3.1. BASR 03-24-1998 *`
Item# 3.1.
ty of ' MEMORANDUM
lk •
River TO: Board of Adjustments
FROM: Steve Ach, City Planner
DATE: March 24, 1998
SUBJECT: 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 staff's
opinion the ordinance reads clearly and Cargill's request to construct a new
facility within the urban service area prior to the availability 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.
•
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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:
i. An application for a conditional use permit must be
submitted in accordance with the requirements set
forth in the Zoning Ordinance.
9.73
ii. Applicant enter into a developer' s agreement
410 stipulating the likelihood of the payment of future
assessments for city sewer and water.
iii. 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. All building improvements shall include
provisions for a timely hook up to city water and
sewer in accordance with applicable city code
requirement.
9.74
411 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, decision 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.
4Appeal. An appeal as specified in 3 (a) may be made by any
son (appellant) , including a city officer or employee,
• ected by action of the Building and Zoning Administrator. An
• eal may be made only following the transmission of a written
• ice of appeal which specifies the subject and grounds
• refor. Such notice must be received by the Building and
• ing Administrator within sixty (60) days following the
• uance of the order, requirement, decision or determination
• ch 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 dwelling
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
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DOHERTY 351)10 Fifth Street'lowers 21110 Minnesota World Trade Center 1401 New ler!.;Venue,\At,. 2370 One Tabor Center
131)South Fifth Street all Cast S..nth Street Suit• 15)1! 121➢)Suventeenth Street
RUMBLEMinneapolis,\I ne sot•; 55402-421; Saint ['dui,\linnesr,ta 55101-40`0 S.a•hingtun.D.C.21 o; U:river,Colorado 80202-3821
BUTLER Telephone bl_);;0;=i; Telephone 0,l 2i Telephone;1121 3'44-23:-4 ;10 i ).h'h0
l'AX(6122 340-3 384 FAX 01121_01`)313 FAX!=i12)14;-1131 1+)13)572-62i 1
ROPIISSIO\.AI.1ti"OU-ATIOA
•
Attorneys at Law Writer's direct dial nwnber: 340-5588 Reply to\tinnea polh.otfeo
Beckp @drblaw.com
December 3, 1997
Gregory A. Fontaine
Dorsey& Whitney
220 South 6th 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
PP g
a building permit for a proposed research facility north of 165t 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
iand a list of the owners of each property situated wholly or partly within 350 feet of the property to
DOHERTY
RUMBLE
tB V 1 LER Gregory A. Fontaine
PROFESSIONAL ASSOCIATION 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(0. Please call either the undersigned or Steve Ach if you
have any questions.
Since ly,
Peter K. Beck
PKB/eka
•
Enclosure
cc: Steve Ach
40
BeckP 538900.1
DORSEY & WHITNEY LLP
• MINNEAPOLIS PILLSBURY CENTER SOUTH NEW YORK
WASHINGTON,D.C. 220 SOUTH SIXTH STREET DENVER
LONDON MINNEAPOLIS,MINNESOTA 55402-1498
SEATTLE
BRUSSELS TELEPHONE: (612) 340-2600
FARGO
HONG KONG FAx: (612) 340-2868
DES MOINES BILLINGS
ROCHESTER MISSOULA
COSTA MESA GREAT FALLS
GREGORY A.FONTAINE
(612)340-8729
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 connection with the research project since it is a permitted use at its
proposed location.
•
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.
Very t4f yours,
•
• r
Grego, A. F.ntaine
GAF:gle
•
10/31/97 FRI 14:25 FAX 612 340 2807 DORSEY & WHITNEY [002
• DORSEY & WHITNEY LLP
NE"YO
Rx
MINN¢nPOLIS PILLSBURY CENTER SOUTH
wASHINGTON.D.C. 220 SOUTH SIXTH STREET DENVER.
LONDON MINNEAPOLIS.MINNESOTA 55402-1498 SEATTLE
DP.USSELS TELEPHONE:(612) 340-2600 pAR.GO
HONG KONG Fax: (612) 340-2868
BILLINGS
DES MOINES MISSONLA
ROCHESTER
GREAT FALL%
COSTA MESA CLEAT
FONTAI E
(612)WOMB
October 31, 1997
BY FACSIM
Mr. Steve Ach
City Planner
City of Elk River
13065 Orono Parkway
• P.O.Box 490
Elk River, MN 55330
Dear Mr. Ach:
This letter follows up on our several recent conversations. I am confirming
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
company'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 as set forth in Section 900.40(3).
You indicated last week that 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.
Ve •• y yo
am-
• Grego 'ontaine
GAF:rjo
of R River
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 like 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 Cargill's 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
this 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 application 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 like to appeal staffs interpretation
• that a conditional use permit would be required, then Section 900.40 should
be followed.
Sincerely,
ve c
City Planner
•
•
of rig •
River
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 R1a (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 165th , please resubmit the plans
along with the appropriate information and applications.
Sincerely,
S e c
City Planner
•
\\elkriver\sys\shrdoc\planning\cargill.doc
13065 Orono Parkway • P.O. Box 490 • Elk River, MN 55330 • TDD &Phone: (612)441-7420 • Fax: (612)441-7425