HomeMy WebLinkAbout2.f. Krech Landscape �
y CITY OF ROSEMOUNT
EXECUTIVE SUMMARY FOR DISCUSSION
COMMITTEE OF THE WHOLE
DATE: October 20, 1997
AGENDA ITEM: Krech Landscaping AGENDA NO.
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PREPARED BY: Dan Rogness,Community Development
Director
ATTACHMENTS: Various Background Material
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I have provided much background information to City Attorney Charlie LeFevere regarding this issue. He will
not be able to attend this meeting, so staff has scheduled it for general discussion with the committee. It is also
scheduled for the regular council meeting on Tuesday, October 21, at which time Attorney LeFevere will be
present. We are at the point of deciding whether to pursue legal action or try to obtain more information. The
key issue appears to be whether or not the Krech Landscaping operation expanded significantly since 1989.
RECOMMENDED ACTION NOTES:
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CHARTERED
CHARLFS L. LEFEVERE
Attomey at L►w
Direct Dia!(612)337-9215
October 15, 1997
Mr. Dan Rogness
Community Development Director
City of Rosemount
PO Box 510
Rosemount MN 55O68-0510
RE: Kf•ech Larzclscapirtg
Dear Dan:
I have reviewed the materials which you provided me on the history of the City's consideration
of the Krech Landscaping business. Ati 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 presumably delivery and pickup of landscaping materials. Additionally, snow
plows are stored on the site for a snowplowing business.
In August of 1986, Jay and Therese Krech appeared before the Planning Commission for an
interpretation of whether the proposed business activities were lawful in an agricultural zone.
The Planning Commitision concluded that the use was appropriate provided retail sales were
prohibited and screen�n� wa� provided f�r outside storage: This interpretati.on may w�ll have
been an inconect interpretation of the ordinance at the time it was made. Nevertheless, the
Krech� presumably relied on this interpretation in establishing 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 seems to me that it is fairly likely that a court would not
allow the City to enforce its ordinance and rec�uire that the business be discontinued, under the
doctrine of etitoppel. Under this doctrine, if a city makes representations with the understanding
and expectation that suc:h repre�entations will be re(ied on, and those representations are relied
on by the person to whom they are made, the city is "estopped", or prevented, from enforcing
its ordinances.
However, even if the ordinance in effect in l��xl, could be interpreted to permit the use because
of the absence of,perific definitions of permitted uses, the ordinance wati amended on December
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Mr. Dan Rogness
October 15, 1997
Page 2
5, 19$y to provide definitions which do not appear to allow the current 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, 1989 were prevented by estoppel, the Krechs were not
authorized to expand their uses from those which were in existence on December 5, 1989.
Therefore, the City could either prosecute the Krechs for a zoning violation in criminal court or
seek a civil injunction requiring the Krechs to return the business activities to the kind and extent
of activities which were in existence on December 5, 1989. If the council is prepared to expend
the money and �ffcrt to :.omtner,c� a civil ac�ion, it would probably make sense to seek an order
requiring all business activities which are not permitted to be terminated and taking the position
as a "fall back" position that even if the City is estopped from enforcing its ordinances as to
activities in place prior to December 5> 1989, they do that the authority to secure an order of the
court requiring the busine5s activities to be returned to December 5, 1989 levels.
At this time, I do not believe that we have a good understanding of the nature and extent of the
business activities which were in place as of December 5, 1989, Because the Krechs have
refused to meet with us to disrusti this matter, it may be that the only way we can acquire this
information is by commencing a civil action and seeking the information through civil discovery.
If it i� found during discovery that the current activities on the site were all in existence in 1989,
the City may wish to reevaluate whether to pursue the lawsuit further. On the other hand, if it
i� deterrnined that the business activity ha� been substantially expanded since 1989, there would
be a rea5onable chance of 5e�uring a court order requiring the business to be scaled back to 1989
levels. In any ra5e, it is poslible that if the snowplowing business was never approved by the
Planning Commission and has never been a permitted use on the site, we would at least be
succestiful in reyuiring that part of the business to be discontinued.
Please let me know if you have any further questions on thi5 matter.
Very truly- you;s,
�c���
Charles L. LeFevere
CLL:cm
Chain of Events --- Krech Landscaping Issue --- Rosemount, MN
1. September, 1996. Dan Rogness, Rosemount Community Development Director,
received a verbal complaint from 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 Pearson,
City Planner. She contended that these minutes prove the landscaping business is a
permitted use at their residence. [See Exhibit B]
4. November. 1996--May, 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, 1983 and the Sachter proposal on October 24, 1989.
5. April 9. 1997. Dan Rogness sent a second letter to the Krech's with a second opinion
about the matter, including a"home occupation"interpretation. [See Exhibit C]
6. April 20, 1997. Dan Rogness receives a letter and corresponding petition from seven
surrounding property owners asking that the nuisance and violatian of the Krech's
business operation stop immediately. [See Exhibit D]
7. Ma,y 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 Exhibit E]
8. June 3, 1997. Therese Krech addresses the City Council regarding their intent to retain
an attorney far 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. Julv 21, 1997. Charles LeFevere, Rosemount City Attorney, sends a letter to Mr.
Mertensotto asking to meet with them in order for city staffto obtain additional
information about Krech Landscaping. [See Exhibit H] I
1 l. July 29, 1997. Mr. LeFevere calls Mr. Mertensotto to follow-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 City Council meetings• j
1. The Rosemount Planning Commission reviewed a request from Jay and Therese Krech on I
August 19, 1986 to operate a family landscape/lawncare business on Agricultural
property. The Planning Commission was interpreting whether this was a permitted use in
the Agricultural zone. A motion was carried by the Planning Commission to approve
their request for a landscape business with retail sales prohibited and appropriate
screening required for outside stora�e. [See Exhibit B]
2. The decision of the Planning Commission on August 19, 1986 referred to a similar
interpretation that had been made earlier by the Rosemount Planning Commission. On
March 17, 1983, the Planning Commission reviewed a request by Don Linkert for a
landscape business located at 120th Street and TH#3 in the Agricultural District. A
motion was approved by the Planning Commission to interpret landscaping business with
no retail sales as a permitted use in the Agricultural District. [See Exhibit IJ
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 foota�e 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 regarding site plan approval for their landscape nursery on a 10 acre
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 A�ricultural
District was viewed as inconsistent with previous Planning Commission actions. City
Planner Wozniak testified at that meeting that the previous approvals for landscaping
operations were secondary to the principal use of the property as a residence, and
therefore, defined as home occupations. In fact, a transcript from this rneeting shows
that a Planning Commissioner clarified, "neighbors are being allowed to run landscape
businesses and install landscape 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 L]
Chain of Events-- Krech 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 aeneral, allow sales at wholesale to retailers and jobbers
with no exterior storage and accessory sales. [See Exhibit M]
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September 8, 1997
Mr. Charlie LeFevere, Attorney
Kennedy & Graven
470 Pillsbury Center
200 S. Sixth Street
Minneapolis, N1N 55402
RE: Krech Landscaping
Dear Charlie:
You asked me to provide you additional information regarding this issue as follows:
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 August 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 was purchased for the purpose of"relocating their
landscaping business from West 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 request in 1986 included the
following three permitted uses in the Agricultural (AG) District that may have pertained
to this use: (a) commercial greenhouses and tree nurseries; (b) stands for the sale of
agricultural products provided said products are at least in part raised on the premises;
and (c) home occupations. However, no definition existed in the ordinance for any af
these uses except home occupations.
4. On September 19, 1989 a new zoning ordinanee (Ordinance B) was adopted by the City
Council that included "Commercial greenhouses and landscape nurseries" as a permitted
use in the Agricultural (AG) District. Again, 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 zoning ordinance
for"Agricultural 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 show that approximately six off-site
employees work in Rosemount. The operations include the storage of a wide variety 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,mare of a job shop whereby crews
are sent out to complete landscaping projects. Some pictures are currently being
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 agenda item
with the City CounciL
Sincerely,
Dan Rogness
Community Develo ent Dire tor
cc: Thomas Burt, City Administrator
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PLANNING COMMISSION
T0: PLANNING COt+9NISSION
FROM: DEAN JOHNSON, PLANNING DIRECTOR ��� �-' '
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DATE: AUGUST 15, 1986
SUBJ: AUGUST 19, 1986 REGULAR MEETING REYIEWS
4a. WM. JACOBSON & ASSOC. - TOWNHOUSE SITE PLAN/PI.AT
Enclosed are copies of a site plan and subdivision slcetch 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 area and is designated high density
residential in the guide plan. Subject to detailed utility plans and formal
platting, the first phase could go ahead with a detailed site plan review.
The developer is requesting an immediate go ahead on phase l (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 platting
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 recommend the City Council set a hearing date for the
rezoning. The area proposed 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. EYENSON FIRST ADDITION - FINAL PLAT
Enclosed are copies of the Evenson First Addition final plat. All requirements
of preliminary p?at approval have been met, except receipt of a drainage easement
across the southern 240 feet of Lot 3. I would recommend approval of the plat
with this contingency. Copies of the hardshells may be available for signature
at the meeting. There is no 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 an the property. The
site is zoned Agriculture.
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 needs 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. The Krechs also agreed to
erecting a privacy fence near the metal building, if outside storage were ever
required.
, ` REGULAR MEETING REVIEWS
August 19, 1986
� Page Two
In March, 1983, the Planning Commission 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 f or
any outside storage in the future.
6. AMERICAN LE6ION CLUB - VAf2IANCE 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 mee�ing roo ms,
storage and new banquet seating. The building is proposed to be block, matching
the existing building. The north and west vestibules are also proposed to be
renovated. The plans further illustrate new fascia on the westerly and northerly
walls; however, I understand there is no guarantee that tnis will be done.
The site plan indicates the addition is to be located near the east prop2rty line
and will maintain the existing setback on the south. The plan also indicates
demolition and clearance of the northernmost residence on the 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 timec building setback
on the east and off-street parking. 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 with the C-2 District requirements 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 tne lounge/restaurant and 225 capacity for banquet
seating, the maximum off-street parking required is 108 stalls. There are 74
spaces shown, including 26 new spaces on the northernmost lot. The post
commander has indicated a corn mitment to acquire the remaining lot when the owners
are willing. Ed McMenomy, Legion member and counsel, confirmed that he has met
with the owners over the past two years and they are interested in selling in the
near future. When this parcel is cleared, another 26 parking spaces can be
provided. Total off-street parking on the block in the future can reach a
minimum of 100 spaces. With restriping the nUmber could conceivably increase.
While the ordinance does not recognize on-street parking, there may be an
interpretation required in this case. Curbside parking is typically not
considered as satisfying requirements, because spaces are within public right-of-
way and can not be designated or reserved. In addition, typical storefronts only �
abut 1-3 spaces; and, with multiple businesses on a given block, "designating"
spaces would inhibit peak patronage of different businesses at different times of
the day.
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C1TY OF ROSEh10UNT i
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ORDINANCE NO. B-1 !
AN ORDINANCE ANtENDING ORDINA.t�ICE B - CITY OF ROSEMOUNT ZONING �
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ORDINANCE CONCERNING S1TE PLAN APPEAL AND DEFINITIONS '
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'I'lll�. ('(TY ('OUN('IL Of'T'lif: ('I"1'Y t)F ROS�MOlJN'T, MINNESOTn ORDAINS AS '
1�OI.I.UWS: i
SECTION 1. Section 14.4, Subparagraph A(1} o[ Ordinance B - City o[ Rosemount
� �� � Zoning Ordinance is amended to read:
No buitding permit shall be issued until a si[e plan has been prepared in
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accordance with the procisions of this ordinance and approved by the Planning
� Commission. The apPlicant, the zoning administrator, a member ot thc City
,;�� Council, or any person owning property or residing within 350 feet of the property
' �+z for which site approval is sought may appeal the Planning Commission decision to
�;'_ the City Council. An appeal must be filed with the City Clerk within ten (10)
����
days a[ter the Planning Commission decision.
�� SECTION 2. Section 3.2 of Ordinance B - City of Rosemount Zoning Ordinance is
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:34;�. amended by adding lhe following deGnitions:
�=.-,
`"�=; Agricultural Stand A booth or stall located on a farm from which farm products
raised exclusi��e]y on tha[ farm are sold to the general public.
Commercial Greenhouse A struc[vre in �vhich cegetables and flowers are grown
indoors from seed exclusicely Ior sates at wholesale to retailers and jobbers.
Exterior storage is prohibited. Accessory sales are prohibited.
�� Landscaoe Nurserv Land or greenhouses used to grow Gom seed or seedlings
',;�,
• :�:�- tlowers, trees and shrubs exclusively for sale at wholesale to contractors, jobbers
- and retailers. Flowers, trees and shrubs grown outdoors must be grown bare root
in [he ground and may not be grown above ground in planters and the like. ,
3�. E�terior storage is prohibited. Accessory sates are prohibited.
� �;a�:. SECTiON 3. This ordinance shall be e[fectic�e immediately upon its passage and �
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publication.
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ADOPTED this Sth day of December, 1989. '
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` t CIT1' OR ROSEMOUNT
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x= � Ro an Hoke, Mayor
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Administrator/Clerk
Puhli�hed in the Dakota Countv Tribune lhi.ti��day of—=�z�/�� , 1939.
"Republished in [he Dakota C�untv Trihune this � dav of 1990.
'(Tltis is thc onginal Ordinancc B-I adoptcd by Counc�l on Dcccmbcr 5. 1989: hoHc�cr thc g copy was signcd and
published. This publicahon correns a npographical error in SF.CCIO\ I.)
SUMMARY OF KRECH LANDSCAPING SITUATION
Rosemount, Minnesota �
1. A landscaping business was permitted by the Planning Commission in
1986. The commission was asked to make an interpretation of the zoning
ordinance, which listed "commercial greenhouses and tree nurseries" as a
permitted use without a corresponding definition.
2. A staff report stated that this proposed use was not a home occupation
since "there will be occasional employee pick-up and drop-off at the site".
The minutes of the 1986 Planning Commission meeting states that the
proposed business would "supplement their present West St. Paul
business for equipment storage, periodic maintenance, and storage of sod
and plant materials".
3. Conditions of approval by the Planning Commission included: (a)
prohibiting retail sales from the property, and (b) screening any outside
storage in the future. No zoning permit was necessary that may have
further explained parameters of business operations.
4. The City Council approved an ordinance on December 5, 1989 that
amended the zoning code to include three definitions for: (a) agricultural
stand, (b) commercial greenhouse, and (c) landscape nursery. The new
definition of landscape nursery clearly allows uses that are agricultural in
nature ... "land or greenhouses used to grow from seed or seedlings ...
must be grown bare root in the ground ... exterior storage is prohibited ...
accessory sales are prohibited".
5. Assuming the Krech business was a permitted use in 1986, the zoning
ordinance amendment to define a Landscape Nursery in 1989 does not
allow the current use (a landscaping contractor, including design and
installation). Therefore, the Krechs were not authorized to expand their
business se beyond December, 1989.
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6. Legal acti � n can include a civil injunction requiring the Krechs to return the
business ctivities to the kind and extent of activities which were in
existence n December 5, 1989. However, this will require a complete
search for all evidence that will establish that level of opera#ion ... photos,
testimoni s, records, etc. The goal of this action is to get the business
back to w�at it was permitted to be, a "family landscape/lawn care
business"with the primary use being residential.