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4.3. PCSR 05-23-2023Request for Action To Item Number Planning Commission 4.3 Agenda Section Meeting Date Prepared by Public Hearings May 23, 2023 Chris Leeseberg, Senior Planner Item Description Reviewed by Jason Bye – 10208 209th Ave. NW Zack Carlton, Community Development Director Conditional Use Permit to Establish a Home-Based Reviewed by Business, Construction Yard, Case No. CU 23-11 Action Requested As the applicant has informed staff they are unable to attend the meeting, the commission is asked to review the request, provide questions/comments, open the public hearing for comments, and then continue, by motion, the public hearing to the June 27, 2023, Planning Commission meeting. The following conditions will be recommended for inclusion: 1. The fenced outdoor storage area shall be: a. Limited to 20,000 square feet. b. Fenced with a 6-7 foot tall 100% opaque fence with gates, to be closed when not in use. 2. The fenced outdoor storage area shall be relocated to the west of the detached accessory structure with no portion of it south of the southern elevation. See exhibit Proposed Contractor Yard Exhibit B. 3. The fenced outdoor storage area must be paved with an approved surface (Class 5, concrete, asphalt, or crushed concrete/asphalt). 4. The following shall be located within the fence outdoor storage area: a. All equipment, vehicles, and products related to the business. b. Garbage and recycling dumpsters. c. All business/employee parking. d. Portable outhouses. 5. Except for company vehicles and enclosed trailers, no materials or products can be stored higher than the top of the fence. 6. The hours of operation shall be limited to 7:00 a.m.-7:00 p.m. Monday through Saturday. 7. No portion of the building shall be used for business activities, such as, but not limited to, office/meeting/restroom space and storage. 8. Outside of routine maintenance/repair completed only by the property owner, there shall be no major repair/maintenance of company vehicles/equipment on site. Routine maintenance/repair shall only occur inside the building. The Elk River Vision A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and community engagement that encourages and inspires prosperity. Updated: January 2023 Background/Discussion The property is zoned Single Family Residential (R1-a) and is 13.34 acres in size. Home occupations located outside of a dwelling unit require a Conditional Use Permit (CUP). The applicant is currently operating a business from the residential property. After being notified they were required to obtain a CUP for a home occupation for their existing operation, the applicant applied for a CUP for an approximately 20,000 square foot construction yard/outdoor storage (yard) for their small wireless company, which is based out of Anoka. The yard will be used for company equipment and vehicles to be parked over the weekend when they are not being used on a jobsite. Materials will also be stored in the yard where employees will load and unload when preparing to leave for a jobsite or returning from a jobsite. They employ approximately 20 non-office workers who work out of town at various cell phone sites across the Midwest. They have four office staff in the Anoka location with no employees working on the subject site. The yard will also be a place where employees can park personal vehicles while they are away on a jobsite. The applicant has indicated up to 10 employees could be on site at a time with their vehicles parked for up to 2 weeks. They utilize several company trucks, 1 semi-truck, 3 enclosed trailers, 2 gooseneck trailers, 3 skid steers and 3 mini excavators that will be stored in the yard when not in use. There will also be occasional material deliveries that arrive in box trucks. The current yard is fenced in with a hard gravel surface. Recycling and garbage dumpsters are currently located outside of the fenced yard which will be used by employees to unload garbage and recycling items from jobsites. The purpose of the home occupation CUP process is to provide a means, through the establishment of conditions, by which home occupations can be conducted in residential neighborhoods without jeopardizing the residential character or health, safety, and general welfare of the surrounding neighborhood. The existing yard is located approximately 80-feet from a neighboring house and 65-feet from a garage. Staff would like the Planning Commission to discuss moving the yard to the west side of the detached building to provide adequate buffering from neighbors. See “Proposed Contractor Yard - Exhibit B” exhibit. The applicant informed staff that moving the yard to the west is not an option as his property grade rises significantly to the west and would require regrading of the entire property. Application Complete/Comment Letter In the letter sent to the applicant, staff shared suggested conditions of approval with the applicant. The applicant shared his responses (attached), and staff has adjusted some of the conditions based on the comments. Public Comments A resident in the area saw the public hearing in the paper and called staff with several questions and comments:  Why is an “industrial use” allowed in a residential district as a home occupation?  Semi-truck deliveries that stop on County Road 33 trying to locate the property and have been seen backing up on the road. No turn lane or bypass lane.  What precautions are being made for possible leaking fluids from numerous vehicles and equipment stored on the property continuously?  Multiple dumpsters are on site with trash blowing off the property.  Supplies, equipment, and junk are stored on the southern end of the parcel. Since speaking with the resident, they have submitted an email (attached) regarding the requested CUP. Staff spoke with another resident who expressed concerns with the among of noise on the property, the number of employees, and semi deliveries. Applicable Regulation In approving a Conditional Use Permit, the Council may impose such specific conditions with regard to the development or operation of the proposed use as it considers necessary to satisfy the seven standards set forth in section 30-654 and the requirements contained in this article and to promote compatibility with and minimize any potentially adverse effects upon adjacent properties, the neighborhood or the city. The issuance of a Conditional Use Permit can be ordered only if the use at the proposed location: 1. Will not endanger, injure or detrimentally affect the use and enjoyment of other property in the immediate vicinity or the public health, safety, morals, comfort, convenience or general welfare of the neighborhood or the city. The proximity of the yard to the neighboring house is of concern for the comfort and general welfare of the existing, and any future property owner. Is it reasonable to have the applicant relocate the yard to the west of the existing detached building, moving it away from the existing home? 2. Will be consistent with the comprehensive plan. The property is guided Rural Residential, to be developed as residential use in areas outside of the Urban Service Area that are not currently served by municipal sewer and water. Residential uses allow for Home Occupations, with some uses requiring a CUP, providing due process for the neighbors. The request is consistent with the Comprehensive Plan. Staff do not see a need to impose specific conditions to satisfy this standard. 3. Will not impede the normal and orderly development and improvement of surrounding vacant property. There is a 40-acre farm directly to the south and a 52-acre vacant parcel to the southeast that could be developed in the future. With conditions of approval, the use will not impede the normal and orderly development and improvement of surrounding vacant property. 4. Will be served adequately by and will not adversely affect essential public facilities and services including streets, police and fire protection, drainage, refuse disposal, water and sewer systems, parks, and schools; and will not, in particular, create traffic congestion or interference with traffic on adjacent and neighboring public thoroughfares. th The subject parcel has one access point from 209 Avenue; the use will be served adequately by and will not adversely affect essential public facilities and services including streets, police and fire protection, drainage, refuse disposal, water and sewer systems, parks, and schools. The use may create traffic congestion or interference with traffic on adjacent and neighboring public thoroughfares. 5. Will not involve uses, activities, processes, materials, equipment, and conditions of operation that will be detrimental to any persons or property because of excessive traffic, noise, smoke, fumes, glare, odors, dust or vibrations. The loading and unloading of equipment, garbage/recycling pickup, general equipment noise, and vehicle parking/circulation could be detrimental, especially with the yard located so close to the neighboring house. The recommended conditions should address these concerns. 6. Will not result in the destruction, loss, or damage of a natural, scenic or historic feature of major importance. Even if the yard is required to be relocated, the use will not result in the destruction, loss, or damage of a natural, scenic, or historic feature of major importance. Staff do not see a need to impose specific conditions to satisfy this standard. 7. Will fully comply with all other requirements of this Code, including any applicable requirements and standards for the issuance of a license or permit to establish and operate the proposed use in the city. If any portion of the accessory structure is to be for commercial business/use, in any capacity at all, it will require an amendment to the Conditional Use Permit. This was noted on the applicant’s site plan with the building permit for the accessory structure. The recommendation of “no business uses in the structure” is being made as the building was not reviewed as part of this application. The applicant has indicated the structure is just for personal use. If the building is to be used for business purposes, which they can request, the structure may need to meet commercial requirements and possibility require an architect. The applicant has stated it is his personal shop and has every right to work on his own trucks and equipment. This is correct if he is referring to personal, non- business vehicles. All other requirements and standards, such as noise, dust, and lighting will need to comply with the city code. If denial of such a permit should occur, it shall accompany recommendations or determinations by findings or a report stating how the proposed use does not comply with the standards set forth in Section 30-654. Attachments  Location Map  Applicant’s Narrative  Applicant’s Site Plans  Aerial Photo with Dimensions  Responses to Comment Letter  Existing Contractor Yard - Exhibit A  Proposed Contractor Yard - Exhibit B  Resident Email  Site Photos  Code Enforcement Letter We hereby propose the approval of this Conditional Use Permit for our property located at 10208 209th Ave NW, Elk River MN 55330. We would like to establish a construction yard at our personal shop located on our property. We own and operate a small wireless company out of Anoka, MN. This company is jointly owned with Scott Rothmeyer of Anoka, MN. Our legal business address and main shop is located at 19041 Alpaca St NW, Anoka, MN 55303. We also have leased office space in Elk River, MN where our office staff work when they are not working from home. We employ approximately 20 non-office workers and 4 office staff. Non-office employees work out of town at various cell phone sites across the Midwest. Employees will not be working at our shop location. We are trying to establish a small secondary yard with no company signage where the company equipment and vehicles can be parked over the weekend when they are not being used on a jobsite. The yard will also be a place where the employees can park their personal vehicles during the week while they are away on a jobsite. We have materials in the yard that employees will also load and unload when preparing to leave for a jobsite or returning from a jobsite. We have several company trucks, 1 semi-truck, 3 enclosed trailers, 2 gooseneck trailers, 3 skid steers and 3 mini excavators that will be parked in the yard when not in use. There will also be occasional material deliveries that arrive in box trucks. We also have recycling and garbage dumpsters located outside in the fenced yard which will be used by employees to unload garbage and recycling items from jobsites. The parking yard is fenced in with a hard gravel surface that is graded to shed water. All city noise ordinances will be followed as to not disturb our neighbors. May 8, 2023 Jason and Nicole Bye VIA EMAIL: jason@rothmeyertec.com 10208 209th Ave NW Elk River, MN 55330 RE: Conditional Use Permit Application Complete Dear Mr. and Mrs. Bye: Thank you for your application for a Conditional Use Permit (CUP) to operate a Home Occupation (Contractors Yard) located at the address listed above. I will be reviewing your application and preparing the staff report for the Planning Commission and City Council. On April 26, 2023, the city received your application for the above use. Per Minnesota State Statute §15.99, the city is required to decide within 60 days of receipt of the completed application. Subd. 3 of that section requires the city to notify an applicant within 15 business days if information is missing, delaying the start of the 60-day review period. A city may extend the 60-day review period up to 120 days to complete the review. With the receipt of the required materials on April 26, 2023, the application for a CUP has been deemed complete, and the 60-day review period starts. This application has been assigned Case Number CU 23-11 and is scheduled to be reviewed by the Planning Commission on May 23, 2023, at 6:30 p.m. at the Elk River City Hall, 13065 Orono Parkway. With a Planning Commission recommendation on that date, the City Council will review your application June 20, 2023. The purpose of this process is to provide a means, through the establishment of conditions, by which home occupations can be conducted in residential neighborhoods without jeopardizing the residential character or health, safety, and general welfare of the surrounding neighborhood. Staff conducted a thorough site plan review on May 1, 2023, and has the following questions and comments: 1. What are the hours of operation? 7am to 7pm 2. What is the maximum number of employees that will be on site at one time? 10 3. Are employee vehicles being parked on site for extended periods of time? Typically they are parked Monday thru Friday, there are times when 1 or 2 may be here for 2 weeks depending on job location. There is typically 4-6 employ vehicles here during the week. 4. Suggested conditions of approval discussed are as follows: a. The fenced outdoor storage area shall be: i. Limited to 125’ x 135’ (16,875 sqft) See attached, the fence is already installed and is approx. 165ft x 120ft ii. Fenced with a 6-7 foot tall 100% opaque fence with gates, to be closed when not in use. b. The fenced outdoor storage area must be paved with an approved surface, Class 5, concrete, asphalt, or crushed concrete/asphalt. Area is paved with class 5 material c. The following shall be located within the fence outdoor storage area: i. All equipment, vehicles, and products related to the business. ii. Garbage and recycling dumpsters. iii. All business/employee parking. d. The hours of operation shall be limited to 7:00 a.m.-7:00 p.m. Monday through Saturday. e. No portion of the building shall be used for the business, such as, but not limited to, office/meeting/restroom space, storage, and/or equipment repair/maintenance. This is my personal shop and I have every right to work on my own trucks and equipment. I do not have mechanics working here but I do small repairs and maintenance myself when needed f. No product can be stored higher than the top of the fence. This is impossible as any truck or enclosed trailer is taller than 6ft . Materials are under 6ft g. There shall be no repair or maintenance of company vehicles/equipment on site.Again this is my personal shop and I have every right to work on my own trucks and equipment. I am not a mechanic or do I do large scale repairs 5. To provide adequate buffering from neighbors, there will be discussion about relocating the outdoor storage area to the west of the detached accessory structure with no portion of it south of the southern elevation. Moving the yard to the west is not an option, my property grade rises significantly going to the west. This would require an extreme regrading of this entire property, this would also move everything right into view for everyone travelling on CR33 making an eyesore. Once I complete the fence and gates no one will be able to see into the yard. I have talked with Steve and Mary the property owners to my East and they are complexly fine with where the yard is already located. I will talk to them this week in regards to drafting a letter regarding that. Please submit requested information, as indicated above, by May 12, 2023. If the city staff does not receive the requested information by that date, we will delay your application. Please let me know if you have any questions. Sincerely, Chris Leeseberg, Senior Planner Ph: 763.635.1033 cleeseberg@ElkRiverMN.gov From:To:Leeseberg, Chris Subject:10208 209th Ave NW CU23-11 Date:Wednesday, May 17, 2023 9:05:47 PM Attachments:City of ER Current Outdoor Storage graphic.png City of ER Permit graphic.png Chris Leeseberg, I am writing in regards to the public hearing of the Planning Commission and also the City Council for stated address (10208 209th Ave NW) to "establish" a home business. I give my consent and permission to share this email and the attachments of City of Elk River charts, with all members of the Planning Commission and City Council ahead of each meeting so an informed decision can be made. First I want to address the use of the word ESTABLISH in the public notifications. This address has been running an unlicensed full fledged business for multiple years already. Also I'd like to address the phrase "construction yard" which equates to outdoor storage. There is FAR more going on at that location than a construction yard. Lets address this location. 209th Ave NW is County Road 33, this residence is approximately 2 miles east of Hwy 169. It is a very busy residential county road with little to no shoulder. What shoulder is there consists of gravel. This homeowner, on a regular basis has semi trucks, large commercial box trucks, roll-off and dumpster trash trucks entering the location. I personally have witnessed 2 occasions (one I have video taped) where lost semi drivers have STOPPED on CTY RD33 and backed up AGAINST traffic in a hazardous manner to enter their driveway. CTY RD33 is not equipped with turn lanes or bypass lanes to accommodate commercial traffic in and out of their residential driveway. POLLUTION; Light, noise and trash. This unlicensed operation utilizes bright flood lights (on the south & north) outside at all hours of the night. That light pollution spills into all adjoining properties especially given their 80 foot proximity to neighborhood next door. Noise, heavy equipment is running in the evening and during daylight hours scraping the ground to make paths for entering commercial trucks and off loading deliveries with skid steers. Also in the winter there is large equipment idling before usage. The trailers loaded with equipment, coming in and out, clang and bang along this dirt filled location. Trash, physical trash from rolls offs and dumpster boxes are flying into neighboring private property on a regular basis. Their fencing is NOT containing their trash. ADDITIONALLY, they have excess construction junk spreading beyond their fence. Please reference photographs of this external junk piles in the possession of the code enforcement officer. The pictures document stacked up construction junk spanning the exterior length of the fences south side, which is visible from neighborhood cul-de-sac. ALSO there is an equally large pile of construction equipment, parts and pieces accumulating in residents SW corner along the tree line. All documented in photos. Employee activity at the location is DAILY. This is not only commercial deliveries, equipment entering & leaving but also employees arriving, parking and entering the polebarn where they stay inside for a full work day and then leave. Also, vehicles are parked for days or weeks (probably for construction projects) however the presence of those long-term vehicles is admission of another business operating there. Construction yards are equipment storage not personal property storage. Construction projects are bid and built by construction COMPANIES not construction yards. What business beside this "construction yard" resides inside the polebarn? The semis that arrive are off loaded and contents are brought directly inside the polebarn. I have photographs. Pull the permit on that polebarn. Look at it's dimensions. It's a huge "T" shaped structure. From CR33 you can see this building. One leg of the building has multiple chest high windows and a completely separate entry doorway facing CR33, similar to an office space. The other leg of the "T" has commercial size overhead garage doors, one facing CR33 the other facing the fenced area. Trucks and equipment from the fenced area routinely enter that back overhead door into the polebarn and do NOT exit towards CR33. What about watershed issues associated with a construction yard/outdoor storage? With large equipment, trailers, trucks etc leaking gas, diesel and oil into the ground. All the houses surrounding this location have private wells that would be affected and suffer do to run-off. My over arching question is, WHY in the world is this type of business even being considered in a zoned residential area? The City of Elk Rivers own website has charts that spell out what types of Permits are allowed in certain areas. See the chart I've included from the City of Elk River website "What Permit is Needed". The designation across the top OUTDOOR STORAGE is not allowed in any of the residential designations shown on the left of the graphic (also not allowed are Warehouse, Truck Terminal, Salvage Yard all being practiced by this homeowner). In fact, the ONLY place Elk River permits Outdoor Storage (in yellow) is Business Park, Commercial or Industrial zones. In red USE NOT ALLOWED in residential. To further illustrate this point see the chart I also included from The City of Elk Rivers website "ZONING MAP OUTDOOR STORAGE". This graphically maps out streets with areas in shades of purple, blue, yellow and red where outdoor storage currently is. Please note, not ONE shaded area is in a residential zone. This resident has already demonstrate for years, they will act as they please and ask for forgiveness later once caught. They didn't establish a CUP before engaging in business, and didn't permit their over 6 foot fence. They are acting like a bull in the china shop in an established residential area. They have already spilled construction supplies, pieces, parts and junk beyond the fence line and along the woods. With 13 acres they have shown they can and will drop junk as they please with out regard to city code or the neighbors. The peacefulness, beauty and property values are suffering. It appears the owners are taunting the City of Elk River to a game of "catch me if you can". Construction yard as a "business" is a somewhat of an oxymoron. A business by definition generates income from products or services. How is this yard generating income? What businesses are utilizing this yard? How many companies rent space there? How many businesses do Nicole & Jason Bye have listed in their names? Which business takes deductions on the polebarn? How many metered services does Elk River Utilities show for this address and is the monthly usage in line with neighboring residents who have outbuildings? What do the electrical inspections show on this approximately 2.5 year old building and its building permit What was listed as its use? How many and what are the location of heavy duty outlets and heavy duty breakers listed in the inspection? This will give you a picture of the buildings intended use. What is the business name that carries the insurance of everything parked in this so called construction yard? Additionally, in 1965 Congress (Federal) enacted regulation to control junkyards. In 1971 Minnesota State Legislature pass MN Statute 161.242 that also established guidelines to control junkyards. This location is 13 acres, the homeowners are already showing they will dump equipment, pieces, parts and junk as they please far beyond the fence. It is approaching a point that a call to the State or Federal government in regards to junkyard regulations is approaching for this location. Please take the time to look at permits, lack of permits, inspections, established permit guidelines and drive past this place on CR33. See what is happening there. Take the time to go into the neighborhood via Hoover St and turn right on 128th to the cul-de-sac. That will take you right to the edge of their property. Look at the junk piled there, look at the unpermitted fence, it seems higher that 6 feet. Look at what the neighbors are having to see and put up with. Also review the file compiled by Gram Shultz, Code Enforcement and the pictures he has regarding this location. I also have many photos that I am willing to share. The City of Elk Rivers website charts & map attest to the fact that this business should not be located within residential zoning. Why set a precedent that could harm all residentially zoned residents into the future? Allowing this exception could trigger an avalanche of requests by other small business owners wanting to save money by ditching their commercial or industrial location in favor of having their equipment parked & run out of their homes. Thank you for your time and consideration, ~At this time I will not be signing my name for safety and security reasons. I am in close enough proximity that I can clearly see this operation and I received the USPS letter from the city referencing Case No. CU23-11. If you want more information, to visit my location or talk directly with me you can gain that information from Chris L.