6.1. SR 07-18-2011~~~~
Elk .~-;
River
REQUEST FOR ACTION
TO ITEM NUMBER
Ci Council 6.1.
AGENDA SECTION MEETING DATE PREPARED BY
Administration ul 18, 2011 Peter Beck, Ci Attorne
ITEM DESCRIPTION REVIEWED B~/
Consider Resolution Regarding the Conditional Use Permit for
Wapiti Park Campground REVIEWED BY
ACTION REQUESTED
Consider resolution regarding the Conditional Use Permit for Wapiti Park.
BACKGROUND/DISCUSSION
On June 20, 2011, the City Council conducted a public hearing to receive testimony and evidence
regarding the possible revocation of the Conditional Use Permit for Wapiti Campground. The public
hearing was closed on June 20, 2011, and city staff was directed to prepare a resolution regarding
revocation of the Conditional Use Permit for City Council consideration at its meeting of June 27, 2011.
On June 27, 2011, the City Council received a draft resolution regarding the Conditional Use Permit fox
Wapiti Park Campground. At that time, the Council continued action on the resolution to July 18, 2011,
and directed that the record in this matter remain open for the submission of written materials in support
or opposition to the resolution until July 11, 2011.
On July 12, 2011, a written memorandum was received by Wapiti's attorneys and is attached. This
memorandum makes a number of legal arguments regarding the Conditional Use Permit, but includes no
new facts regarding the Conditional Use Permit or compliance with the terms of the Conditional Use
Permit. The memorandum does not raise any issues which staff feels require revisions to the earlier staff
reports or the proposed resolution.
In addition to this written response, staff received a phone call and a visit from a former resident of
Wapiti Park. A summary of these conversations is included in the attached memorandum from staff.
Attached is an updated resolution regarding the CUP for Wapiti Park for Council consideration.
ATTACHMENTS
^ Resolution regarding the Conditional Use Permit for Wapiti Park Campground
^ Memorandum submitted by Wapiti's attorney on July 12, 2011
^ Memorandum from staff dated July 14, 2011
Action Motion by Second by Vote
Follow Up
N:\Depaztments\Community Development\Planning\Case Files\CUP\CU 10-16 Wapiti Pazk IUP\Wapid Conditional Use Permit revocation SR to
CC 7-18-il.docx
Resolution No. 11-
City Council
City of Elk River
A Resolution of the City of Elk River Regarding the Conditional Use Permit for
Wapiti Park Campground
Findings of Fact
1. Wapiti Park Campground has been located at 18746 Troy Street within the City of
Elk River since the merger of the old City of Elk River and Elk River Township in 1978.
2. In 1983, Wapiti Park Campground was rezoned from A-1/Agricultural to R-
lb/Single Family Residential, and the Elk River Zoning Ordinance was amended to allow
campgrounds in the R-lb zoning district as a conditional use.
3. In 1984 the owner, Roger White requested a Conditional Use Permit under the
City's Zoning Ordinance. Following public hearings, at which Mr. White and his
attorney participated, the City Council on May 7, 1984 issued a Conditional Use Permit
for Wapiti Park Campground, subject to nine conditions. During the proceedings before
the City Council, Mr. White stated that the purpose of the Campground was "to provide a
place for people who travel while they work and that they are in no way promoting
permanent residents." Extensive discussion occurred in which all parties agreed that
permanent residents were not to be a part of the Campground operation and the City
Council adopted State Regulations to that end which limits vehicles present to be for
temporary occupancy. The Campground has been operated by the owner under the
Conditional Use Permit since its issuance, with no challenge to its efficacy or conditions
until this proceeding.
4. Between 1984 and 1988 the Elk River Zoning Ordinance was amended to remove
campgrounds as a Conditional Use in the R-lb zoning district and Wapiti Park
Campground became a legal non-conforming use subject to the 1984 Conditional Use
Permit and the owners continued to operate under the Conditional Use Permit.
5. In 1999, the Wapiti Park store building, operating under the non-conforming
Conditional Use Permit, burned and was completely destroyed. At that time, the Elk
River Zoning Ordinance did not allow the reconstruction of anon-conforming use
destroyed beyond 50%.
6. In 2000, Wapiti Park Campground requested a Conditional Use Permit to rebuild
the store building. Because conditional use permits could no longer be issued far
campground uses, the application was, with the applicant's consent, treated as an
application for an interim use permit. Because the owner anticipated that the
campground would be sold and developed within 10 years, the Interim Use Permit was
approved on April 17, 2000 for a ten (10) year period or until the property was sold,
whichever occurred first.
7. The 10 year Interim Use Permit approved on April 17, 2000 for the Wapiti Park
Campground store building expired on April 17, 2010.
8. Wapiti Park Campground Inc. ("Applicant") applied for a new Interim Use Permit
for the store building, for an additional 10 years, in June, 2010. Public hearings were
held on the application for an Interim Use Permit before the City Planning Commission
and the City Council. The Planning Commission and the City Council took testimony at
these hearings from the Applicant and all others wishing to testify.
9. On August 2, 2010 the Elk River City Council granted a 10 year Interim Use
Permit (IUP) for the Wapiti Park Campground store building, subject to a number of
conditions. One of the conditions was that the IUP would terminate on January 1, 2011,
unless certain conditions set forth in the resolution of approval were addressed.
10. On December 20, 2010, the Elk River City Council extended the IUP for the
Wapiti Park Campground store building to January 18, 2011, and directed City staff to
prepare a resolution for City Council consideration regarding the IUF.
11. On January 18, 2011 the IUP was extended to March 21, 2011.
12. On March 21, 2011, the attorney for Wapiti Park, due to illness, requested an
extension of the IUP, which the City Council granted to Apri14, 2011.
13. On Apri14, 2011, the IUP was extended to April 18, 201 1.
14. On April 18, 2011, the Elk River City Council adopted City Council Resolution
Number 11-17, finding that the Applicant had not complied with the conditions set forth
in the City Council's August 2, 2010 conditional approval of the new Interim Use Permit
for the store building, and that the Interim Use Permit for the Wapiti Park Campground
store building therefore expired on April 18, 2011. The City Council also directed City
staff to initiate revocation proceedings for the Wapiti Park Campground Conditional Use
Permit.
15. The Conditional Use Permit ("CUP") approved for Wapiti Park Campground in
May 1984 was subject to nine conditions. The conditions included a condition that
wheels remain on vehicles parked in the campground and a condition that the provisions
of Minnesota Statutes, Section 327.10 through 327.28, pertaining to recreational camping
areas and recreational camping vehicles, shall apply and be conditions within the City's
Conditional Use Permit.
16. Minnesota Statutes, Chapter 327, defines "Recreational camping area" as
including:
any area, whether privately or publicly owned, used on a daily, nightly, weekly or
longer basis for the accommodation of five or more tents or recreational camping
vehicles free of charge or for compensation...
17. "Recreational camping vehicle," is defined by Chapter 327 to include the
following:
(a) any vehicular, portable structure built on a chassis designed to be used as a
temporary dwelling for travel, recreational and vacation uses;
(b) any structure designed to be mounted on a truck chassis for use as a
temporary dwelling for travel, recreation, and vacation;
(c) any portable, temporary dwelling to be used for travel, recreation, and
vacation, constructed as an integral part of aself-propelled vehicle; and
(d) any folding structure, mounted on wheels and designed for travel,
recreation, and vacation use.
18. Chapter 327 provides that Recreational Camping Areas and Recreational
Camping Vehicles are for "temporary," "travel, recreation and vacation" uses.
19. Chapter 327 of Minnesota Statutes also regulates Manufactured Home Parks,
which allow the location of Manufactured Homes, which, in contrast to Recreational
Camping Vehicles, may be used for "dwellings" and are intended for permanent
occupancy. To operate a Manufactured Home Park a license from the State of Minnesota
is required. Wapiti Park is not licensed as a Manufactured Home Park.
20. Minnesota Statutes, Section 168.002, Sub. 27, defines "Recreational Vehicle" as
follows:
Subd. 27. Recreational vehicle.
(a) "Recreational vehicle" means travel trailers including those that telescope
or fold down, chassis-mounted campers, motor homes, tent trailers, and converted
buses that provide temporary human living quarters.
(b) "Recreational vehicle" is a vehicle that:
1. is not used as the residence of the owner or occupant;
2. is used while engaged in recreational or vacation activities; and
3. is either self-propelled or towed on the highways incidental to the
recreational or vacation activities.
21. The City Code in 1984 set forth as a required finding for approval of a
Conditional Use Permit that the use will not endanger, injure, or detrimentally affect the
public health, safety, morals, comfort, convenience, or general welfare of the
neighborhood or the City. That requirement for approval of a Conditional Use Permit
remains in the City Code today.
22. On August 17, 1998, the CUP was clarified, with the agreement of the owners of
Wapiti Park Campground, and the following rules were agreed on:
o storage sheds with 120 square feet of roof area or less will be allowed;
o breezeways or screened porches with a maximum of 120 square feet of roof area
will be allowed, provided they are constructed to be portable and are not
connected to the recreational vehicle;
o no wood burning appliances will be allowed within vehicles, breezeways, or
porches;
o an emergency plan to remove all structures and vehicles from the floodway upon
six hours notice would be submitted for approval;
o all structures that do not conform to these (1998) rules or that are dangerous
would be removed;
o a minimum 10 foot distance would be maintained between vehicles and/or
structures; and
o no licensed or inoperable vehicles would be allowed.
23. Staff investigations in recent months indicate that there are several storage sheds
which exceed the 120 square foot maximum and/or are within 10 feet of a recreational
vehicle or vehicle being used as a residence; that there are a number of screened porches
and other additions that exceed the 120 square feet in roof area maximum and/or are
connected to a vehicle; that there are several unlicensed vehicles and/or vehicles without
wheels within the campground; and that there has never been an emergency plan for
removal of the structures and vehicles submitted for approval.
24. On June 20, 2011 the Elk River City Council held a public hearing, upon
personally delivered notice to Wapiti Park Campground, Inc., to address whether Wapiti
Park Campground is in compliance with the conditions set forth in the CUP for the
Campground. On June 27, 2011, the Elk River City Council continued consideration of
revocation of the CUP for a decision on July 18, 2011, and directed that the record in the
matter be open for the submission of written materials until July 11, 2011. In addition to
the testimony taken, staff reports presented and other evidence received at and since the
June 20, 201 l hearing, all of the application materials, staff reports, testimony taken and
other evidence received in the course of the City Council's consideration of the IUP and
liquor licenses for the store building at the Campground were incorporated into and made
a part of the record in the revocation proceeding.
25. Based on this record, the City Council finds:
A. That Wapiti Park Campground is not in compliance and has violated the
conditions of its CUP for at least the following reasons, including:
o The provisions of Minnesota Statutes, Chapter 327.10 through 327.28
pertaining to recreational camping areas and recreational camping vehicles
are not being complied with.
o Vehicles and structures within the Campground are being used as the
residence of the owners or occupants.
o Residents have indicated in their testimony to the Planning Commission
and City Council, and to police officers taking reports, that they make
their residence at Wapiti Park Campground.
o A former resident has indicated to the City that the Campground has
mostly permanent residents, including residents who have lived at the
Campground for 10 or 15 years, or longer.
o Sherburne County Probation has reported that in the past five years 23
probationers have identified Wapiti Park as their permanent residence.
o The level of police calls for service and the types of calls for service to
Wapiti Park Campground are comparable to some apartment complexes in
the City, including frequent calls with respect to domestic abuse
complaints. This indicates that the Campground is serving permanent
residents, not recreational campers there for travel, recreation or vacation
uses.
o The owner has offered no evidence and does not refute that the
Campground is being used as a residence for some occupants.
o Sherburne County has confirmed that at least four motor vehicles at
Wapiti Park Campground are not licensed for travel on public roads.
o At least two of the vehicles at the Campground have permanent additions
attached to the vehicles (including one vehicle with two additions),
indicating that they are not intended for travel, recreation, and vacation.
These structures are also in violation of the State Building Code.
o Several vehicles have permanent skirting, which makes it impossible to
determine if the wheels have been removed. Removal of wheels violates a
specific condition of the Conditional Use Permit and indicates that the
vehicle is not intended for travel, recreation, or vacation uses
B. That Wapiti Park Campground is a threat to the public health, safety, morals,
comfort, convenience, and general welfare of the residents of the Campground,
the neighborhood and the City for at least the following reasons:
o The freestanding and attached structures at the campground are a public
safety concern both from a structural integrity standpoint and as a fire
hazard. City records do not show that any building permits have been
applied for or issued for these structures, nor that any inspections have
been called for or done.
o The integrity of the septic system serving the campground is a public
safety concern because the owners of the campground have refused to
have the septic system inspected by a licensed inspector to confirm that it
is functioning and in compliance with state standards. This is of particular
concern because of the proximity of the septic system to the Elk River and
the possibility of sewage flowing into the river.
o The large number and type of police calls to the Campground are a public
safety concern. Elk River Police Department records indicate that calls for
service include calls for assaults, including an assault on the campground
manager, fighting, domestic disturbances and assaults, public
intoxification and personal injuries.
C. That, based on the entire record before the City Council and the findings of fact set
forth herein, Wapiti Park Campground is not being operated in conformance with
Minnesota Statutes, Chapters 327 and 168, or the conditions of the Conditional Use
Permit, and is therefore an illegal use under both state law and the Conditional Use
Permit.
Record
The record in this matter shall include all of the application materials, staff
reports, testimony taken and evidence received by the Planning Commission and the City
Council in connection with the June, 2010 application of Wapiti Park Campground for a
10 year Interim Use Permit, the applications of Wapiti Park Campground, Inc. for liquor
licenses, and the revocation proceedings which are the subject of this resolution,
including the staff reports and all attachments thereto, all other written materials
submitted to the Planning Commission and City Council, including without limitation,
minutes of the City Council and Planning Commission in connection with the
Campground and all staff presentations and other testimony taken at the public hearings
and meetings, all of which is incorporated into and made a part of the findings of fact and
this resolution.
Decision
Based on the Findings of Fact set forth herein, and the entire record in this matter,
the City Council of the City of Elk River determines that Wapiti Park Campground has
not complied with and is in violation of the conditions of the Conditional Use Permit for
the Campground, known as Wapiti Park Campground located at 18746 Troy Street, and
that the Campground is an illegal use under Minn. Stat Chpt. 327, and therefore revokes
the Conditional Use Permit for Wapiti Park Campground. Revocation of the Conditional
Use Permit shall be effective on December 31, 2011, unless operation of the Campground
comes into compliance with the Conditional Use Permit and Minn. Stat. Chpt. 327,
before that date, by:
a) Submitting evidence to the City that it has renewed its license under Chapter
327 and is in full compliance with all requirements and conditions for approval
and renewal of the license as set forth by the Minnesota Department of Health.
b) Removing all vehicles from the Campground which do not comply with the
definition of "recreational camping vehicle" or "recreational vehicle" set forth
in Minnesota Statutes, Section 327.14 and 168.002, subd. 27.
c) Removing all motor vehicles from the Campground which are not operable and
licensed as recreational vehicles or recreational camping vehicles.
d) Removing all structures from within the Campground other than the store
building, the owner's home, the barn, and the bathhouse and restroom
buildings.
e) Having the onsite septic system tested by an MPCA licensed septic system
inspector and bringing it into full compliance with State regulations and City
Ordinance.
f) Submitting a plan, which must be approved by the City Council, for verifying
that campers are not making vehicles, structures or tents within the
Campground their residence.
THIS RESOLUTION PASSED AND ADOPTED this 18th day of July, 2011.
John J. Dietz, Mayor
Tina Allard, City Clerk
STATE OF MINNESOTA
COUNTY OF SHERBURNE
Lorraine White, Trustee for the
Lorraine M. White Trust, and
Wapiti Park Campgrounds, Inc.,
A Minnesota Corporation,
Plaintiffs,
v.
City of Elk River,
DISTRICT COURT
TENTH JUDICIAL DISTRICT
Case Type: Zoning
File No.: Not Yet Assigned
Judge: Not Yet Assigned
MEMORANDUM IN SUPPORT OF
WAPITI PARK CAMPGROUNDS
Defendant.
INTRODUCTION
Applicants Lorraine White, Trustee for the Lorraine M. White Trust and Wapiti Park
Campgrounds, Inc. (collectively referred to as "Applicants") submit this memorandum in
response to the actions taken by the City of Elk River ("City") to:
(1) deny the renewal of Applicants' 2000 Interim Use Permit ("2000 IUP");
(2) deny the renewal of Applicants' Liquor Licenses;
(3) deny the rene~,val of Applicants' Consumption and I~isp1_ay Permit; and
(4) revoke the 1984 Conditional Use Permit ("1984 CUP")
Since its inception in 1976, Wapiti Park Campgrounds, Inc. ("Wapiti") has always, even
prior to the adoption of the City of Elk River's ("City") City Code ("Code"), operated as a
recreational campground. Upon the implementation of the Code in 1980, campgrounds were
neither a permitted nor conditional use in the zone where Wapiti is located. As a result, Wapiti
became a legal, nonconforming use. The City amended its Code in 1983 to allow campgrounds
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as a conditional use. In 1984, the City issued Wapiti a Conditional Use Permit with conditions
based upon the amendment to the Code in 1983, even though Wapiti was a legal, non-
conforming use. The conditions of the Conditional Use Permit were never enforced.
FACTS
Lorraine White, Trustee for the Lorraine M. White Trust ("White") is the owner of five
(5) parcels of real property located in the City of Elk River totaling 51.8 acres ("the "Property")
Since 1976, Wapiti has continuously operated a recreational campground ("Campground") on
the Property. In its operation of the Campground, ~TiTapiti has continuously maintained ai:d used
a building, located on a portion of the Property (the "Building"), as an office, bar, laundry and
gathering place for guests.
In September 1980, the City adopted the Code. At the time, campgrounds were neither a
conditional nor permitted use in the zone where the Property was located. As a result of Wapiti's
use of the Property as a campground prior to the City's adoption of the Code, the Campground
has at all times relevant to this action constituted a legal, nonconforming use. In 1983, the City
rezoned the Property to allow campgrounds as a conditional use.
In 1984, despite the Campground's legal, nonconforming use status, the City required
that Applicants obtain a Conditional Use Permit (" 1984 CUP"), with conditions, in order to
operate the Campground. In May 1984, Applicants also applied for and the City issued
Applicants a 3.2 On- Sale liquor license and a 3.2 Off-Sale liquor license ("Liquor Licenses")
allowing Wapiti to sell 3.2 beer and provide "set ups" in the Building. The Liquor Licenses
include a Consumption and Use Permit and have been renewed each and every year until April
2010. At some time after 1984 and before 1998, the City amended its zoning ordinances which
resulted in campgrounds no longer being conditional uses in the zone where the Property was
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located. The City never enforced any of the 1984 CUP conditions and Wapiti operated just as
they always had, as a legal, nonconforming use.
In 1999, a fire completely destroyed the Building. At the time of the fire, the market
value of the Building (approximately $200,000.00) was less than 50% of the market value of the
entire Property (approximately $900,000.00). The Applicants decided to rebuild the Building in
2000. As a prerequisite to issuing a building permit to rebuild the Building, the City required
that the Applicants apply for a conditional use permit. On February 7, 2000, Applicants applied
for a conditional use permit as instructed. At some time after February ?, 2000, the City
unilaterally changed Applicants' conditional use permit application to an application for an
interim use permit. The City knew it could not issue a conditional use permit to rebuild the
Building because the use of the Building as an office, bar, laundry and gathering place for guests
was not a "conditional use" within the district where the Property was located. On April 17,
2000, the City issued an Interim Use Permit ("2000 IUP") permitting White to reconstruct the
Building ("Building II") on the Property, subject to Wapiti's compliance with two (2) conditions:
a. The 2000 IUP was valid for a period of ten (10) years, or until
ownership of Building II is transferred, whichever comes first; and
b. That Building II comply with the requirements of the Chief
Building Official.
Applicants built Building II in accordance with the City's requirements and since its completion,
Wapiti has continuously occupied and used Building II as an accessory to the Campground. The
Building and Wapiti's use of the Building as an accessory to the Campground for an office, bar,
laundry and gathering place for guests preexisted the City's adoption of the Code and at all times
relevant to this action have constituted a legal, nonconforming use.
In June 2010, Plaintiffs applied for the renewal of their Liquor Licenses. On or about
June 21, 2010, the City denied Applicants' application for the renewal of the Liquor Licenses
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stating as a reason for denial was the expiration of the 2000 IUP on April 17, 2010, and alleging
that the Applicants' use of Building II was thereby rendered illegal. At the City's direction,
Applicants submitted an application for the renewal of the 2000 IUP on or about June 21, 2010,
triggering the 60-day rule. From the outset, the City has continuously impeded the Applicant's
ability to obtain the renewal of the 2000 IUP by conditioning approval of the permit on an ever
changing list of conditions that seek to indirectly regulate the Campground and have no bearing
on the regulation of Building II.
On or about July 8, 2010, Elk River city staff sent correspondence to the Applicants
informing them of four (4) recommended conditions for the renewal of the 2000 IUP. Then, on
July 13, 2010, at a meeting of the planning commission, Elk River city staff filed a report
recommending the renewal of Applicants' 2000 IUP, subject to Wapiti's compliance with six (6)
conditions. The planning commission however voted to continue the matter to July 27, 2010.
Then, on July 27, 2010, at a meeting of the planning commission, Elk River staff again filed a
report recommending the renewal of Applicants' 2000 IUP. Approval was now, however,
subject to Wapiti's compliance with eight (8) conditions. Then, on August 2, 2010, the city
council took up the matter. Again, Elk River staff filed a report recommending renewal subject
to Wapiti's compliance with the eight (8) conditions previously recommended by city staff and
ten (10) additional conditions, for a total of eighteen (18) conditions.
In an effort to get around the 60-day rule, on August 2, 2010, after further discussion the
City purportedly approved Applicants' application for the renewal of the 2000 IUP, subject to
the following fifteen (15) final conditions (the "Conditions"):
a. A verifiable plan has been approved by City Council that will ensure
permanent residents will not live at the recreational camping facility;
b. An inspection has verified that the onsite septic system is designed to be
functional year round and remains fully functional;
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c. Staff has approved a manure management plan, incompliance with Section
10-9 of the city code;
d. Staff has approved a debris management plan;
e. The applicant has provided evidence that it is in compliance with all
outstanding violations as identified by the Department of Health inspector;
£ All structures and vehicles other than recreational camping vehicles as
defined by Minnesota Statutes Section 327.14, Subdivision 7 have been
removed; and
g. The applicant is in fully compliance with the nine conditions of the 1984
conditional use permit, as follows:
1. That a private road agreement be entered into between White and the
City of Elk River for access for the property;
2. That the number of campsites within the property by established at
109, with 20 tent sites and that no additional campsites be permitted;
3. That the hours of the campground operation be from 8:00 am to 11:00
pm;
4. That only minor maintenance and repair of recreational vehicles which
is restricted to customers or campers on the site be permitted at the
Wapiti facility;
5. That the store and restaurant on the existing site be used primarily for
individuals utilizing the campground facility and that the store and
restaurant not be expanded;
6. That the permit be reviewed every two years;
7. That the horses housed at the site be kept in such a manner that they do
not provide a nuisance to any neighboring property as defined in the
City's nuisance ordinance;
8. That the provisions of the Minnesota Department of Health rules and
regulations pertaining to recreational camping areas and referred to as
MDH 187, and the provisions of Minnesota Statute 327.10 through
327.28 pertaining to recreational camping areas and recreational
camping vehicles shall apply and be conditions within the City's
conditional use permit; and
9. That the wheels must remain on vehicles parked in campground and
that there be no permanent units for rental purposes.
The City's purported approval required that Applicants comply with the Conditions by
January 1, 2011 or the permit would terminate. The Conditions, however, were not conditions
within the control of the Applicants to comply with, thus the purported approval was actually not
an approval. Rather, it was a continuance. On December 20, 2010, city staff reported that the
Applicants had failed to meet the city's requirements and the City directed city staff to prepare a
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resolution of denial with findings of fact to be considered at its meeting on January 18, 2011. On
January 18, 2011, Applicants' attorneys responded to the City's proposed requirements. In
response to the Applicants' statements, the City again postponed either approving or denying the
renewal of the 2000 IUP and again continued the matter for further review by the City's attorney
to March 21, 2011. The matter was again continued on March 21, 2011 to April 4, 2011, when a
hearing was held. At the hearing, the City continued to require additional conditions by adding
two new conditions (a total of seventeen (17) conditions) to the list of Conditions it had
purportedly already passed on August 2, 2010. The matter was continued to April 18, 2011.
Finally, on April 18, 2011, nearly 10 months after the Applicants first submitted their application
to the city, the City voted to deny the renewal of Applicants' 2000 IUP by resolution dated April
18, 2011.
In addition, on June 20, 2011, the City voted to revoke the Applicants' 1984 CUP. The
City's revocation of the 1984 CUP was based on alleged violations of conditions that were not
included in the 1984 CUP. In its revocation of the 1984 CUP, the City did not cite any instance
of the Applicants' violating any of the express conditions of the 1984 CUP.
The Applicants have complied with all administrative remedies available to them. The
Applicants should never have been required to obtain the 1984 CUP. The 1984 CUP and its
conditions expired when the City removed campgrounds as a conditional use sometime after
1984 and prior to 1998. As a result, any conditions associated with the 1984 CUP (if even
enforceable) are no longer applicable to the Applicants. Further, the Applicants should have
never been required to obtain the 2000 IUP after the Building was destroyed by a fire because
the value of the Building was not worth more than 50% of the entire legal, nonconforming use
(Property). In the event the Applicants are required to obtain an interim use permit to use and
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occupy Building II, the City can only impose conditions that relate to the use of Building II, as
opposed to trying to impose conditions that seek to regulate the Campground as a whole.
ARGUMENT
I. The Applicants' Campground and the Building are legal, nonconforming
uses.
Wapiti began doing business in 1976 and at all times used and occupied a building
located on the Property as an office, bar, laundry and gathering place for guests. In 1976,
Minnesota statutes section 4632.357 stated the following with respect to a legal, nonconforming
use:
"Subd. le. Nonconformities. Any nonconformity...may be
continued, including through repair or maintenance, but if the
nonconformity or occupancy is discontinued for a period of
more than one year, or any nonconforming use is destroyed by
fire or orther peril to the extent of greater than 50 percent of its
market value, any subsequent use or occupancy of the land or
premises shall be a conforming use or occupancy."
At the time the City adopted the Code in 1980, Wapiti had been legally operating for
approximately four (4) years. In 1980, the Code did not allow campgrounds as either a permitted
nor conditional use in the zone where the Property was located. As a result, Wapiti became a
legal, nonconforming use. In 1983, Defendant amended the Code to permit campgrounds as a
conditional use within the zone where the Property was located.. Despite Vilapiti's legal,
nonconforming use status, Defendant required Plaintiffs obtain a conditional use permit in order
to continue operating the Campground in a manner that was consistent with how Plaintiffs had
always operated. At Defendant's direction, Plaintiffs applied for and were issued a conditional
use permit in 1984 (" 1984 CUP")
The Applicants never waived their legal right to legal, nonconforming use status in either
the Campground or the Building. Absent the change of use or abandonment, a legal,
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nonconforming use must be permitted to remain. The City has never alleged that Wapiti has
changed its operation. Rather, the City has even maintained that Wapiti has operated in the same
manner for the past 35 years. Moreover, the City has never claimed that Wapiti has ever
abandoned the Property.
Simply put, the Applicants should have never been required to obtain the 1984 CUP.
Despite the City's claims, the Applicants did not have legal counsel present throughout the
permit process. The planning commission and city council meeting minutes make clear, by the
time the Applicants' obtained legal counsel, the 1984 CUP had already been issued. Riclc
Breeze, the Director of Planning for the City in 1983, unilaterally determined that Wapiti was a
"non-conforming" use that required either a zoning change or conditional use permit to come
into compliance. Although the City now routinely states that the Campground was a legal,
nonconforming use, back then Mr. Breeze never stated that the Applicants' could continue to
operate the Campground as they always had because they were a legal, nonconforming use. This
option was never presented to the Applicants. Relying on the City, the Applicants applied for a
conditional use permit as instructed.
At a meeting of the planning commission on February 28, 1984, Mr. Breeze indicated
that the Applicants were applying for a conditional use permit. The planning commission
recommended approval of the conditional use permit with six (6) conditions. Then, at a meeting
of the city council on March 19, 1984, the city council approved a conditional use permit for the
Applicants subject to seven (7) conditions. No attorney was present on behalf of the Applicants
for either of those hearings. Despite the City's approval of a conditional use permit at the March
19, 1984 hearing, the City continued the public hearing to review and consider the length of stay
of campers at Wapiti.
8
On May 7, 1984, the City added additional conditions to the previously approved
conditional use permit. Although the Applicants were represented by counsel at this hearing, the
conditional use permit had already been issued approximately two months earlier. Despite a
clear violation of the "60 day rule," the City amended the Applicants conditional use permit by
adding additional conditions.
II. Applicants had an absolute right to rebuild the Building in 2000 without
needing an IUP.
In 2000, Minnesota statutes section 4632.357 stated the following with respect to a legal,
nonconforming use:
"Subd. le. Nonconformities. Any nonconformity...may be
continued, including through repair or maintenance, but if the
nonconformity or occupancy is discontinued for a period of
more than one year, or any nonconforming use is destroyed by
fire or orther peril to the extent of greater than 50 percent of its
market value, any subsequent use or occupancy of the land or
premises shall be a conforming use or occupancy."
In determining the extent of the destruction to a legal, nonconforming use, consideration
of the entire legal, nonconforming use must be considered. (See Hertog v. Milwaukee Mut. Ins.
Co., 415 N.W.2d 370 (Minn.App.1987) (Case dealt with a nonconforming floral business in
which a building was destroyed by fire. Although a city ordinance regulated nonconforming
uses destroyed to an extent over 75% of market value, Hortzog recognized<that a floral business,
the nonconforming use, constituted more than one structure for the purpose of ascertaining the
percent of destruction.) (See also Buss v. Johnson, 624 N.W.2d 781, 787 (Minn.App.2001)
(Holding that "a consideration of the market value of an entire nonconforming use comports with
the legislature's goal of gradually reducing nonconforming uses while protecting interests of
property owners, and has the support in both Minnesota and foreign jurisdictions...Accordingly,
we conclude that the legislature... intended the percentage of destruction to be determined after a
9
f
t'
consideration of the entire market value of the nonconforming use of which a building is a part,
not a consideration of the market value of the destroyed building alone.)
When the Building burned down in 1999, Defendant claimed it could not be rebuilt
because it had been destroyed beyond 50%. However, Defendant failed to take into account the
market value of the entire legal, nonconforming use. At the time of the fire, the Building was
worth approximately $200,000 and the entire legal, nonconforming use (Property) was worth
approximately $900,000. Had Defendant considered the value of the entire legal,
nonconforming use instead of the value of the Building itself, Plaintiffs would never have had to
obtain an interim use permit to rebuild the Building because the value of the Building was worth
substantially less than 50% of the entire legal, nonconforming use.
III. The conditions associated with the renewal of the 2000 IUP imposed by the
City that seek to regulate the Campground and are impermissible, arbitrary,
and capricious.
Of the seventeen (17) Conditions the City has required for the renewal of the 2000 IUP,
few, if any, actually pertain to the use and operation of the Building. Although this seems to be
an issue of first impression in Minnesota, other jurisdictions have required that any condition
imposed on the issuance or renewal of a permit be reasonably related to the purpose of the
permit. (See Watanbe v. City of Phoenix, 140 Ariz. 575, 683 P.2d 1177 (App. 1984)
(Nonconforming uses are subject to reasonable police power...so long as the application of such
regulation does not substantially impair continued use of the property for purpose used at the
time the regulation takes effect"). (See also Sternaman v. County of McHenry, 454 F.Supp. 240
(N.D. Ill., 1978) (Where the zoning municipality did not require any special permit for the
mining of gravel and sand, but did require a conditional use permit for onsite processing,
conditions imposed upon the grant of the permit were required to bear a reasonable relation to
10
the processing and could not be merely an attempt to indirectly regulate the mining operation).
In other words, the City cannot attempt to regulate the Campground through the conditions
associated with 2000 IUP. The 2000 IUP pertains to the use and occupancy of the Building, not
the Campground. Any condition imposed by the City must bear a reasonably relation to the use
and occupancy of the Building.
IV. The City's revocation of the 2000 IUP is not a sufficient basis on which to
revoke Applicants' Liquor Licenses.
The City has refused to renew the Applicants' Liquor Licenses because it claims the
Building is illegal due to the expiration of the 2000 IUP. As stated above, the Building is not
illegal. The Building is a legal, nonconforming use for which the Applicants should have never
been required to obtain an interim use permit to begin with. Although the City may try to claim
that its denial was based on Applicants failure to pay the application fee, this is simply an
attempt by the City to shield itself from the truth. In March 2011, the City denied the renewal of
Applicants' Consumption and Display permit. In its denial, the City claimed that the Building
was illegal because its 2000 IUP had expired.
As the City is well aware, a liquor license is useless without a Consumption and Display
Permit. Once the City denied approving the Consumption and Display Permit, the Applicants
had no reason to attempt to gain approval for the Liquor Licenses. Even if the Applicants had
paid the fee, the City would have surely denied the Applicants' request on the grounds that the
Building was illegal. However, even if the City would have approved the Liquor Licenses, the
Applicants would have been unable sell on/off sale because of the City's denial of their
Consumption and Use Permit back in March.
11
V. The 1984 CUP with conditions is not binding and is no longer in effect.
Even if the City's actions in forcing the Applicants to obtain the 1984 CUP are upheld,
the permit. is no longer binding or in effect because it expired when the City amended its
ordinances sometime after 1984 and prior to 1998 by removing campgrounds as a conditional
use in the zone where the Property is located, because the City never recorded the 1984 CUP,
and because until now the City has never attempted to enforce the 1984 CUP.
When the City amended its ordinances and removed campgrounds as a conditional use in
the zone where the Property was located, the 1984 CUP ceased to exist and its conditions could
not be enforced because a City cannot issue a conditional use permit for a use that is not a
conditional use. By removing campgrounds as a conditional use in the zone where the Property
was located, the City forfeited any right to impose a conditional use permit on the Applicants.
In addition, "a certified copy of any CUP must be recorded with the county recorder or
registrar of titles," Upper Minnetonka Yacht Club v. City of Shorewood, 770 N.W.2d 184, 187
(App. 2009) (citing Minn. Stat. § 462.3595, subd. 4 (2008)). No copy of the 1984 CUP is
currently on file nor is there any evidence that the permit ever was filed.
Finally, as past planning commission and city council minutes show, although the City
has been co~zcerned about "long term" campers occupying Wapiti, they always came to the
conclusion that enforcing a length of stay condition was out of their authority. Despite Wapiti
operating in same manner for 35 years, only now has the City taken any enforcement action.
Although one of the conditions of the 1984 CUP was that it be reviewed every two years, there is
no record of any review ever occurring since the permit was issued in 1984.
VI. Revocation of the 1984 CUP was Unreasonable.
12
At the meeting of the city council on June 20, 2011, the City voted to revoke the 1984
CUP. The Applicants maintain that the 1984 CUP is void and unenforceable. However, even if
it were enforceable, the City's revocation was unreasonable and unsupported by any evidence
that the Applicants have violated any of the conditions associated with the 1984 CUP. A CUP is
perpetual in nature and remains in effect as long as the conditions agreed upon are observed.
To date, the Applicants are unclear as to what the City based revocation on.
Regardless, Wapiti should be allowed to continue running its business because it was a
legal, nonconforming use at the time the 1984 CUP was granted and remains a legal,
nonconforming use without the need of a CUP today.
Dated: ~ ~ r ~ , 2011 WAYZATA LAW GROUP, LLC
~-
James G. Robin (# 92290)
Adam C. Kaatz, (#0386800)
1907 E. Wayzata Blvd.
Suite 170
Wayzata, MN 55391
Telephone: (952) 475-1025
BATTINA LAW, PLLC
Bryan R. Battina - (#338102)
1907 E. Wayzata Blvd.
Suite 170
Wayzata, MN 55391
Telephone: (952) 314-1344
ATTORNEYS FOR PLAINTIFFS
13
...
Elk
..River
TO: City Council
MEMORANDUM
FROM: Jeremy Barnhart, Planning Manager
DATE: July 14, 201
SUBJECT: Wapiti Park
On the morning of June 27, I received a call from a former resident of Wapiti Park. He said he
called after reading the article about Wapiti Park in the weekend Qune 25) edition of the Star Nesvr.
This resident stated he lived in Wapiti Park for over a year, moving out in May, 2010. He said he
"chuckled" after reading the article, noting in his opinion that "most of the people out there live
there year round". He stated that the people shown on the Channel s news report saying that they
just camped at Wapiti Park actually lived at the park. He noted that a "Chris and Alicia" had lived
there for over 10 years and a person named "Angel" had lived there for over 15 years.
On July 14 the former resident reviewed the petition submitted by Wapiti Park on June 20, 2011.
He highlighted 17 names on the petition that in his opinion are permanent residents of the Wapiti
Park ampground.
N:\Departments\Community Development\Planning\Case Files\CUP\CU 10-16 Wapiti Park IUP\CU 10-16 Memo to Council RE comments from
former resident 7-1411.docx