowplowing business.
In Au�ust of 1y86, Jay and Therese Krech appeared before the Planning Commission for an
interpretation of whether the proposed business activities were lawful in an agriculturaT zone.
The Planning Commi�sion c;oncluded that the u5e was appropriate provided retail sales were
prohibited and screenin� wa� nrovided for ou±sicie storage, This interpretat?.on mav well have
been an incorrert interpretation of the ordinance at the time it was made. Nevertheless, the
Krechs pre�umably relied on this interpretation in e�tablishin�� their business on the site.
An ar�ument can be made that the staff and Planning Commission were not authorized to allow
a prohibited land use. However, it seem� to me that it i� fairly likely that a court would not
allow the City to enforce its ordinance and reyuire that the bu�iness be di�continued, under the
doctrine of estoppel. Under this do�trine, if a city makes representations with the understanding
and expectation that su�h repre�entation� will be relied on, and those repre,entations are relied
on by the person to whom they� are made, the �ity is "estoppeci", or prevented, from enforcing
its ordinanc:es.
However, even if the ordinanc:e in effect in 1�)xfi couid be interpreted to permit the use because
of the ab,en�e of sperific: definitions of permitted u�es, the ordinance wa� amended on December
�
Mr. Dan Rogness
October 15, 1997
Page 2
5, ly$y to provide definitions which do not appear to allow the cunent uses. Therefore, there '
would seem to be a good argument that even if the use were grandfathered in, or enforcement
of the ordinance up to December 5, 198�) were prevented by estoppel, the Krechs were not
authorized to expand their uses from those which were in e:cistence on December 5, 1989.
Therefore, the City could either prosecute the Krechs for a zoning violation in criminal court or
seek a civil injunction requirin�� the Krechs to return the busines� activities to the kind and ertent
of activities which were in existenre on December 5, 1989. If the council is prepared to expend
the money and �f:crt to COtTliT'icl�iCc a c;i�ii action, it would prvbably make sense to seek an order
requiring all business activities whirh are not permitted to be terminated and takin� the position
as a "fall back" position that even if the City i5 estopped from enforcing its ordinances as to
activities in place prior to December �> 1989, they do that the authority to secure an order of the
court requiring the busine�s activities to be returned to December 5, 19�9 levels.
At this time, I do not be(ieve that we have a �ood under5tanding of the nature and e.ctent of the
business activities which were in place as of December 5, 1989. Because the Krechs have
refused to meet with us to di,rusti thi, matter, it may be that the only way we can acquire this
information is by commencins� a civil action and seeking the information through eivil discovery.
If it i� found during di�rovery that the current activities on the site were all in existence in 1989,
the City may wish to reevaluate whether to pur5ue the lawsuit further. On the other hand, if it
is determined that the busines5 activity has been �ub5tantially expanded since 1989, there would
be a rea�onable chance of�ecurin�_ a �ourt order rec�uiring the business to be scaled back to 1989
levels. In any case, it is possible that if the snowplowin� business was never approved by the
Plannin� Commission and ha� never been a permitted use on the site, we would at least be
successful in reyuirin� that part of the business to be discontinued.
Pleatie let me know if you have any further c�ue�tion� on this matter.
very� r���iy� y-ou�s,
�c�.`.
Charies L. LeFevere
CLL:�m
Chain of Events --- Krech Landscaping Issue --- Rosemount, NIN
1. September, 1996. Dan Ro�ness, Rosemount Community Development Director,
received a verbal complaint &om a resident that lives near Jay and Therese Krech at
12050 Dodd Blvd. The complaint related to the extent of business operations being
undertaken at the above residence location.
2. October 4, 1996. Dan Rogness sent a letter to the Krech's with information about the
zoning definition of"commercial greenhouse and landscape nursery", which is a
permitted use in the corresponding Agricultural (AG) District. [See Exhibit A]
3. October, 1996. Therese Krech responds to the October 4 letter by providing a copy of
the Rosemount Planning Commission minutes dated August 19, 1986 to Rick Fearson,
City Planner. She contended that these minutes prove the landscaping business is a
permitted use at their residence. [See E�chibit B]
4. November, 1996--Nlav, 1997. Dan Rogness received additional requests from the
nearby resident to "do something" about the Krech business. Further research revealed
that two other similar issues had been dealt with by the planning commission,including �
the Linkert proposal on 17, 1953 and the Sachter proposal on October 24, 1989. I
5. Apri19, 1997. Dan Ro�ness sent a second letter to the Krech's with a second opinion '
about the matter, includina a"home occupation" interpretation. [See Exhibit C] ',
6. Apri120, 1997. Dan Rogness receives a letter and corresponding petition from seven
surrounding property owners asking that the nuisance and violation of the Krech's
business operation stop immediately. [See Exhibit D]
7. Mav 29, 1997. Dan Rogness sends a letter to the Krech's stating that the City Council
will accept and discuss the above mentioned petition at the June 3 City Council meeting.
[See Erhibit E]
8. June 3. 1997. Therese Krech addresses the City Council regarding their intent to retain
an attorney for legal advice before any response is made to the City. [See Exhibit F]
9. June 20, 1997. Charles Mertensotto, legal representative of the Krech's, sends a letter to
Dan Rogness asking for a claimed violation by the City. [Exhibit G]
10. July 21, 1997. Charles LeFevere, Rosemount City Attorney, sends a letter to Mr.
Mertensotto asking to meet with them in order for city staff to obtain additional
information about Krech Landscaping. [See Exhibit H]
11. Julv 29, 1997. Mr. LeFevere calls :�Ir. Mertensottu to fo(lo�v-up on the previous letter
asking for a meeting. Mr. Mertensotto refuses to meet on this matter, and further contents
that the city is only harassing his client.
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Chain of Events --- Krech Landscaping
Page 2
Summarv of related Plannin� Commission and Citv Council meetinQs:
l. The Rosemount Planning Commission reviewed a request from Jay and Therese Krech on
August 19, 1986 to operate a family landscape,�lawncare business on Agricultural
property. The Plannin�Commission was interpreting whether this was a permitted use in
the A�ricultural zone. A motion was carried by the Pianning Commission to approve
their request for a landscape business with retail sales prohibited and appropriate
screening required for outside storage. [See Exhibit BJ
2. The decision of the Planning Commission on Au�ust 19, 1986 referred to a similar
interpretation that had been made earlier by the Rosemount Planning Commission. On
March 17, 1983, the PlanninQ Commission revie�ved a request by Don Linkert for a
landscape business located at 120th Street and TH#3 in the Ajricultural District. A
motion was approved by the Planning Commission to interpret landscaping business with
no retail sales as a permitted use in the A�ricultural District. (See EYhibit I]
3. The Planning Commission met on October 10, 1989,to discuss an upcoming request
from Ray Sachter to develop a landscape nursery within the Agricultural District. Staff
was concerned that there was no clear understanding of what associated retail sales may
be allowed as a component of that landscaping use. The Sachters told the Planning
Commission that their proposal included less than 10% of the total square footage of
space to be designated for sale of related products other than plants grown on the site.
The Commission directed Staff to notify residents in the area of the Sachter proposaL ,
[See Exhibit J] ,
4. The Planning Commission met on October 24, 1989,to review a request from Ray and !,
Sanford Sachter regardin� site plan approval for their landscape nursery on a 10 acre �i
parcel at the intersection of 120th St. & TH #3. Staff interpreted this as a legal use in the '
Agricultural District (Landscape Nursery and Commercial Greenhouse) with 90% of the
retail sales consisting of products grown on site. There was testimony from surrounding
property owners, including the Krech's, Gloria Linkert,and Dr. Kurt Hanson, all voicing
objections to the retail use on the property. The retail commercial use in the Agricultural
nsi tent with revious Plannina Commission actions. City
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District as
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� Q a rovals for landsca in
� e revious �
Planner Wozniak testified at that meetin that th p pp P
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, o erations were secondary to the principal use of the property as a residence, and
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therefore, defined as home occupations. In fact, a transcript from this meeting shows
that a Plannin� Commissioner clarified, "neighbors are being allowed to run landscape
businesses and install lanciscape designs because they live there and that is a home
occupation." Furthermore, the previous request for sales did not involve sale of materials
grown on the site. The Planning Commission voted unanimously to deny the Rose Cliff
Nursery site plan by the Sachters and asked that Wozniak develop new definitions in the
zoning ordinance for these uses. [See Exhibits K and LJ
f
Chain of Events--- Krec6 Landscaping
Page 3
5. The City Council approved an amendment to the Zoning Regulations on December 5,
1989 by adding definitions for"Agricultural Stand", "Commercial Greenhouse" and
"Landscape Nursery", which in�eneral, allow sales at wholesale to retailers and jobbers
with no exterior stora�e and accessory sales. [See Exhibit M]
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September 8, 1997
Mr. Charlie LeFevere, Attorney
Kennedy & Graven '�,
470 Piilsbury Center '
200 S. Sixth Street
Minneapolis, MN 5�402
RE: Krech Landscaping
Dear Charlie:
You asked me to provide you additional information regarding this issue as follow-s:
1. I have been unable to determine when their business stopped operations within the City
of West St. Paul. The minutes (and corresponding staff report)from the Au�ust 19, 1986
Planning Commission meeting refer to their Rosemount property as"supplement" their
present business location in West St. Paul. On June 20, 1997 Mr. Charles Mertensotto
wrote you that the Rosemount property�vas purchased for the purpose of"relocating their
landscaping business from `Vest St. Paul to a more open and rural area". Please advise
me on any method you know that may determine the date of their exit from that city.
2. The city's staff report for the August 19, 1986 Planning Commission was found after
sending you the previous information (see Exhibit A-1). It states that this business "is not
a home occupation, because there will be occasional employee pick-up and drop-off at
the site".
3. The zoning ordinance in existing at the time of their requesf in 1986 included the
following three permitted uses in the A�ricultural (AG)District that may have pertained
to this use: (a) commercial greenhouses and tree nurseries; (b) stands for the sale of
a�ricultural products provided said products are at least in part raised on the premises;
and (c) home occupations. Ho«�ever, no definition existed in the ordinance for any of
these uses except home occupations.
4. On September 19, 1989 a new zoning ordinance (Ordinance B) was adopted by the City
Council that included "Commercial greenhouses and landscape nurseries" as a permitted
use in the A�ricultural (AG) District. A�ain, no definition existed for this use. A new
Section 4.16 was also added for"Home Occupations".
Charlie LeFevere
September 8, 1997
Page 2
5. On December 5, 1989 the City Council approved new definitions in the zonin�ordinance
for"A�ricultural Stand","Commercial Greenhouse"and"Landscape Nursery" (see
Exhibit M). This was a result of further discussion of landscape nurseries operations, and
more specifically from the Sachter(Rose Cliff Nursery) proposal in October of 1989.
6. The current 1994 edition of Ordinance B retains the permitted uses and corresponding
definitions from 1989.
7. Staff's recent observations of the Krech site sho�v that approximately six off-site
employees work in Rosemount. The operations include the storage of a wide varietv of
landscaping materials ... trees, shrubs, mulch, rock, etc. It appears that the operation is
not retail with on-site sales to the public, but rather,more of a job shop whereby cre«•s
are sent out to complete landscaping projects. Some pictures are currently bein�
developed that will show the Rosemount site during this summer.
Please contact me after reviewing this information so that I can schedule this as an a�enda item
with the City CounciL
Sincerely,
�
Dan Rogness
Community Develo ent Dire tor
cc: Thomas Burt, City Administrator
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P!AVNING COMMISSION
T0: PLANNING CON9�IISSION
FROM: DEAN JOHNSON, PLANNING DIRECTOR ��� �—" '
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DATE: AUGUST 15, 1986
SUBJ: AUGUST 19, 1986 REGULAR MEEfING REYIEWS '
4a. WM. JACOBSON & ASSOC. - TOWNHOUSE SITE PLAN/PLAT
Enclosed are copies of a site plan and subdivision sketch for a four-lot, 64-unit ,
rental townhouse development. A similar project by the same developer was ;
proposed in South Rose Park. This project replaces the earlier proposal.
This site is included in the urban service ar2a and is designated high density I
r2sidential in the guide plan. Subject to detailed utility plans and formal �I
platting, the first phase could go ahead with a detailed site plan review. �i
The developer is reques�ing an im mediate go ahead on phase 1 (16 units on Lot 1}.
I have received a rezoning petition and application for subdivision. I think
we're in a position to review plans and allow a building start while the plat�ing
process takes place. I see no particular issues with this site.
I would recommend approval of the concept for townhouses subject to rezoning and
platting, and further reco�nmend the City Council set a hearing date for the
rezoning. The area pr000sed for rezoning would include the vacant area between
this project and the Section 8 project to the east.
We will receive detailed plans for the first phase and a preliminary plat prior
to the September 2, 1986 Regular Meeting. No further action is required at this
time.
4b. EVENSON FIRST AODITION - FINAL PLAT
Enclosed are copies of tne Evenson First Addition final plat. A1T requirements
of preliminary p?at approUal have been met, except receipt of a drainage easement
across the southern 240 fe�t of Lot 3. I would r2commend approval of the plat
with this contingency. Copies of the hardshells may be available for signature
at the meeting. There is nc reason why the plat shouldn't be signed.
5a. JAY AND THERESE KRECH - LAND USE INTERPRETATION
Mr. & Mrs. Krech have made an offer on property located at 12050 Dodd Boulevard.
There is a single family home and a 40'x 60' pole building on the property. The
site is zoned Agricultur�.
The Krechs operate a landscape/lawn care business out of West St. Paul. They
propose to keep the present business location but wish to supplement some of the
equipment storage nee�s at the Rosemount site. This use is not a home
occupation, because there will be occasional employee pick-up and drop-off at the
site. There will be no retail sales on the site. 7he Krechs also agreed to
erecting a privacy fence nGar the metal building, if outside storage were ever
required.
REGULAR MEETING REVIEWS
August 19, 1986
. Page Two
In March, 1983, the Planning Com mission reviewed a similar request by Don
Linkert. His proposal involved a lot division and construction of a residence
and storage building for the same business. The interpretation was m ade that the
use was permitted in the Agriculture district. Given the situation is nearly
identical and a precedent has been established, I am inclined to recom mend
approval of this request. I would suggest that any approval specifically
prohibit any retail sales on the property and require appropriate screening for
any outside storage in the future.
6. AMERICAN LE6ION CLUB - VARIANCE TO MINIMUM SETBACK & PARKING REQUIREMENTS
You previously received copies of the site plan for a proposed addition to the
American Legion Club. The 37'x 95' addition consists of post meeting rooms,
storage and new banquet seating. The building is prop�sed to be block, matching
the existing building. Tne north and west vestibules are also proposed to be
renovated. ' The plans furiher illustrate new fascia on the westerly and north2rly
walls; however, I understand tnere is no guarantee that tnis will be done.
The site plan indicates the addition is to be located near the east prop2rty line I�I
and will maintain the existing setback on the south. The plan also in�icates ,
demolition and clearanc2 of the north2rnmos� residence on th� block. An
additional 26 off-street parking spaces will be constructed on this parcel.
The proposal is significantly scaled down from the plan submitted two years ago.
Two variances considered then are still necessary at this time: building setback
on the east and off-street par'.<ing. The building setback on Burnley w as approved
two years ago, but the parking variance was denied.
While setbacks in the C-2 Districts are not required, another provision regarding
existing setbacks is triggered. The average existing structure setback on
Burnley is approximately 20 feet. I have no problem with the proposed setback.
It clearly is consistent witn the C-2 Oistrict requirem2nts and other setbacks in
the district. As was the case two years ago, I would recommend approval of the
building setback variance.
Based upon 100 seats in tn� lounge/restaurant and 225 capacity for banquet
seating, the maximum off-s�reet parking required is 108 stalls. There are 74
spaces shown, including 26 new spaces on the northernmost lot. The post
commander has indicated a com mitment to acquire the r�maining lot when the owners
are willing. Ed McMenomy, Legion member and counsel, confirmed that he has met
with the owners over the past t�+�o years and they are interested in selling in the
near future. When this parcel is cleared, another 26 parking spaces can be
provide'd. Total off-street parking on the block in the future can reach a
minimum of 100 spaces. Wi:h r?striping the number could conceivably increase.
While the ordinance does not recognize on-street parking, there may be an
interpretation requir�d in this case. Curbside parking is typically not
considered as satisfying requir2ments, because spaces are within public right-of-
way and can not be designa�ed or reserved. In addition, typical storefronts only
abut 1-3 spaces; and, wi �h multiple businesses on a given block, "dosignating°
spaces would inhibit peak patronage of different businesses at different times of
the day.
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C1TY OF ROSE�tOUNT �
ORDIN�'YCE NO. B-1
AN ORDINANCE A,�IENDING ORDIN,�►IYCE B - CITY OF ROSEMOUNT ZONiNG �
ORDINANCE CONCER�I�G SiTE PLAN APPEAL AND DEF1NiTiO�S ;
'1'lll�. ('(TY ('OUN('ll. O(' 'I'ilt: C'ftY OF RUS�Mt)t1N'T', titiNNESOTA ORDn1NS AS
I OI.f.UWS: �
SEC"f10N t. Section 1�3.4, Subparagraph A(1) of Ordinance B - City of Rosemount
� � Zoning Ordinance is amended to read;
No building permit shall be issued until a si[e pian has been prepared in
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accordance with the pro�isions of this ordinance and approved by the Planning
. x Commission. The applicant, the zoning administrator, a member o( thc City
h�� Council, or any person owring property or residing within 350 feet of the property
: �� for which site approval is sought may appeal the Planning Commission decision to
=��. the City Council. An appeal must be Filed with the City Gerk within ten (10)
days after the Plannino Commission decision.
���;�µ.
. �K;y.�;�'' SECTION 2. Section 3.2 of Ordinance B - Citv of Rosemount ZoninQ Ordinance is
�.:,t;. amended by adding the following deGnitions: '
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";,�; A�ricultural Stand A booth or stall located on a farm from u•hich farm products 'i
raised exclusicely on tha[ Farm are sold to the genera] public.
Commercial Greenhouse A structnre in which �•egetables and flo«�ers are gro�i-n
indoors from seed exclusi�•ely for sales at wholesa3e [o retailers and jobbers.
Exterior stora�e is prohihited. Accessory sales are prohibited.
'�"� Landscane Nurser� Land or greenhouses used to gro�� [rom seed or seedlings
- �.•'- Aowers, trees and shrubs exclusi�•ely for sale at w�holesale to contractors, jobbers
and retailers. Flow•ers, trees and shrubs grown outdoors must be grown bare root
'=�''� in the ground and may not be grown abo�•e ground in pian[ers and the like. ;
' �,`::. Exterior storage is prohibited. Accessory sales are prohibited.
�:;:. SECTION 3. This ordinance shall be effecti�•e immediately upon its passaee and
- pubiica[ion.
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ADOPTED this Sth day of December, 1989.
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Administralor/Clcrk
Puhlished in the Dakota Countv Tribune thi���day of ' p -�'/v , 19s9.
'Republished in the Dak�ta Cnunr: Trihune this � d�v of 1`�-
'(7hn is thc o��nal Ord�nancc E3-I adoptcd by Lounc�l on Dcccmbcr 5. 1�89 ho�c.cr thc g copy was signcd and
published. Th�s pubhc�hon corcccts a typograph�cal crror �n >FCC(()� 1.1