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03-24-1998 BA MIN APPRN[11E!Jil • MEETING OF THE ELK RIVER BOARD OF ADJUSTMENTS HELD AT ELK RIVER CITY HALL TUESDAY, MARCH 24, 1998 N Members 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. Members Absent: None Staff Present: Steve Ach, City Planner; Dave Sellergren, City Attorney; Scott Harlicker, Planning Assistant; Debbie Huebner, Recording Secretary 1 Call Meeting,To.,Order 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 Board.3of Adjustments Agenda • 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. Caraill,Inc. Reauest for Appeal of Building Permit.Denial Decision, Public Hearinq.; Case No;:GP98-i. Staff report by Steve Ach. Cargill, Inc. is appealing a staff decision not to issue a 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 of Adjustments 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 THE MOTION. THE MOTION CARRIED 7-0. 3.2. Edward and Cynthia Soltis Request for Accessory Structure Area Variance, Public Hearing 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. Board of Adjustments Minutes March 24, 1998 Page 4 Edward and Cynthia Soltis, applicants, explained the reasons for building the arena and the proposed location. They stated their neighbors have no objection to their plans, as indicated in the attached letters. There being no further public comment, Chair Mesich closed the public hearing. COMMISSIONER COTE MOVED TO APPROVE THE REQUEST BY EDWARD AND CYNTHIA SOLTIS FOR A VARIANCE TO THE MAXIMUM SQUARE FOOTAGE ALLOWED FOR ACCESSORY STRUCTURES, PUBLIC HEARING CASE NO. V 98-2, BASED ON THE FOLLOWING FINDINGS: 1. LITERAL ENFORCEMENT OF THE ORDINANCE WILL CAUSE UNNECESSARY HARDSHIP IN THAT THE APPLICANTS WILL NOT BE ABLE TO PROPERLY TRAIN THEIR HORSES. 2. THE HARDSHIP IS CAUSED BY CONDITIONS UNIQUE TO THE PROPERTY BECAUSE OF THE ABUNDANCE OF WETLANDS. 3. LITERAL APPLICATION OF THE ORDINANCE WOULD DEPRIVE THE APPLICANTS OF RIGHTS ENJOYED BY OTHER PROPERTIES IN THE SAME DISTRICT IN THAT THERE ARE OTHER PROPERTIES IN THE DISTRICT WITH SIMILAR STRUCTURES. 4. THE VARIANCE WOULD NOT BE INJURIOUS OR ADVERSELY AFFECT THE HEALTH, SAFETY OR WELFARE OF THE RESIDENTS OF THE CITY OR THE NEIGHBORHOOD • WHERE THE PROPERTY IS LOCATED; WITH THE FOLLOWING CONDITION: 1. THE TWO LOTS OWNED BY THE APPLICANT, PID#' 75-106-1205 AND 75-106- 1210, BE COMBINED INTO ONE LOT WITH A TOTAL ACREAGE OF APPROXIMATELY 16.68 ACRES. COMMISSIONER KUESTER SECONDED THE MOTION. THE MOTION CARRIED 7-0. 3.3. Art Johnson Request for Front Yard Setback Variance, Public Hearing Case No. V 98-1 Staff report by Scott Harlicker. Art and Deborah Johnson have requested a variance to the minimum front setback for an accessory structure on his property located at 9956 153rd Avenue NW. The Johnson's are proposing to construct a 24' x 30' detached garage, twelve feet from the existing street right of way. Scott noted the proposed setback would be comparable to the neighbors' shed setback and the front yard setback of the neighbor's house. The applicants feel the location they have proposed for the garage will be the least obtrusive to the neighborhood. Staff does not believe an undue hardship has been shown because an alternative location is available and recommends denial of the request. • Chair Mesich opened the public hearing. Board of Adjustments Minutes March 24, 1998 Page 5 S Art and Deborah Johnson, applicants, explained their reasons why they cannot build the garage in the alternative location proposed by staff. There being no further comments from the public, Chair Mesich closed the public hearing. COMMISSIONER KUESTER MOVED TO DENY THE REQUEST BY ART JOHNSON FOR A FRONT YARD SETBACK VARIANCE, PUBLIC HEARING CASE NO. V 98-1, BASED ON THE FOLLOWING FINDING: 1. SINCE THERE IS AN ALTERNATE LOCATION WHICH MEETS THE SETBACK REQUIREMENT AND DOES NOT IMPACT THE EXISTING LANDSCAPING OR IRRIGATION SYSTEM,THE APPLICANT DID NOT SHOW THAT THE LITERAL ENFORCEMENT OF THIS ORDINANCE WOULD CAUSE UNDUE HARDSHIP. COMMISSIONER COTE SECONDED THE MOTION. THE MOTION CARRIED 7-0. 5. Adjournment There being no further business, COMMISSIONER KUESTER MOVED TO ADJOURN THE MEETING. COMMISSIONER THOMPSON SECONDED THE MOTION. THE MOTION CARRIED 7-0. The meeting of the Elk River Board of Adjustments adjourned at 7:55 p.m. • Respectfully submitted, 4 /'/ & Debbie Huebner Recording Secretary •