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6.5. SR 07-20-1998_ity of River ITEM 6.5. MEMORANDUM TO: FROM: DATE: Mayor and City Council Scott Harlicker, Planning Assistant~/~ July 20, 1998 SUBJECT: Request by Cargill for Appeal to Building Permit Decision, Case No. GP 98-1 Issue Cargill, Inc. is requesting to appeal a decision by staff not to issue a building permit for new construction of a research facility within the urban service district prior to the availability of sewer and water. This issue is specifically referenced in Section 900.20(16) of the Elk River Code of Ordinances. Staff anticipates a request by Cargill that the City Council's hearing on their appeal of the City's denial of a building permit be postponed until the Council's August 17, 1998 meeting. Should Cargill not request the appeal be postponed, it is recommended the City Council support the zoning decision to deny a building permit for the construction of a new facility within the urban service district prior to the availability of city sewer and water as set forth in Section 900.20(16) of the Elk River Code of Ordinances. Attached is a copy of Steve Ach's memo to the Board of Adjustment dated March 24, 1998 and the minutes of that meeting. 13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 · TDD & Phone: (612) 441-7420 · Fax: (612) 441-7425 MEETING OF THE ELK RIVER BOARD OF ADJUSTMENTS HELD AT ELK RIVER CITY HALL TUESDAY, MARCH 24, 1998 Members Present: Members Absent: Staff Present: Chair Mesich, Commissioners Chambers, Cote, Kuester and Thompson. Commissioner Morris arrived at 6:35 p.m. Commissioner Schuster arrived at 6:37 p.m. None Steve Ach, City Planner; Dave Sellergren, City Attorney; Scott Harlicker, Planning Assistant; Debbie Huebner, Recording Secretary Pursuant to due call and notice thereof, the meeting of the Elk River Board of Adjustments was called to order at 6:30 p.m. by Chair Mesich. 2. consider 3/24/98 B°ard °f Adjustments A.qenda COMMISSIONER THOMPSON MOVED TO APPROVE THE MARCH 24, 1998 BOARD OF ADJUSTMENTS AGENDA. COMMISSIONER COTE SECONDED THE MOTION. THE MOTION CARRIED 5-0. 3.1 c~rpill, Inc: Request for ApPea OfBui din.q Permit Denial Decis on;PUb ic Hearin.q case NO: GP 98~i Staff report by Steve ,*,ch. Cargill, inc. is appealing a staff decision not to issue c building permit for construction of a new research facility within the urban service district prior to the availability of sewer and water. The proposed facility location is north of 165th Avenue and east of the solid waste facility along Highway 10. Cargill submitted a building permit application in September of 1997. Since the proposed site for the building was within the urban service area, staff interpreted the ordinance to not allow a bulding permit prior to water and sewer being available. Dave sellergren, City Attorney, explained the Board of Adjustment's task is to determine whether or not staff made an error in the decision to deny Cargill's request for a building permit. Chair Mesich opened the public hearing. Greg Fontaine of Dorsey and Whitney law firm representing Cargill, introduced Tim Thomas; Rita Schmahl, Manager of the Animal Nutrition operation; Mike Craig, Vice President of the Animal Nutrition Division; and Carl Nelson of Cargill. Mr. Fontaine explained the proposed research and development facility would be used for testing equipment for the pilot manufacture of various products and Board of Adjustments Minutes March 24, 1998 Page 2 provide an array of research and development services related to food, animal nutrition, and agricultural products for Cargill operations around the world. He stated this is the type of operation the City is hoping to attract in the I-1 zone. Mr. Fontaine stated the proposed project by Cargill would not cause any pollution, would be compatible with neighboring property uses, is a permitted use within the I-1 zone and meets all the performance building standards, and is consistent with the Comprehensive Plan. He stated that from Cargill's standpoint, they have met all the City's requirements and are entitled to a building permit and under Minnesota law and are entitled to build the facility because it is a permitted use. Mr. Fontaine stated that in order for the ordinance to be applied legally, the City must allow development of a permitted use to occur at some point in time. Mr. Fontaine stated City staff has informed Cargill city sewer and water will not be available anytime in the foreseeable future, if ever. The City Engineer, Terry Maurer, informed him the only plans under consideration are as stated in the interim feasibility study dated July 1997, to extend sewer and water into project areas A and C, which is one-half mile or more from the project site. Mr. Fontaine questioned why the urban service area was extended into the Cargill property if there are no plans to extend sewer and water for at least 20 years, or possibly not ever. Mr. Fontaine stated the City cannot impose a moratorium on development for an indefinite period of time or for as long as 20 years. He stated that application of Section 900.20(16) would result in arbitrary capricious unlawful conduct by the City. Mr. Fontaine stated he felt this issue could be worked out with the City, but if not, they were prepared to take action to protect their legal rights. Chair asked Mesich why Cargill is against going through the process to amend the ordinance to allow the proposed development. Mr. Fontaine indicated that by Statute, Cargill must appeal within a certain period of time to protect their rights. He asked the City to present a specific proposal to amend the ordinance for them to review. He felt the City should not expect Cargill to agree to seek a conditional use permit and wait to see what conditions would be required. Mr. Fontaine expressed Cargill's concern for the special assessments they could incur on their 980 acres, most of which is outside of the I-1 zoning. He stated Cargill is not interested in taking any action that will create the slightest risk that the City will use an ordinance amendment or other controls to prove benefit of water and sewer. He estimated the assessments could be up to $10 million or more. Mr. Fontaine indicated Cargill would like to find a solution to the matter so that the proposed facility can be constructed and they will not be faced with a similar situation in the future for other projects. He stressed that Cargill has been at this location for 40 years and plans to be there forever. He expressed Cargill's willingness to work with the city to resolve their issues. There being no further public comment, Chair Mesich closed the public hearing. Commissioner Thompson asked Mr. Sellergren, City Attorney, why Mr. Fontaine feels the ordinance is not legally allowable. Mr. Sellergren indicated he received a large amount of material from Cargill's legal counsel in the last day and has not had a chance to review most of it. He indicated the letter dated March 23rd cites public policy and law and would need to review the case information before advising on the merits of the argument. Mr. Sellergren stated the Planning Commission's role is to decide if Board o~ Adiustments Minutes March 24, 1998 Page 3 staff misread the ordinance. He explained the Planning Commission can make a decision on staff's interpretation tonight or have the issue brought back in another month after he and Mr. Ach have read through all of the information Cargill has submitted. Mr. Fontaine requested the Planning Commission take time to review the issue thoroughly before making a decision. Commissioner Kuester explained that a similar request was reviewed by the Planning Commission in which the legal issues were unclear. She indicated it is the Planning Commission's view to not allow development to occur within the urban service district until water and sewer is available. COMMISSIONER KUESTER MOVED TO SUPPORT STAFF'S DECISION TO DENY A BUILDING PERMIT REQUEST BY CARGILL, INC. FOR THE CONSTRUCTION OF A NEW FACIILITY WITHIN THE URBAN SERVICE DISTRICT PROR TO THE AVAILABILITY OF CITY SEWER AND WATER AS SET FORTH IN SECTION 900.20(16) OF THE ELK RVIER CODE OF ORDINANCES, PUBLIC HEARING CASE NO. GP 98-1. COMMISSIONER THOMPSON SECONDED THE MOTION. THE MOTION CARRIED 6-0-1. Commissioner Chambers abstained. Discussion followed regarding the City's willingness to work with Cargill to achieve both the City's and Cargill's goals. Steve indicated Cargill could request an ordinance amendment to exclude their property in question from the urban service boundary, or some other type of ordinance amendment. Mr. Sellergren suggested the City come forward with some type of ordinance amendment and present it to Cargill. Mr. Fontaine stated Cargill is not interested in an ordinance amendment for the urban service boundary, nor are they in favor of seeking some type of variance. COMMISSIONER COTE MOVED THAT THE BOARD OF ADJUSTMENTS CONVEY TO THE CITY COUNCIL THAT, WHILE THE BOARD OF ADJUSTMENTS DID NOT BELIEVE THAT STAFF ERRED IN APPLYING THE ORDINANCE, THE PLANNING COMMISSION DOES SUPPORT CARGILL'S PROPOSED PROJECT AND WOULD ENCOURAGE STAFF AND THE CITY COUNCIL TO WORK TOGETHER FOR AN ALTERNATIVE MEANS TO GET THIS PROJECT IMPLEMENTED. COMMISSIONER THOMPSON SECONDED TI-IE MOTION. THE MOTION CARRIED 7-0. 3.2. Edward and Cynthia Soltis Request for Accessory Structure Area Variance, Public Hearinq Case No. V 98-2 Staff report by Scott Harlicker. Edward and Cynthia Soltis have requested a variance to the maximum square footage allowed for accessory structures at 13090 227th Avenue NW. The Soltis' propose to construct a 54' x 104' riding arena which would exceed the maximum square feet allowed by 3231 square feet. Scott reviewed the reasons for the request submitted by the applicants. He indicated the applicants should combine the two lots they own for a total of 16.68 acres. Staff suggests the proposed building be relocated to a less conspicuous site on the property. Chair Mesich opened the public hearing. _.~y of E River MEMORANDUM Item # 3.1. TO: FROM: DATE: SUBJECT: Board of Adjustments Steve Ach, City Planner. r.r.r ~.~d~. March 24, 1998 Request by Cargill, Inc. to Appeal a Zoning Determination, Public Hearing Case No. GP 98-1 Issue Cargill, Inc. is requesting to appeal a decision by staff not to issue a building permit for new construction of a research facility within the urban service district prior to the availability of sewer and water. This issue is specifically referenced in Section 900.20(16) of the Elk River Code of Ordinances. Location The proposed research facility is located just north of 165th Avenue and east of the solid waste facility along Highway 10. Attachments Location map Urban service boundary map Correspondence regarding the application Overview Sometime in September of 1997, Cargill submitted plans and requested a building permit to construct a research laboratory and office space on property they currently owned north of 165th Avenue. The specific site proposed for the research facility is across 165th from the current research facility and animal nutrition center. The property on which the research facility would be located is zoned I-1 (Light Industrial). If city sewer and water were available, the facility would be a permitted use requiring administrative site plan review prior to issuance of a building permit. 13065 Orono Parkway · P.O. Box 490 · Elk River. MN 55330 · TDD & Phone: (612) 441-7420 · Fax: ~612) 441-7425 Memo to Board of Adjustments/GP 98-1 March 24, 1998 Page 2 In a letter to Rita Schmahl at Cargill dated October 1, 1997, I informed Ms. Schmahl that the City could not issue a building permit for their proposed research facility at the subject site because the city ordinance prohibited development within the urban service district prior to the availability of city sewer and water. Ms. Schmahl was informed that if this same building was proposed south of 165th contiguous to their existing facility, the building could be constructed pursuant to the issuance of a conditional use permit. Since that October 1st letter, there has been a series of correspondence between myself, the City Attorney and Mr. Greg Fontaine at Dorsey Whitney, who is representing Cargill in this matter. I have also attached the excerpt from the zoning ordinance pertaining to development within the urban service prior to the availability of city water and sewer. It is staffs opinion the ordinance reads clearly and Cargill's request to construct a new facility within the urban service area prior to the availabihty of sewer and water is not permitted. As I pointed out in my letter dated November 17, 1997, to Greg Fontaine, in order to construct the research facility in the proposed location, another option would be to request an ordinance amendment modifying the section of the ordinance regarding development prior to city water and sewer. Recommendation It is recommended the Board of Adjustments deny the request by Cargill, Inc. appealing a zoning decision to deny a building permit for construction of a new facility within the urban service district prior to the availability of city sewer and water as set forth in Section 900.20(16) of the Elk River Code of Ordinances. \\elkriver\sys\shrdoc\planningXpc\gp98-1.doc M FACILIT ! I i I ! ! ! ! ! ! I I I I I I &REA A. The shared parking concept does not circumvent the perimeter setback requirement or the required number of parking stalls. B. Proper cross access and cross parking agreements are prepared and executed. C. Common architectural and design standards for all units within the zero lot line development may be required. D. Each zoning lot shall meet the Performance Standards of the zoning district. E. The landscaping and screening provisions of this ordinance shall apply to the zoning lot. F. For the purpose of determining the placement and number of signs for a zoning lot and the uses thereon, the zoning lot shall be considered a "lot" as referenced in the City's sign ordinance. As such, one free-standing or monument sign is permitted on the zoning lot to identify the uses established thereon. 16. DEVELOPMENT WITHIN THE URBAN SERVICE AREA PRIOR TO THE AVAILABILITY OF CITY WATER AND SEWER The Urban Service Area is defined in the Elk River Comprehensive Plan as the area planned for development with city water and sewer services. As a prerequisite to applying for or receiving any building permit or planning application in all commercial, industrial and business park zoning districts within the urban service area, city municipal utilities (i.e., sewer and water) must be available for immediate hookup and/or available at the time of occupancy. The following are exceptions to the above stated requirements: A. Existing businesses (structures) located within the urban service area and not currently served or have the opportunity to hook up to city sewer and water, may apply to expand a principal structure; or add a second principal structure on the same parcel. In addition to all other city ordinances or regulations of the city, the following conditions shall apply to an expansion of an existing structure or construction of an additional principal structure on the same parcel: An application for a conditional use permit must be submitted in accordance with the requirements set forth in the Zoning Ordinance. 9.73 ii. iii. Applicant enter into a developer's agreement stipulating the likelihood of the payment of future assessments for city sewer and water. Applicant sign a waiver of rights to appeal future assessments for city sewer and water on the basis of: a. The permitted expansion or additional structure; or, b. The sufficiency of the existing well and septic system. iv. The proposed addition and/or building expansion shall be consistent with the city's Comprehensive Plan. v. Ail building improvements shall include ~ provisions for a timely hook up to city water and sewer in accordance with applicable city code requirement. 9.74 2. Board Procedure. The Board may adopt rules of procedure for the transaction of its business consistent with the provisions of this Ordinance and Minnesota Statutes 462.351 through 462.364. Four members of the Board shall constitute a quorum. Regular meetings of the Board shall be held on the fourth Tuesday of each month or at such other times as are specified in its rules. Special meetings shall be held at the call of the Chair, who shall be the Chair of the Planning Commission. Notice of special meetings shall be posted at the City Hall and transmitted to members at least three (3) days prior to the date of the meeting. There shall be a fixed place of meeting and all meetings shall be open to the public. A record shall be kept of the Board's transactions, findings and determinations. 3. Powers and Duties of Board. Pursuant to Minnesota Statutes 462.357, Subd. 6, the Board shall have the following powers: A. To hear and decide appeals where it is alleged that there is an error in any order, requirements, d~cision or determination made by the Building and Zoning Administrator in the administration of a land use ordinance. B. To hear requests for variances from literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration. 4. Appeal. An appeal as specified in 3(a) may be made by any person (appellant), including a city officer or employee, affected by action of the Building and Zoning Administrator. An appeal may be made only following the transmission of a written notice of appeal which specifies the subject and grounds therefor. Such notice must be received by the Building and Zoning Administrator within sixty (60) days following the issuance of the order, requirement, decision or determination which is the subject of the appeal. 5. Variance. A. A variance may be requested only by the owner of the property (petitioner) to which the variance would apply. A variance may not be granted which would allow the use of property in a manner not permitted within the applicable zoning district, provided that the Board may grant a variance for the temporary use of a single-family dw~iling as a two family dwelling. In granting any variance, the Board may prescribe conditions, to ensure substantial compliance with the ordinance and to protect adjacent property, including without limitation, an expiration date. The violation of any written condition(s) shall constitute a violation of this Ordinance. No request for a variance may be resubmitted sooner than six (6) months following a denial. A variance shall become void within two (2) years 9.143 DOHER RUMBLE & BUTLER I-~t'pl', to ",lilmv,~p,,h,, Beckp~drblaw.com December 3, 1997 Gregory A. Fontaine Dorsey & Whitney 220 South 6'~ Street Minneapolis, MN 55402-1498 Re: Cargill, Inc. Notice of Appeal Dear Mr. Fontaine: Steve Ach is out of town this week and has asked that I get back to you with regard to the Notice of Appeal you filed on November 26, 1997 on behalf of Cargill, Inc. As you know, I serve as City Attorney for the City of Elk River. The Notice of Appeal indicates that Cargill, Inc. is appealing an October 1, 1997, decision denying a building permit for a proposed research facility north of 165~ Street at Cargill's animal nutrition center. Mr. Ach's October 1, 1997 letter states that: "Although the proposed use of the building as a research laboratory and office space is a permitted use in the I-1 zoning district, the City's zoning ordinance does not allow development within the urban service boundary until utilities are made available. Therefore, I cannot review the plans you have submitted nor can we issue a building permit for a building at this location." The issue before the Board of Adjustments will be whether a building permit can be issued in light of Section 900.20(16) of the Elk River Code of Ordinances. I am enclosing a copy of this section of the Zoning Ordinance for your information. Cargill's appeal will be processed pursuant to Section 900.40 of the City's Code of Ordinances. The appeal will be heard by the Board of Adjustments at its regular meeting on January 27, 1998. If the Board approves the appeal, that decision will be final unless an appeal is taken to the City Council. If the Board of Adjustments denies the appeal, that decision will automatically be reviewed by the City Council. In addition to the Notice of Appeal, it will be necessary for Cargill to submit the $150 application fee and a list of the owners of each property situated wholly or partly within 350 feet of the property to DORSEY & WHITNEY LLP P. OCH£$T£K PILLSBUK¥ CENTEII. SOUTH 220 SOUTH SIXTH STR. EET MINNEAPOLIS, MINNESOTA 55402-1498 TELEPHONE: (612) 340-2600 FAX: (612) 340-2868 GREGOI~Y ~ FOI~T~NE (612) 340-8729 NEV/ YOI~K DENV£t~ SEATTLE FAI~GO BILLINGS MISSOULA November 26, 1997 Mr. Steve Ach City Planner City of Elk River 13065 Orono Parkway P.O. Box 490 Elk River, MN 55330 Re: Notice of Appeal Dear Mr. Ach: Pursuant to Section 900.40 of the Zoning Code of the City of Elk River and Minn. Stat. § 462.357, Cargill, Inc. hereby provides notice of its appeal and/or variance request ("appeal") of the City's administrative decision, dated October 1, 1997, denying Cargill's application for a building permit for its proposed research~ facility located north of 165th Street at the company's Animal Nutrition Center. Cargill requests a hearing before the Elk River Board of Adjustments as authorized by Section 900.40(6) of the Zoning Code and Minn. Stat. § 462.357, subd. 6. Cargill further requests that the appeal be held at a mutually agreed upon time to be established at least 30 days in advance of the hearing date so that both parties will have an adequate opportunity to prepare and to accommodate the schedules of all involved in the process. Your letter of November 17, 1997 to the undersigned appears to misperceive the intent of Cargill's research facility proposal. Cargill does not wish to construct the facility south of 165th Street, and does not intend to seek a conditional use permit in cormection with the research project since it is a permitted use at its proposed location. DOHERTY RUMBLE & BUTLER PROFESSIONAL ASSOCIATION Gregory A. Fontaine December 3, 1997 Page 2 which the appeal relates. The 60-day period for review of the appeal will begin when the application fee and owners list is received at City Hall. Because of the possibility of City Council review of the appeal, the period for review of this request will be extended an additional 60 days pursuant to Minnesota Statutes Section 15.99, subd. 3(f). Please call either the undersigned or Steve Ach if you have any questions. Peter K. Beck PKB/eka Enclosure cc: Steve Ach B¢ckP538900.1 Ck. of ver November 17, 1997 Greg Fontaine Dorsey & Whitney, LLP Pillsbury Center South 220 South Sixth Street Minneapolis MN 55402-1498 Dear Mr. Fontaine: This letter is a response to your letter dated October 31, 1997. I would li~e to begin by clarifying the City's position regarding issuance of a conditional use permit for Cargill's research facility. No decision has been made by the City not to issue a conditional use permit for Cargilrs research facility. The approvals required depend upon where the research facility is to located. The plans which were dropped off at City Hall in late September showed the facility located north of 165th Avenue. As noted in my October 1, 1997 letter to Rita Schmahl, the City Zoning Ordinance does not allow development in tkis area until utilities are made available. Therefore, in order to proceed at this location, the appropriate procedure would be to request an ordinance amendment modifying the current ordinance regarding development within the urban service boundary prior to water and sewer. If the research facility were proposed to be located south of 165th Avenue, a conditional use permit would be required. As noted in my October 1 letter, an apphcation for a conditional use permit would be considered along with an ordinance amendment establishing a use for "agricultural business". I don't believe Section 900.40 of the City's Zoning Ordinance applies to any type of proposal north of 165th Avenue. However, if Carroll were proposing a 13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330- TDD & Phone: (612) 441-7420 · Fax: (612) 441-7425 facility south of 165th Avenue, and would lg~e to appeal Staffs interpretation that a conditional use permit would be required, then Section 900.40 should be followed. Sincerely, City Planner 14:25 F.~ 612 J40 2807 DORSEY & ~'EIIATY ~002 DORSEY & WHITNEY LLP 9-20 SOUTH SIXTI-I ST~F=[T ~iNN~POLIS. ~ZNN~sOTA 55402-149B ~EL~PHONE: (612) 340-2600 F~X: (612) 540-2868 October 31, 1997 BY I~ACSIMILE Mr. Steve Ach City Planner City of Elk River 13065 Orono Parkway P.O. Box 490 Elk Fiver, MN 55330 Dear Mr. Ack: This letter follows up on our several recent conversations. I am co~g your indication to me that any appeal by Cargill Inc. of Elk River's decision, dated October 1, 1997, not to issue a conditional use permit in connection with the comparty's proposed research facility is governed by the procedures set forth in ~ Section 900.40 of the City's zoning ordinance. My understanding is that these procedures include a 60-day appeal period ~s set forth in Section 900.40(3). You indicated last week th. at you would contact me if my understanding concerning the applicable appeal procedures was not correct in the City's view. Since my calls earlier this week to you were not returned, and I have not otherwise heard from Elk River, I believe the City agrees that Section 900.40 is controlling. Thank you. GAF:rio Grego~/l%ntaine DORSEY & WHITNEY LLP Mr. Steve Ach November 26, 1997 Page 2 Because Elk River's denial of the building permit application is an administrative decision with respect to the City's land use ordinance, Cargill is entitled as a matter of law to pursue relief before the Board of Adjustments under Section 900.40 of the Zoning Code and Minn. Stat. § 462.357, subd. 6. Cargill is not required to seek an ordinance amendment as your November 17, 1997 letter suggests. Please call me at your earliest convenience so that we may discuss procedures and schedules for the proceedings before the Board of Adjustments. Thank you in advance for your cooperation. GAF:gle Very ti C 'vel' October 1, 1997 Rita Schmahl Cargill 10383 165th Avenue Box 301 Elk River MN 55330-0301 Dear Rita: I briefly reviewed the plans that you dropped off at Elk River City Hall and noticed the location of the proposed building is along the north side of 165th Avenue. This property is zoned I-1 (Light Industrial) and is within the City's urban service boundary. Although the proposed use of the building as a research laboratory and office space is a permitted use in the I-1 zoning district, the City's zoning ordinance does not allow development within the urban service boundary until utilities are made available. Therefore, I cannot review the plans you have submitted nor can we issue a building permit for a building at this location. If this same building would be constructed on the south side of 165th Avenue within the Rla (Single Family Residential) district, a conditional use permit would be required. The conditional use permit would basically be an amendment to the conditional use permit Cargill received in 1993 for a feed lot. As I discussed with Tim Thomas a couple weeks ago, a conditional use permit application on the property south of 165th Avenue would be considered along with an ordinance to create a definition that will accommodate Cargill's facility. If you have any questions or concerns, please feel free to contact me at 441-4902. I have enclosed the plans you provided me last week and would ask if you pursue a conditional use permit on the property south of 165t~ , please resubmit the plans along with the appropriate information and apphcations. Sincerely, City Planner \\elkriver\syskshrdoc\planning\cargill.doc 13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 · TDD & Phone: (612) 441-7420 · Fax: (612) 441-7425