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9.1. SR 09-20-1993 rll -\) ( )j ftk ITEM 9.1 FROM: MAYOR AND CITY COUNCIL STEVEN B. ACH, CITY PLANNE~~~ TO: DATE: SEPTEMBER 20, 1993 SUBJECT: CONDITIONAL USE PERMIT REQUEST BY MARK PALMER/PUBLIC HEARING, CASE NO. CU 93-18 BACKGROUND At the August 16, 1993, City Council meeting an issue arose relevant to Mr. Palmer's residence being a duplex and the implication this may have on his request for a conditional use permit. The City Council tabled Mr. Palmer's request and directed staff to research whether a conditional use permit can be issued to a duplex. ANALYSIS e Upon further review, staff has determined that the existing residence is a duplex, which is referenced in the zoning ordinance as a two family dwelling. The residence has separate entrances, cooking facilities, driveways, utilities, and addresses, all of which constitute separate dwelling units. Given the determination that the residence is a two family dwelling in an RIa (Single Family Residential) zoning district, the following issues apply: Present use is a legal, non-conforming use in the RIa zoning district. Home occupations are only allowed in single family dwellings. DUPLEX AS LEGAL NON-CONFORMING USE The residence has been a duplex prior to the adoption of the City's ordinance. Therefore, the use can continue so long as it is not enlarged or extended. HOME OCCUPATION IN SINGLE FAMILY ONLY e The City's Zoning Ordinance specifically allows home occupations as either permitted or conditional uses in the RI (Single Family Residential) districts. However, in the R2a (Townhouse), R2b (Townhouse and Multi Family Residential), and R3 (Townhouse and Multi Family Residential) districts home occupations are specifically permitted or conditional in single family dwellings only. By stating "single family" it is clearly the intent of the Zoning ordinance not to allow home occupations in dwellings other than single family residences. Therefore, even if Mr. Palmer's residence was properly zoned, a P.O. Box 490 · 13065 Orono Parkway · Elk River, MN 55330 · (612) 441-7420 · Fax: (612) 441-7425 e e e Mark Palmer, CUP September 20, 1993 Page 2 ------------------ conditional use permit for a home occupation could not be issued. RECOMMENDATION In conclusion, Mr. Palmer's residence is a non-conforming two family dwelling in an R1a zoning district. The home occupation ordinance does not allow two family dwellings to operate home occupations. Therefore, staff is recommending this application be denied based on: 1. THE ZONING ORDINANCE DOES NOT ALLOW NON-CONFORMING USES TO BE ALTERED, EXPANDED, OR ENLARGED. 2. THE ZONING ORDINANCE DOES NOT ALLOW TWO FAMILY DWELLINGS TO OPERATE HOME OCCUPATIONS. r-C; -'\) ( ); fIi{ -e e 1 ) .J.rEM 6.1 ({P({));jQ)fj' TO: MAYOR AND CITY COUNCIL FROM: STEVEN B. ACH, CITY PLANNER~ DATE: AUGUST 12, 1993 SUBJECT: A CONDITIONAL USE PERMIT REQUEST BY MARK PALMER/PUBLIC HEARING, CASE NO. 93-18 PROPOSED LOCATION 957 Main Street, Elk River, MN (southeast corner of Main Street and Morton Avenue). OVERVIEW Mr. Palmer is requesting a conditional use permit to operate a home occupation that involves a mail order business of firearms. Specifically, Mr. Palmer needs a conditional use permit because ordered firearms for customers will be delivered to Mr. Palmer's residence by United Parcel Service. Technically, if the business was conducted strictly by mail without delivery of merchandise, a conditional use permit would not be required. A Federal Firearms License from the Alcohol, Tobacco, and Firearms Bureau has been issued to Mr. Palmer. This Federal license permits Mr. Palmer to buy and sell firearms as a business or for personal pleasure. At the request of Councilman Farber, I've attached a copy of a section from the Federal Firearms Regulation Manual relating to issuance of license (see Attachment A). On the other hand, the City presently does not have any licensing requirements for the sale of firearms; however, recently legislation was passed allowing cities to regulate the location of business that sell firearms (see Attachment B). Staff has reviewed this application in accordance with Section 900.25 regarding home occupations and Section 900.42, conditional use permits (see Attachment C).If Mr. Palmer is to conduct his home occupation according to his letter and conditions set forth by the Planning Commission, all ordinance criteria for granting a permit will be satisfied. However, any deviation from the proposed low profile and limited number of customers would be grounds to reconsider the conditional use permit would be necessary. HOME OCCUPATION ORDINANCE The specific section that applies to Mr. Palmer's request is 900.25 (3)(j). This particular paragraph has been structured such that there remains room for misinterpretation. Based on previous applications and past interpretation, the paragraph P.O. Box 490 · 13065 Orono Parkway · Elk River, MN 55330 · (612) 441-7420 · Fax: (612) 441-7425 e e e \ Page 2 CUP, Mark Palmer August 12, 1993 does not prohibit wholesale or retail businesses as home occupations. Wholesale and retail businesses are prohibited as permitted home occupations, therefore, a conditional use permit is required. Prohibited activities are clearly outlined in 900.25 (2). Attached is staff's report to the Planning Commission outlining the details of the application. OPTIONS FOR CITY COUNCIL ACTION Attached is a memo from Peter Beck outlining some options the City Council has to take action on Mr. Palmer's request. PLANNING COMMISSION RECOMMENDATION The Planning Commission unanimously recommended approval of the conditional use permit for Mr. Palmer with the following conditions: 1. THERE SHALL BE NO INVENTORY OF FIREARMS KEPT ON SITE THAT ARE INTENDED FOR SALES. 2. NO MORE THAN ONE CUSTOMER VEHICLE BE PRESENT ON SITE AT A GIVEN TIME AND NO MORE THAN ONE CUSTOMER VEHICLE PER HOUR. 3. 900.25(3) ALL STANDARDS MENTIONED IN SECTION REGARDING HOME OCCUPATIONS BE FOLLOWED. 4. THE CITY COUNCIL REVIEW THIS CONDITIONAL USE PERMIT IN SIX (6) MONTHS FOR APPLICANTS COMPLIANCE WITH CONDITIONS AND ANY COMPLAINTS RELATING TO THE BUSINESS OPERATION. 5. CUSTOMER HOURS SHALL BE LIMITED TO 9 A.M. TO 9 P.M., MONDAY THROUGH SATURDAY. 6. DUE TO THE NATURE OF THE BUSINESS, NO EXTERIOR SIGNAGE WILL BE PERMITTED. 7. ANY CHANGE IN BUSINESS OPERATION OTHER THAN STRICTLY MAIL ORDER SHALL REQUIRE REVIEW BY THE CITY COUNCIL. 8. NO FIREARM ACCESSORY ITEMS INCLUDING BUT NOT LIMITED TO AMMUNITION, MAY BE SOLD ON-SITE. 9. REMOVE ALL OUTSIDE STORAGE AND MISCELLANEOUS EQUIPMENT ASSOCIATED WITH THE APPLICANT'S CONTRACTOR BUSINESS. ~ 178.32 Prohibited shipment, transporta- tion, possession, or receipt of firearms and ammunition by certain persons. -(a) No person may ship or transport any "arm or ammunition in interstate or foreign commerce, or receive any firearm or ammuni- tion which has been shipped or transported in interstate or foreign commerce, or possess any firearm or ammunition in or affecting commerce, who: (1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year; (2) Is a fugitive from justice; (3) Is an unlawful user of or addicted to any controlled substance (as defined in sec- tion 102 of the Controlled Substance Act, 21 U.S.C. 802); (4) Has been adjudicated as a mental defective or has been committed to a mental institution; (5) Is an alien illegally or unlawfully in the United States; (6) Has been discharged from the Armed Forces under dishonorable conditions; or (7) Having been a citizen of the United States, has renounced citizenship. [~922(g)] (b) No person who is under indictment for a crime punishable by imprisonment for a term exceeding one year may ship or trans- port any firearm or ammunition in interstate or foreign commerce or receive any firearm or ammunition which has been shipped or trans- _ed in interstate or foreign commerce. .2 (n)] (c) Any individual, who to that individual's knowledge and while being employed by any person described in paragraph (a) of this section, may not, in the course of such employment receive, possess, or transport any firearm or ammunition in commerce or affecting commerce or receive any firearm or ammunition which has been shipped or trans- ported in interstate or foreign commerce. [9922(h)] (d) No person may sell or otherwise dis- pose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person: (1) Is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding 1 year; (2) Is a fugitive from justice; (3) Is an unlawful user of or addicted to any controlled substance (as defined in sec- tion 102 of the Controlled Substances Act, 21 U.S.C. 802); (4) Has been adjudicated as a mental defective or has been committed to a mental institution; (5) Is an alien illegally or unlawfully in the United States; (6) Has been discharged from the Armed Forces under dishonorable conditions; or .) Having been a citizen of the United ~ es, has renounced citizenship. m922(d)] (T.O. ATF.241. 51 FA 39617, Oct 29. 1986J 28 " ~ 178.33 Stolen firearms and ammunition. No person shall transport or ship in inter- state or foreign commerce any stolen firearm or stolen ammunition or pledge or accept as security for a loan any stolen firearm or ammunition knowing or having reasonable cause to belive that the firearm or ammunition was stolen, and no person shall receive, conceal, store, barter, sell, or dispose of any stolen firearm or stolen ammunition which is moving as, which is a part of, or which constitutes interstate or foreign commerce, knowing or having reasonable cause to be- lieve that the firearm or ammunition was stolen [~922(i),Gl] ~178.34 Removed, obliterated, or al- tered serial number. No person shall knowingly transport, ship, or receive in interstate or foreign commerce any firearm which has had the importer's or manufacturer's serial number removed, oblit- erated, or altered. [9922(k)] ~ 178.35 Skeet, trap, target, and similar shooting activities. Licensing and record keeping require- ments, including permissible alternate re- cords, for skeet, trap, target, and similar organized activities shall be determined by the regional director (compliance) on a case by case basis. ~ 178.36 Transfer or possession of ma- chlneguns. No person shall transfer or possess a machinegun except: (a) A transfer to or by, or possession by or under the authority of, the United States, or any department or agency thereof, or a State, or a department, agency, or political subdivi- sion thereof (See Part 179 of this chapter); or (b) Any lawful transfer or lawful posses- sion of a machinegun that was lawfully pos- sessed before May 19, 1986 (See Part 179 of this chapter). [9922(0)] [T.O. AFT.241 , 51 FA 39618, Ocl. 29. 19861 ~ 178.37 Manufacture, Importation and sale of armor piercing ammunition. No person shall manufacture or import, and no manufacturer or importer shall sell or deliver, armor piercing ammunition, except: (a) The manufacture or importation, or the sale or delivery by any manufacturer or importer, of armor piercing ammunition for the use of the United States or any department or agency thereof or any State or any depart- ment, agency or political subdivision thereof; (b) The manufacture, or the sale or deliv- ery by a manufacturer or importer, of armor piercing ammunition for the purpose of expor- tation; or (c) The sale or delivery by a manufacturer or importer of armor piercing ammunition for the purposes of testing or experimentation as authorized by the Director under the provi- sions of 9 178.149. [9922(a)(7),(8)] [T.O. ATF.247, 52 FA 2049, Jan. 16. 19871 ~ 178.38 Transportation of firearms. Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chap- AT~ACHMENT A ter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where such person may lawfully possess and carry such firearm to any other place where such person may lawfully possess and carry such firearm if, during such transportation the fire- arm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammuni- tion shall be contained in a locked container other than the ent or co IT.Ol;.270, 53 FA 10480, Mar. 31, 19881 ~ Subpart D-~icenses ~ 17 .41 General. (a ac person In ending to engage in business as an importer or manufacturer of firearms or ammunition, or a dealer in fire- arms, shall, before commencing such busi- ness, obtain the license required by this subpart for the business to be operated. Each person who desires to obtain a license as a collector of curios or relics may obtain such a license under the provisions of this subpart. (b) Each person intending to engage in business as a firearms or ammunition import- er or manufacturer, or dealer in firearms shall file an application, with the required fee (see 9 178.42), with A TF in accordance with the instructions on the form (see ~ 178.44), and, pursuant to 9 178.47, receive the license required for such business from the regional director (compliance). Except as provided in ~ 178.50, a license must be obtained for each business and each place at which the applicant is to do business. [Also, see 9 178.100.] A license as an importer or manufacturer of firearms or ammunition, or a dealer in firearms shall, subject to the provisions of the Act and other applicable provisions of law, entitle the licensee to transport, ship, and receive firearms and ammunition covered by such license in interstate or foreign com- merce and to engage in the business speci- fied by the license, at the location described on the license, and for the period stated on the license. However, it shall not be necessary for a licensed importer or a licensed manufacturer to also obtain a dealer's license in order to engage in business on the licensed premises as a dealer in the same type of firearms authorized by the license to be. imported or manufactured. Payment of the license fee as an importer or manufacturer of destructive devices, am- munition for destructive devices or armor piercing ammunition or as a dealer in destruc- tive devices includes the privilege of import- ing or manufacturing firearms other than de- structive devices and ammunition for other than destructive devices or ammunition other than armor piercing ammunition, or dealing in "",\,~.:.:,..". ';,,.....1';' ."".;:.....,.~. .,- e firearms other than destructive devices, as the case may be, by such a licensee at the licensed premises. [~923(a),(c). See, also, A TFR 73-9, Common expiration date for licensees.] (c) Each person seeking the privileges of a collector licensed under this part shall file an application, with the required fee (see ~ 178.42), with A TF in accordance with the instructions on the form (see ~ 178.44), and, pursuant to ~ 178.47, receive from the region- al director (compliance) the license covering the collection of curios or relics. A separate license may be obtained for each collection premises, and such license shall, subject to the provisions of the Act and other applicable provisions of law, entitle the licensee to transport, ship, receive, and ac- quire curios and relics in interstate or foreign commerce and to make disposition of curios and relics in interstate or foreign commerce, to any other person licensed under the provi- sions of this part, for the period stated on the license. [~923(b)] (d) The collector license provided by this part shall apply only to transactions related to a collector's activity in acquiring, holding or disposing of curios or relics. A collector's license does not authorize the collector to engage in a business required to be licensed under the Act or this part. Therefore, if the acquisitions and dispositions of curios and relics by a collector bring the collector within the definition of a manufactur- er, importer, or dealer under this part, he shall qualify as such. (See also ~ 178.93 of this part.) ~ 178.42 Ucense fees. Each applicant shall pay a fee at a yearly rate for obtaining a firearms license or ammu- nition license, a separate fee being required for each business or collecting activity at each place of such business or activity, as follows: (a) For a manufacturer: (1) Of destructive devices, ammunition for destructive devices or armor piercing am- munition - $1,000 per year. (2) Of firearms other than destructive de- vices - $50 per year. (3) Of ammunition for firearms other than ammunition for destructive devices or armor piercing ammunition - $10 per year. (b) For an Importer: (1) Of destructive devices, ammunition for destructive devices or armor piercing am- munition - $1,000 per year. (2) Of firearms other than destructive de- vices or ammunition for firearms other than destructive devices or ammunition other than armor piercing ammunition - $50 per year. (c) For a dealer: (1) In destructive devices - $1,000 per year. (2) Who is a pawnbroker dealing in fire- arms other than destructive devices - $25 per year. (3) Who is not a dealer in destructive devices or pawnbroker - $10 per year. e e ) (d) For a collector of curios and relics: - $10 per year. [9923(a)-(c). See, also, ATFR 73-9, Common expiration date for licens- ees.] [T.D ATF.135, 48 FR 24067, May 31,1983; T.D. "TF.247, 52 FR 2049, Jan. 16, 1987) ~ 178A3 license fee not refundable. No refund of any part of the amount paid as a license fee shall be made where the operations of the license are, for any reason, discontinued during the period of an issued license, However, the license fee submitted with an application for a license shall be refunded if that application is denied or with- drawn by the applicant prior to being acted upon. ~ 178.44 Original license. (a) Any person who intends to engage in business as a firearms or ammunition import- er or manufacturer, or firearms dealer, or who has not previously been licensed under the provisions of this part to so engage in busi- ness, or who has not timely submitted an application for renewal of the previous license issued under this part, shall file an application for license, ATF Form 7 (Firearms), with ATF in accordance with the instructions on the form. The application must be executed un- der the penalties of perjury and the penalties imposed by 18 U.S.C. 924. The application shall be accompanied by the appropriate fee in the form of money order or check made payable to the Bureau of Alcohol, Tobacco and Firearms. ATF Forms 7 (Firearms) may be obtained from any A TF office. (b) Any person who desires to obtain a license as a collector under the Act and this part, or who has not timely submitted an application for renewal of the previous license issued under this part, shall file an applica- tion, ATF Form 7 (Firearms) with ATF in accordance with the instructions on the form.The application must be executed under the penalties or perjury and the penalties imposed by 18 U,S.C. 924. The application shall be accompanied by the appropriate fee in the form of a money order or check made payable to the Bureau of Alcohol, Tobacco and Firearms. A TF Form 7 (Firearms) may be obtained from any ATF office. [18 U.S.C. 926 (82 Stal1226)] [T.D. ,,".200,48 FA 24067, May 31,1983; T.D. "TF.241, 51 FR 39618, Oct 29, 1986] ~ 178.45 Renewal of license. If a licensee intends to continue the busi- ness or activity described on a license issued under this part during any portion of the ensuing year, the licensee shall, unless other- wise notified in writing by the regional director (compliance), execute and file prior to the expiration of the license an application for a license renewal, ATF Form 8 Part II, accom- panied by the required fee, with ATF in accordance with the instructions on the form. The regional director (compliance) may, in writing, require the applicant for license re- newal to also file completed A TF Form 7 in the manner required by ~ 178.44. In the event the licensee does not timely file an ATF Form 8 Part II, the licensee must file an A TF Form 7 as required by 9 178.44, and obtain the required license before con- ) tinuing business or collecting activity. If an A TF Form 8, Part II is not timely received through the mails, the licensee should so notify the regional director (compliance). (18 U.s.C. 926 (82 Stal' 226)) [T.D. "".200, 48 FA 24067, M8Y 31,1983; T.D. ,,".241, 51 FR 39619, Oct 29, 1966) ~ 178.46 Insufficient fee. If an applicant is filed with an insufficient fee, the application and any fee submitted will be returned to the applicant. (18 u.s.c. 847 (84 Stal 959); 18 U.S.C. 926 (82 Sta1.1226)) [T.D. "TF-200, 50 FR 10498, M8r. 15, 1985) ~ 178.47 Issuance of license (a) Upon receipt of a properly executed application for a license on ATF Form 7, or ATF Form 8 Part II, the regional director (compliance) shall, upon finding through fur- ther inquiry or investigation, or otherwise, that the applicant is qualified, issue the appropri- ate license. Each license shall bear a serial number and such number may be assigned to the licensee to whom issued for so long as the licensee maintains continuity of renewal in the same location (State). (b) The regional director (compliance) shall approve a properly executed application for license on ATF Form 7, or ATF Form 8 Part II, if: (1) The applicant is 21 years of age or over; (2) The applicant (including, in the case of a corporation, partnership, or association, any individual possessing, directly or indirect- ly, the power to direct or cause the direction of the management and policies of the corpo- ration, partnership, or association) is not pro- hibited under the provisions of the Act from shipping or transporting in interstate or for- eign commerce, or possessing in or affecting commerce, any firearm or ammunition, or from receiving any firearm or ammunition which has been shipped or transported in interstate or foreign commerce; (3) The applicant has not willfully violated any of the provisions of the Act or this part; (4) The applicant has not willfully failed to disclose any materia[ information required, or has not made any false statement as to any material fact, in connection with his applica- tion; (5) The applicant has in a State: (I) Premises from which he con- ducts business subject to license un- der the Act or from which he intends to conduct business within a reasonable period of time; or (II) In the case of a collector, prem- ises from which he conducts his col- lecting subject to license under the Act or from which he intends to conduct such collecting within a reasonable period of time. [g923(d)(1)] (c) The regional director (compliance) shall approve or deny an application for license within the 45-day period begining on the date the application was received: Provided, That when an applicant for license renewal is a person who is, pursuant to the provisions of 9 178.78, 9 178.143, or 9 178.144, conducting business or collecting 29 _.~.~:;"~..'. Jt.........>~.__~<....._ ____...~.. -- ) activity under a previously issued license, action regarding the application will be held in abeyance pending the completion of the proceedings against the applicant's existing license application, final determination of the 'applicant's criminal case, or final action by the Director on an application for relief sub- mitted pursuant to 9 178.144, as the case may be. (d) When the regional director (compli- ance) fails to act on the application for license within the 45-day period prescribed by para- graph (c) of this section, the applicant may file an action under section 1361 of the title 28, United States Code, to compel the regional director (compliance) to act. [9923(d)(2)] ~ 178.48 Correction of error on license. (a) Upon receipt of a license issued under the provisions of this part, each licensee shall examine. same to ensure that the information contained thereon is accurate. If the license is incorrect, the licensee shall return the license to the regional director (compliance) with a statement showing the nature of the error. The regional director (compliance) shall correct the error, if the error was made in his office, and return the license. However, if the error resulted from information contained in the licensee's application for the license, the regional director (compliance) shall require the licensee to file an amended application setting forth the correct information and a statement explaining the error contained in the application. Upon receipt of the amended application and a satisfactory explanation of the error, the regional director (compliance) shall make the correction on the license and return same to the licensee. (b) When the regional director (compli- ance) finds through any means other than notice from the licensee that an incorrect license has been issued, the regional director (compliance) may require the holder of the incorrect. license to: (1) Return the license for correction, and (2) If the error resulted from information contained in the licensee's application for the license, the regional director (compliance) shall require the licensee to file an amended application setting forth the correct informa- tion, and a statement explaining the error contained in the application. The regional director (compliance) then shall make the correction on the license and return. same to the licensee. ~ 178.49 Duration of license. The license entitles the person to whom issued to engage in the business or activity specified on the license, within the limitations of the Act and the regulations contained in this part, for a three year period, unless terminated sooner. [See, also, A TFR 73-9, Common expiration date for licenses,] [T.D. ATF.135. 48 FR 24068, May 31,1983 T.D. ATF.241. 51 FA 39619, Oct. 29, 1986) ~ 178.50 Locations covered by license. The license covers the class of business or the activity specified in the license at the address specified therein. A separate license must be obtained for each location at which a firearms or ammunition business or activity 30 ) requiring a license under this part is conduct- ed except: (a) No license is required to cover a separate warehouse used by the licensee solely for storage of firearms or ammunition if the records required by this part are main- tained at the licensed premises served by such warehouse; (b) A licensed collector may acquire cu- rios and relics at any location, and dispose of curios or relics to any licensee or to other persons who are residents of the State where the collector's license is held and the disposi- tion is made; or (c) A licensee may conduct business at a gun show pursuant to the provision of 9 178.100. IT.D. ATF.191, 49 FR 46890, Nov 29. 1984) ~ 178.51 Ucense not transferable. Ucenses issued under this part are not transferable. In the event of the lease, sale, or other transfer of the operations authorized by the license, the successor must obtain the license required by this part prior to com- mencing such operations. However, for rules on right of succession, see 9 178.56. ~ 178.52 Change of address. A licensee may during the term of his current license remove his business or activi- ty to a new location at which he intends regularly to carry on such business or activity, without procuring a new license. However, in every case, whether or not the removal is from one region to another, notification of the new location of the business or activity must be given not less than 10 days prior to such removal to the regional director (compliance) for the region from which or within which the removal is to be made, and the regional director (compliance) for the region to which the removal is to be made. In each instance, the license must be submitted for endorse- ment to the regional director (compliance) having jurisdication over the region to which or within which removal is to be made. After endorsement of the license to show the new address and the new license number, if any, the regional director (compliance) will return same to the licensee. [T.D. ATF.135, 48 FR 24068, May 31, 1983) ~ 178.53 Change In trade name. A licensee continuing to conduct busi- ness at the location shown on his license is riot required to obtain a new license by reason of a mere change in trade name under which he conducts his business: Provided, That such licensee furnishes his license for endorsement of such change to the regional director (compliance) for the region in which the licensee conducts his business within 30 days from the date the licensee begins his business under the new trade name. IT.D. ATF.48, 44 FR 55842, Sept 28, 1979) ~ 178.54 Change of control. In the case of a corporation or associa- tion holding a license under this part, if actual or legal control of the corporation or associa- tion changes, directly or indirectly, whether by reason of change in stock ownership or control (in the licensed corporation or in any other corporation), by operations of law, or in any other manner, the licensee shall, within 30 days of such change, give written notifica- tion thereof, executed under the penalties of perjury, to the regional director (compliance). Upon expiration of the license, the corpora- tion or association must file a Form 7 (Fire- arms) as required by 9 178.44. ~ 178.55 Continuing partnerShips. Where, under laws of the particular State, the partnership is not terminated on death or insolvency of a partner, but continues until the winding up of the partnership affairs is completed, and the surviving partner has the exclusive right to the control and possession of the partnership assets for the purpose of liquidation and settlement, such surviving partner may continue to operate the business under the license of the partnership. If such surviving partner acquires the business on completion of the settlement of the partner- ship, he shall obtain a license in his own name from the date of acquisition, as provid- ed in 9 178.44. The rule set forth in this section shall also apply where there is more than one surviving partner. S 178.56 Right of succession by certain persons. (a) Certain persons other than the licens- ee may secure the right to carry on the same firearms or ammunition business at the same address shown on, and for the remainder of the term of, a current license. Such persons are: (1) The surviving spouse or child, or exec- utor, administrator, or other legal representa- tive of a deceased licensee; and (2) A receiver or trustee in bankruptcy, or an assignee for benefit of creditors. (b) In order to secure the right provided by this section, the person or persons con- tinuing the business shall furnish the license for that business for endorsement of such succession to the regional director (compli- ance) for the region in which the business is conducted within 30 days from the date on which the successor begins to carry on the business. IT.D. ATF.48. 44 FR 55842, Sept 28, 1979J ~ 178.57 Discontinuance of business. Where a firearm or ammunition business is either discontinued or succeeded by a new owner, the owner of the business discontin- ued or succeeded shall within 30 days thereof furnish to the regional director (compliance) for the region in which his business was located, notification of the discontinuance or succession. (See, also, 9 178.127.) [9 923(g)(4)] (T.D. ATF.48, 44 FA 55842, Sept 28. 1979) EOITOR'S NOTE: When there is no successor operator of the business, the out-of-business re- cords should be shipped to the ATF Fire- arms Out-of-Business Records Center, 3361F 75th Avenue, Landover, MD 20785. S 178.58 State or other law. A license issued under this part confers no right or privilege to conduct business or activity contrary to State or other law. The ." e holder of such a license is not by reason of the rights and privileges granted by that license immune from punishment for operat- ing a firearm or ammunition business or activity in violation of the provisions of any State or other law. Similarly, compliance with the provisions of any State or other law affords no immunity under Federal law or regulations. [5 927] S 178.59 Abandoned application. Upon receipt of an incomplete or improp- erly executed application on A TF form 7 (5310.12), or ATF Form 8 (5310.11) Part II, the applicant shall be notified of the deficien- cy in the application. If the application is not corrected and returned within 30 days follow- ing the date of notification, the application shall be considered as having been aban- doned and the license fee returned. (T.O. ATF.135, 48 FR 24068, May 31, 1983] S 178.60 Certain continuances of business. A licensee who furnishes his license to the regional director (compliance) for correc- tion or endorsement in compliance with the provisions contained in this subpart may con- tinue his operations while awaiting its return. Subpart E-Ucense Proceedings e [18 U.S.C. 5923(e), (I) S 178.71 Denial of an application for li_ cense. Whenever the regional director (compli- ance) has reason to believe that an applicant is not qualified to receive a license under the provisions of 5178.47, he may issue a notice of denial, on Form 4498, to the applicant. The notice shall set forth the matters of fact and law relied upon in determining that the appli- cation should be denied, and shall afford the applicant 15 days from the date of receipt of the notice in which to request a hearing to review the denial. If no request for a hearing is filed within such time, the application shall be disapproved and a copy, so marked, shall be returned to the applicant. S 178.72 Hearing after application denial. If the applicant for an original or renewal license desires a hearing to review the denial of his application, he shall file a request therefor, in duplicate, with the regional direc- tor (compliance) within 15 days after receipt of the notice of denial. The request should include a statement of the reasons therefor. On receipt of the request, the regional direc- tor (compliance) shall, as expeditiously as possible, make the necessary arrangements for the hearing and advise the applicant of the date, time, location, and the name of the officer before whom the hearing will be held. Such notification shall be made not less than 10 days in advance of the date set for the hearing. On conclusion of the hearing and consideration of all relevant facts and circum- stances presented by the applicant or his representative, the regional director (compli- ance) shall render his decision confirming or reversing the denial of the application. If the decision is that the denial should stand, a certified copy of the regional director (compli- ance) findings and conclusions shall be fur- nished to the applicant with a final notice of e \ ,_,~",_~,_--,-_,,'''_''''_''''_'-''''''''~'..c' .'''~ ~.......,.. c.".._:.....-"""'."........"'''' .~.."'.....~~~ ') denial, Form 4501. A copy of the application, marked "Disapproved," will be returned to the applicant. If the decision is that the license applied for should be issued, the applicant shall be so notified, in writing, and the license shall be issued as provided by 5 178.47. S 178.73 Notice of revocation. Whenever the regional director (compli- ance) has reason to believe that a licensee has willfully violated any provision of the Act or this part, a notice of revocation of the license, ATF Form 4500, may be issued. The notice shall set forth the matters of fact constituting the violations specified, dates, places, and the sections of law and regula- tions violated. The regional director (compli- ance) shall afford the licensee 15 days from the date of receipt of the notice in which to request a hearing prior to revocation of the license. If the licensee does not file a timely request for a hearing, the regional director (compliance) shall issue a final notice of revocation, ATF Form 4501, as provided in 9 178.74. [T.O. ATF.241. 51 FR 39619, Oct. 29, 1986) S 178.74 Request for hearing after notice of revocation. If a licensee desires a hearing after reo ceipt of a notice of revocation of a license, the licensee shall file a request, in duplicate, with the regional director (compliance) within 15 days after. receipt of the notice of revoca- tion. On receipt of such request, the regional director (compliance) shall, as expeditiously as possible, make necessary arrangements for the hearing and advise the licensee of the date, time, location and the name of the officer before whom the hearing will be held. Such notification shall be made not less than 10 days in advance of the date set for hearing. On conclusion of the hearing and consideration of all the relevant presentations made by the licensee or the licensee's repre- sentative, the regional director (compliance) shall render a decision and shall prepare a brief summary of the findings and conclusions on which the decision is based. If the decision is that the license should be revoked, a certified copy of the summary shall be fur- nished to the licensee with the final notice of revocation on ATF Form 4501. If the decision is that the license should not be revoked, the licensee shall be notified in writing. (T.O. ATF.241, 51 FA 39619, Oct. 29, 1998] S 178.75 Service on applicant or licensee. All notices and other documents required to be served on an applicant or licensee under this subpart shall be served by certified mail or by personal delivery. Where service is by certified mail, a signed duplicate original copy of the document shall be mailed, with return receipt requested, to the applicant or licensee at the address stated in his applica- tion or license, or at his last known address. Where service is by personal delivery, a signed duplicate original copy of the docu- ment shall be delivered to the applicant or licensee, or, in the case of a corporation, partnership, or association, by delivering it to an officer, manager, or general agent thereof, or to its attorney of record. [R_signaled by T.O. ATF.241, 51 FR 39619, Oct 29, 1986) S 178.76 Representation at a hearing. An applicant or licensee may be repre- sented by an attorney, certified public ac- countant, or other person recognized to prac- tice before the Bureau of Alcohol, Tobacco and Firearms as provided in 31 CFR Part 8 (Practice Before the Bureau of Alcohol, To- bacco and Firearms), if he has otherwise complied with the applicable requirements of Internal Revenue regulations, 26 CFR 99 601.521 - 601.527 (conference and practice requirements for alcohol, tobacco and fire- arms activities). The regional director (compliance) may be represented in proceedings by an attorney in the office of the regional counsel who is authorized to execute and file motions, briefs and other papers in the proceeding, on behalf of the regional director (compliance), as "At. torney for the Government." (Redesignated by T.O. ATF.241, 51 FA 39619, Oct. 29, 1986) S 178.77 Designated place of hearing. The designated place of the hearing shall be a location convenient to the aggrieved party. [T.O. ATF.241, 51 FR 39619, Oct. 29, 1986J S 178.78 Operations by licensees after notice. In any case where denial or revocation proceedings are pending before the Bureau of Alcohol, Tobacco and Firearms, or notice of denial or revocation has been served on the licensee and he has filed timely request for a hearing, the license in possession of the licensee shall remain in effect, even though: (a) Such license has expired; or (b) The revocation date specified in the notice of revocation on Form 4500 served on the licensee has passed: Provided, That under the condition of paragraph (a) of this section, the licensee has timely filed an application for the renewal of his license. If a licensee is dissatisfied with a post- hearing decision revoking the license or deny- ing the application, as the case may be, he may, pursuant to 18 U.S,C. 923(1)(3), within 60 days after receipt of the final notice denying the application or revoking the li- cense, file a petition for judicial review of such action. Such petition should be filed with the U.S. district court for the district in which the applicant or licensee resides or has his princi. pal place of business. In such case, when the regional director (compliance) finds that justice so requires, he may: (1) Postpone the effective date of revoca- tion of a license; or (2) Authorize continued operations under the expired license, as applicable, pending judicial review. [T.O. ATF-48, 44 FA 55842, Sept 28, 1979; Redesignated by T.O. ATF.241, 51 FR 39619, Oct 29, 1986) Subpart F-Conduct of Business 5 178.91 Posting of license. Any license issued under this part shall be kept posted and kept available for inspec- 31 e e '* e .~ .~TTACHME TB 1993' REGtJL:A.R.. SESSION Ch. 366, g:.9 In. 8.n.Yiyear. attel"!a; period ot t1me-.to!be det:enulne~;by.the:coIll.IDlssioner~ any amount" rema.inin~trolXlcundistributed count)';gJ:Ut .share! may-.be reallocated.to ~..oth~ counties which-ha'l&-aubmittedlqual.itylng:'application~. '~:.".-:>i . '.;.:~ ::..,.~:..~'': ;..;~, w.. .... ,', :',,: '. 'The-yetera.nr~pulation 0(" ea.ch:county.-,shall be- determined-bY" th~1'lgure supplied, by.the United . States . Department. of: ~~teraM: AttairsiiJ.,!radopted', by.:~e'commis8ioner. .' . .. Sec: 6. CORRECI'lON 10; MANUF'ACTURED. HOME PARKS: 1993. S.F. Nodl05 (enacted,.8Sl:.Laws<.199~-cl1apteJ:'286}r. 8.ect:lor>>-33, i!..e~~ted,..la .amended to, read::. . Sec. 33.= ,MA.NUFAcrURE~HOME:PARK;.ZONING iTUDY':, .,:. A mwiicfp"ality," as de.d.iiea.':iir:Miiinesota' StatUtes?' section 462.352, sub'divis'ion' 2, may not. adopt an' ordinance. attar May 22, 1993 lnd before' August 1, 1994, that establishes' setback requirements:.(ol" manufa-cttIred-:homes.:in a.manu!actured;'home-.p~k iNhe. ~rdinanee .would have the etfect" of prohibiting: replacing; a home'\',m.: 81.park, with a; home- appl'QugQ bY: the clgp:lJ't:miRt of Rousing' and u.rb2>l clllug!Qpm9Rt manufactured: to. t.he..:manufactured. home, buildin~code .u,defined in, Minnesota. St.al:u~:~section 321'.31;. subd.ivision.3.- .' "... . . Setback; requirementsl!adopted-. by."ordlnanctt"by: a. munlclpalityo after . Aprilr: 1,. 1991:; are sU!pendeQJan~h&ve-no:e1Tect:untU'August. r,' 1994; itth6isetback::.reqwrementschaveI th(ll effect" , of prohibiting replacing- a manu!actored home- in- a manufactured' home park..w1th: a:.home-' ~ppNVeQ . b~' tile Qepartmellt gf RQUSiJlg 2sd W'b~ clg"e!gpmel<t. manu!actured'.to the manufactured home building code 8.8 . defined in Minnesota.. Statotesr, section. 327..31', 8ubdivi- sion 3. .. Sec. 7. CORRECTION, 13; AlRCRAFT' PRIMER~ Minnesota; Statutes: 1992, section 115A.9651, 89 amended by 1993' H.F. No. 281' (enac:ted'u Laws 1993; chapterr249], section 25, is amended to read: . ",:' 115A.9651 TOXICS IN PRODUCTS; ENFORCEMENT' .-'Vter July 1.. 1994. no, penon. may del1berately: izrtroduee lead.. cadmium, mercury; or hexavalent chromium into any. ink, dye, pigment,.paint;.or. fungicide that is intended for use or' for sale in t.hi&. state.. '... Until July 1, 1997, this. section does. not. apply ta.electrodeposition:primer coat.ing or primer coating used on a.irl:ratt, poree1.a.ic.. enamel coatingsj'medicat devices-.hexavalent- chromium. in the torm of. c.b.romine' acid.:.wbel1 processed. at,' a., temperature-. of> at.' lea.s1:;, 750; degrees Fahrenheit.. or ink used..tor. computer identifi.eatioII,ma.rki.ngs~ .:_ '.. ..,. '. This sectiorr does' not apply to. art supplies: . ... ~', This section may: be enforc~ Under sections ;115.071 and:1 16'.072: :J]e attorney' generaI. or the commis'sioner or Uie ag~ncy:~shall coordiriate. enforcement.of'"this s'ectioll' wit1i" the"director of the office.' .. ." Sec. 8. CORRECTION IS;. ZONINGi'. FIRE:AIiMS DEALERS. 1993 H:F.: No. 1585 [enacted. as L~"ws'.1993;" cha ter 3. .. artiCle 1 section, 3 if: enacted, is amended' to .read: Sec..S. ..."71~63S..Z0NlNG ORIiINANCES.-. _ ::~ ,~~~... ....~.. ~.._~. '.~ ..~... ., .. Notwithstanding 'section 41I.638;.a.:g~ernmental:.. subdivision;maT-~gui~t.e. by:~~~ona.ble, nondiscriminatory; and nonarbitraiy zoning ordinances/, the! location: ot business8S" where flleanIl!.are. sold by a fir~dealer...For the purposes. of. this sectionra.Oreartns'.de.aler is, a tson who, la. federall licensed. to. sell nrearms:&Dcf a. overnmental-.suhdivision: is..8Jl. enti escIi '.lluectJons.471.633. " 634.' . .. . \ Sec. 9. CORRECTION-16;' DRIVE-BY"SHOOTING; VEmCLE'.FORFEITURE. 1993 H.F. No. 1585 (enacted 8.8 Laws 1993, chapter 326],. article ~, section 13r subdivision 1, if enacted, is amended.. to read: . . See. 13. 609.5318 FORFEITUR&OF VEHICLES. USED IN DRIVE-BY SHOOTINGS. Subdivision 1. MOTOR VEHICLES SUBJECT'TO FORFEITURE. A motor vehicle is subject to forfeiture under this section if the prosecutor establishes by clear and convincing evidence that the vehicle. was used in' a violation of. section 609.60, 8ubdivision Ie. The prosecutor need not establish tha.t. any'.individual:.wa.s convicted. of the..violation, but a conviction of the- owner (or a' violatioCt of section 609.66r subdivision le, creates. a presumption that the ~ vehicie was. used in the Violation. AddlUon&.Ic.> IndlcmG' lIy, ~a; clel~tlon&, lIy, WU:.a4.ut 1689 e e e ) 900.25 - HOME OCcUPATIONS ATTA)HMENT C -. 1. Purpose. The purpose of this subsection is to prevent unfair competition with business districts and to provide a means through the establishment of specific standards and procedures 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. In addition, this subsection is intended to provide a mechanism enabling the distinction between permitted home occupations and conditional or customarily "more sensitive" home occupations, so that permitted home occupations may be allowed through an administrative process rather than a Quasi-Judicial hearing process. 2. Prohibited Activities. No home occupations (permitted or conditional) shall: a. Constitute a fire hazard to neighboring residences, adversely affect neighboring property values, or constitute a nuisance or otherwise be detrimental to the neighbors because of excessive traffic, noise, glare, odor, electrical interference, vibration, dust and other nuisance or safety hazards. b. Adversely impact governmental facilities and services, including roads, sanitary sewer, water, storm drainage, garbage service, police and fire. c. Adversely affect sensitive environmental features including lakes, surface and underground water supply and quality, wetlands, slopes, flood plains and soils, or other factors as found relevant by the City. d. Involve the use of hazardous materials or activities. e. Involve any of the following: body shops, machine shops, welding, ammunition manufacturing, flea markets, motor vehicle repairs or sale, massage or escort business or other adult oriented businesses as defined by this ordinance, or other objectionable uses as determined by the City Council. 3. Permitted Home Occupations. Permitted home occupations shall be issued subject to the conditions of this Section, other applicable City Ordinances and State Law. A permit for a permitted home occupation may be issued by the Zoning Administrator or his agent based upon proof of compliance with the provisions of this Subsection. Application for the permitted home occupation permit shall be accompanied by a fee as adopted by the City Council by resolution from time to time. If the Administrator denies a permitted home occupation permit to an applicant, the applicant may appeal the decision pursuant to the provisions of Section 900.42. Permitted home occupations are subject to the following criteria: 9.88 e ) ~ a. The o~~upation shall be carried on entirely within the dwelling unit or attached garage except that light construction contractors may use detached accessory structures which would normally be allowed under the provisions of this ordinance for storage. If the home occupations is carried on in the garage, the minimum amount of required garage space shall be maintained as garage space. b. There shall be no exterior evidence of the home occupation such as displays, exterior storage of business equipment, materials, merchandise, inventory or heavy equipment. c. No permitted home occupation shall require internal or external construction features not customarily found in dwellings. d. A maximum of one (1) full-time employee, or equivalent, other than those persons who customarily reside on the premises shall be employed. This provision shall not apply to dwellings where the permitted home occupation is a meeting place for employees and the work is done off-premise. . e. Permitted home occupations involving teaching shall not exceed two (2) pupils at a time. e f. Any sign or visible advertisements shall not exceed two (2) square feet in area and shall be mounted flat on the outside wall of the dwelling. \ } g. No permitted home occupation shall be serviced by delivery vehicles larger than 26,000 pounds gross vehicle weight. h. No home occupation shall be conducted between the hours of 10:00 p.m. and 7:00 a.m. i. Permitted home occupations shall not create a parking demand in excess of that which can be accommodated in an existing driveway, where no vehicle is parked closer than fifteen (15) feet from the curb line or edge of paved surface. j. The operation of any wholesale or retail business, unless it is conducted entirely by mail, and does not involve the sale, shipment, or delivery of merchandise on the premise, is prohibited. On-site sales shall be limited to those clearly incidental to services provided in the dwelling. e k. Permitted home occupations may not involve repair of internal combustion engines or use of equipment which is not normally found in a home; except that equipment which is typically in an office may be used. 9.89 e \ 4. Conditional bme Occupations. Home OCL ~ations that do not involve "Prohibited Activities"( but that exceed the "Permitted Home Occupation Criteria" may be allowed with approval of a conditional use permit by the City Council pursuant to the provisions of Section 900.42. ,~ 5. Inspection. The City may at any reasonable time inspect the home occupation to determine if the applicant is strictly adhering to the criteria for a permitted home occupation or the conditions placed on a conditional home occupation. Inspection by the City of a home occupation shall take place at a minimum of every three (3) years. 6. Revocations. Permitted and conditional home occupations permits shall remain in effect until: a. Such time as there has been a change in conditions of the operation or until such time as the provisions of this Section have been breached. At such time as the City has reason to believe that either event has taken place, the owner of the home occupation may cease the operation or request a public hearing be held pursuant to the provisions of Section 900.42 to consider the matter. e b. If the proposed work described in a home occupation permit has not been substantially completed within two (2'- years after its date of issuance, the permit shall expire and become void except that the Council may, following recommendation of the Planning Commission, extend the permit for an additional period determined by the Council on the receipt of a request for a permit extension prior to its expiration. c. For any reason, the authorized use ceases for more than one (1) year. 900.26 - MOBILE HOME PARK REQUIREMENTS 1. General. A mobile home park may be located only in an R-3 District following the receipt of a conditional use permit and the approval of the mobile home park site plan by the Council and the execution of a development agreement. The plan and permit application shall be processed pursuant to the procedures established in Section 900.42. A plan and permit may be approved only following compliance with the provisions set forth in this Section, Section 900.42, and other applicable provisions of this Ordinance and other ordinances and regulations of the City. 2. Site Plan. An application to establish a mobile home park shall be accompanied by a site plan. The site plan, together with the conditional use permit, shall govern the use and development of the mobile home park. No building permit or certificate of occupancy shall be issued unless in conformance with the approved site plan and permit and any changes in the e 9.90 findings, and th~ection taken on an appeal including its fi l order and any condition~ connection therewith. "\ variance, .'stablished in e 900.42 - CONDITIONAL USE PERMITS. 1. Application. a. A conditional use permit may be issued in accordance with this Ordinance for only those uses or purposes for which such permits are required or authorized by this Ordinance. b. An application for a conditional use permit shall be filed with the Building and Zoning Administrator on a form prescribed by the City. The application shall be accompanied by such plans and information as may be required by the Building and Zoning Administrator, including without limitation: i. A site plan drawn at scale showing all abutting lots, existing buildings, existing uses, utilities, curb cuts, locations of trees having a diameter of six (6)inches or more. e ii. A proposed development plan showing proposed ingress and egress to the property and proposed structures, yards, off-street parking and loading areas, and where appropriate, plans for utilities, screening, buffering, landscape, lighting, signs and open space, and a development schedule. 2. Planninq Commission Review. On receipt of a completed application including necessary plans and information, the Zoning and Building Administrator shall schedule its review by the Planning Commission. The Planning Commission shall report its findings and recommendations to the Council with regard to the application. 3.' Council Action. On receipt of the report of the Planning Commission, the Council shall hold a public hearing and shall make a decision upon the proposal to grant or deny a conditional use permit. At least ten (10) days in advance of each hearing, notice of the time and place of such hearing shall be transmitted to the applicant and shall be published in the official newspaper. All property owners within three hundred fifty (350) feet shall be notified by mail of the subject, time and place of the public hearing. Failure of the property owner to receive notice shall not invalidate the hearing or proceeding. 4. Standards. e a. The Planning Commission shall recommend a conditional use permit and the Council shall order the issuance of 9.118 e e e such a per t only if it finds that s~ 'use at the proposed l~~ation: i. 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. ii. Will be consistent with the comprehensive plan. iii.Will not impede the normal and orderly development and improvement of surrounding vacant property. iv. 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. v. Will not involve uses, activities, processes, mat.erials, 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. vi. Will not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. /-\ ~.- ) vii.Will fully comply with all other requirements of the City's Code of Ordinances, including any applicable requirements and standards for the issuance of a license or permit to establish and operate the proposed use in the City of Elk River. b. Denial for Noncompliance _oIf the Planning Commission recommends denial of a. conditional use permit or the Council orders such denial, it shall accompany its recommendations or determinations by findings or a report stating how the proposed use does not comply with the above standards. 5. Conditions. a. 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 standards set forth above and requirements contained in this Ordinance and to promote compatibility with and minimize any potential adverse effects upon adjacent properties, the neighborhood 9.119 e tit e ) .j MEr\.1QRANDUM: LA.RKIN, HOFFMAN, DALY & LINDGREN, LTD. 1500 Norwost Financial Cenkr 7900 XerxC8 Avenue Snuth Bloominllton. MinncRnt.a 55431 TO: Elk River City Council FROM: Peter K. Beck, City Attorney DATE: August 13, 1993 RB: Conditional Use Case No. CU 93-18 Request to Allow Mail Order Business a5 a Home Occupation Planning staff has requested that I prepare a brief memo outlining the Council's options as it considers the request of Mr. Mark Palmer for a conditional use permit to allow a mail order fire arms business as a home occupation. Section 900.25 of the City Zoning Code identifies a number of permitted home occupations. Included are mail order businesses. Mr. Palmer'S business requires a conditional use permit because it involves the delivery of merchandise on the premises. Section 900.25(2) sets forth five standards for evaluating home occupation requests. (A copy of this section is attached for your reference.) Section 900.42(4) of the Zoning Ordinance sets forth seven standards for the issuance of a condicional use permit. Section 900.42{5} authorizes the City Council to impose conditions upon the approval ot a conditional use permit. (Copies of these sections are also attached for your reference.) One option for the Council is co approve the conditional use permit subject to such specific conditions as the Council feels are appropriate and necessary to satisfy the standards set forth in the Ordinance and to promote compatibility with and minimize any potential adverse effects upon adjacent properties. This is the course of action recommended by the planning staff and the Planning Commission. e e - A second option would be to deny the conditional use permit on the grounds that the standards set forth in Section 900.25 and 900.42 have not been met. The City has a certain amount of discretion in acting on conditional use permits. However, the courts have indicated that denial of a conditional use permit must be for a legally sufficient reason, for which there is a factual basis. We believe that all of the standards set forth in the Ordinance are legally sufficient. If the Council finds that a particular standard has not been met, there must be a factual basis for this determination. It is also best to have written findings which set forth this factual basis and the grounds for denial. If the Council's decision is to deny the conditional use permit, I recommend the Council direct staff to prepare its findings in written form for adoption at a subsequent meeting, and continue the conditional use permit request until that meeting. There is also a third option. The 1993 session of the state legislature enacted a new law which authorizes governmental subdivisions to regulate the location of businesses where firearms are sold. (A copy of this law is attached.) The City Council may want to defer action on Mr. Palmer's request until a study on the desirability of enacting such an ordinance in Elk River can be completed and acted on. State law specifically authorizes municipalities to adopt an interim ordinance restricting certain uses if the City is conducting studies or has authorized a study for the purpose of considering an amendment to the Zoning Ordinance. If this is the course of action the Council determines to take, the Council action would be to authorize and direct planning staff and the Planning Commission to commence a study of a potential firearms ordinance; direct staff to prepare an interim ordinance restricting any approvals for firearms sales pending completion and action on the study; and continuing Mr. Palmer'S request until the interim ordinance is acted on. The interim ordinance can be for no longer than one year initially, but can be extended to an additional 18 months. The ~lanning Commission inquired as to whether the City could adopt a licensing ordinance for firearms businesses. Since this issue is not before the City Council on this request for a conditional use permit, I have not done any research into this specific question. However, as I told the Planning Commission, I doubt that licensing of firearms businesses (as opposed to licensing of all retail businesses, for instance) would be permissible given the constitutional issues involved and the heavy involvement of the federal government in licensing firearm dealers. I would be happy to pursue this issue further if the City Council would like me to. I will be at the Council meeting Monday nighc and will be happy to elaborate on this memorandum or answer any questions. It Att.achment PKB:IJ3s 2. A.I -\.( ( i/ ill{ River rEM 6 TO: PLANNING COMMISSION ~@fPJlf FROM: STEVEN B. ACH, CITY PLANNER~ DATE: JULY 14, 1993 SUBJECT: CONDITIONAL USE PERMIT REQUEST BY MARK C. PALMER/PUBLIC HEARING, CASE NO. CU 93-18 . ATTACHMENTS Location Map, Zoning Map, Comprehensive Land Use Map, a Letter from Mark Palmer, Sketch Plan of Property, List of Property Owners. PROPOSED LOCATION 957 Main Street, Elk River, MN (Southeast corner of Main Street and Morton Avenue). REQUESTED ACTION A conditional use permit request to operate a mail order business as a home occupation. e ZONING/LAND USE RIC (Single Family Residential)/MR Medium Density Residential OVERVIEW Mr. Palmer's request is for a conditional use permit to operate a mail order business. Specifically, the business will involve the sale of firearms whereby a customer may review catalogs for a particular firearm. The firearm is then ordered by Mr. Palmer and delivered to his home address and eventually, picked up by the prospective buyer. As stated in the attached letter from Mr. Palmer, no inventory of firearms available for sale will be kept on site. In addition, no accessories such as ammunition will be sold on the premises. REQUIREMENTS FOR SALE OF FIREARMS e Generally speaking, in order to sell firearms, an individual must obtain a Federal Firearms License from the Bureau of Alcohol, Tobacco, and Firearms (ATF). The most common license issued by ATF is a Type 1, which allows the buying and selling of firearms. Mr. Palmer currently has a Type 1 license that is valid through May, 1996. The City currently has no license or permit requirements to sell a firearm. However, it should be pointed out that the state legislature recently passed a bill which states, "...a governmental subdivision may regulate by reasonable, nondiscriminatory, and nonarbitrary zoning P.O. Box 490 · 13065 Orono Parkway · Elk Rjver, MN 55330 · (612) 441-7420 . Fax: (612) 441-7425 e e e \ CUP, Mark C. Palm~r July 14, 1993 Page 2 ordinance, the location of businesses where firearms are sold. .." In other words, the City could pass an ordinance that has locational standards where the sale of firearms can and cannot occur. An example may be, a minimum distance from schools, public buildings, or churches that the sale of firearms can occur. However, before taking this approach, consideration needs to be given to the number of people and businesses that may be affected by such an ordinance. As a point of information, ATF has issued a total of eighteen (18) Type 1 licenses to residents and business in the City of Elk River. Of those eighteen (18), thirteen (13) are issued to applicants in residential areas. The City has no information whether these people are selling firearms at their residence. However, there have been no complaints from surrounding residents regarding retail activity. ANALYSIS Residential home occupations are permitted or conditional uses that do not compete unfairly with the business districts nor diminish the character of residential neighborhoods by creating a health and/or safety issue. Any time a home occupation exceeds the boundaries allowed by ordinance, the City Council reserves the right to reconsider and possibly revoke the home occupation permit. Even though this is a mail order business, the product being purchased and sold raises public concern. However, according to the home occupation ordinance, the proposed application falls within the specific guidelines. Furthermore, the seven criteria necessary to grant a conditional use permit can all be satisfied as long as the business is conducted in accordance with the home occupation standards and the recommended conditions. PARKING Mr. Palmer has submitted a drawing of his lot which illustrates the position of his home, driveway, and garage. There are two driveways, one of which accesses directly onto Main Street. The driveway off of Main Street has some equipment and miscellaneous items which prevent maximum parking availability. The rear driveway has enough space for three and possibly four automobiles. Parking associated with home occupations is always a concern and should not occur in the street. Therefore, staff will recommend limiting the number of customers at any given time. RECOMMENDATION Staff recommends the Planning Commission recommend approval of the conditional use permit for Mark C. Palmer allowing a mail order business as a home occupation, with the following stipulations: " CUP, Mark C. Pa~_~r July 14, 1993 \ Page 3 ------------------- e 1. THERE SHALL BE NO INVENTORY OF FIREARMS KEPT ON SITE THAT ARE INTENDED FOR SALES. 2. NO MORE THAN ONE CUSTOMER VEHICLE BE PRESENT ON SITE AT A GIVEN TIME AND NO MORE THAN ONE CUSTOMER VEHICLE PER HOUR. 3 . ALL STANDARDS MENTIONED IN SECTION REGARDING HOME OCCUPATIONS BE FOLLOWED. 900.25(3) 4. THE CITY COUNCIL REVIEW THIS CONDITIONAL USE PERMIT IN SIX (6) MONTHS FOR APPLICANTS COMPLIANCE WITH CONDITIONS AND ANY COMPLAINTS RELATING TO THE BUSINESS OPERATION. 5. CUSTOMER HOURS SHALL BE LIMITED TO 9 A.M. TO 9 P.M., MONDAY THROUGH SATURDAY. 6. DUE TO THE NATURE OF THE BUSINESS, NO EXTERIOR SIGNAGE WILL BE PERMITTED. 7. ANY CHANGE IN BUSINESS OPERATION OTHER THAN STRICTLY MAIL ORDER SHALL REQUIRE REVIEW BY THE CITY COUNCIL. e 8. NO FIREARM ACCESSORY ITEMS INCLUDING BUT NOT LIMITED TO AMMUNITION, MAY BE SOLD ON-SITE. e ","0"'0 / =--"-'- . ---.- ~-'--~--- .'C"'( ~~::'\J. ----.... -\~-. ~.------- ~l ~ LOCATION MAP e CASE C()9~-'1 ~iver P.O. Box 490 · 13065 Orono Parkway. Elk River, M . . ". \ ') \ ~ I I II / / / _ /1.1 I , ,.. I -, I I t---,.. T\I, ',:0 r i.l'/Jt_<.: I--m:-rr ~ 1 C~ c4\. I c.. N ~.;::r.:- /{ pt., ~;;' T- \ , - ~ v "J ;J.'<J\A' ~~, lorr~ .' ~ " . ~~I;,z. .,,;..IYfl:;!.>1 13 W:" i. ~. \ 'i)~ T ~_ ~ ~~, ~ - I - F\" I ,...... 0 I ~~~. ~~ R2 f:: Cr3 ~ .;~ ~'/-~;I P , . .I;v;cr\ '\ f '===lJ~R d ~. ,." tl ...... I ""'R I. I. -'-- 've. ,_ I -;-...j .1.::: CL" I ,. ~\.~ \ "-., ". .. d>U U' .r:: h..-~~~. · .~\ 'I R4 ""1 c-;;y- ~::.:il "-~r~'L"" :\' \\'/ . , R2b /.'1111. II. . 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CJ30x 532, 957 ~tn St. c.E1k ~ver, ~55330-0532 O~ce(612)441-8187 Waser (612) 530-6331 1 June 1993 Steve Rohlf, Building & Zoning Administrator City of Elk River 13065 Orono Parkway Elk River, MN 55330 441-4900 Dear Mr. Rohlf; Per our conversations, please find enclosed are the forms you have requested. With this letter I hope to clarify my position and allay any concerns as to the nature of my business endeavors. At this time, River City Small Arms is essentially a mail order business. In the near future I hope to expand the entire operation out of my home and into a new retail location. At this time, neither time nor money permits me to carry any inventory in stock as a normal retail operation would. I work strictly through catalog sales (if someone would like to purchase a firearm, I can show them what is available and order it for them). I do not sell ammunition or reloading supplies at this time, only firearms. Many people may not be aware of the stringent restrictions placed upon an individual who holds a Federal Firearms License. By applying for, receiving, and signing the FFL, I have waived certain rights that would normally apply to any other citizen. I am subject to a mandatory inspection once a year by the Bureau of Alcohol, Tobacco, and Firearms. They do not need a search warrant to go through my entire place of business (my home), nor do they need to notify me in advance of their plans to inspect. The first floor of my residence is listed as my place of business, therefore, they can inspect/search the whole first floor and garage as they see fit. I understood and agreed to this when I applied for my license. There aren't many other types of business that are subject to this kind of procedure. Along the same lines, there is a tremendous amount of paper work that has to filled out for each firearm sold. Everything has to be accounted for and recorded in the format that the BA TF requires. All firearms must be logged in when purchased by me and logged out when sold. I am personally responsible for each transaction. At the same time, I must do my best to verify that all of the information given to me by a potential purchaser is complete, true and correct. This information must be kept by me in permanent records, including all originals. There are also numerous State and Federal laws regarding the sale of firearms that I am expected to be familiar with and abide by. If I do not, I am subject to rather severe penalties and the revocation of my license. In reference to the Seven Standards for a Conditional Use Permit: 1. As this is a "mail order" business there will be little traffic, either motor vehicle or pedestrian. All firearms that I now have are my own personal sporting firearms and are stored secured unloaded, out of sight and locked up. I currently have very little ammunition in house as time and money have not allowed me the luxury of investing in my hobby. There is no noise or other disturbance associated with this business because it is illegal to discharge firearms within the City limits. My son, Sean, is the only minor currently living in this household and he has had more than adequate training in the proper use and care of firearms (besides, none of the firearms are even accessible to him or anyone else). There are no chemicals, toxins, or hazardous materials involved in this business. 2. From what I know of the City's Comprehensive Plan, I believe that I am within the standards set forth. 3. At this time there is no vacant property near my residence. As I stated earlier in this letter, I hope to move this business out of this location in the very near future and into a larger retail location better suited to the needs of sporting goods store. Firearms sale is only a part of what I envision this will develop into. 4. This business does not increase the risk of fire, nor does it create a hazard in itself. Being located on Main Street, close to down town Elk River, I feel that we have adequate Police and Fire protection. There are four parking places in my driveway, although I have yet to have more than one customer here at one time. This business does not significantly increase the normal amount of garbage that would be produced by this family. Neither my yard nor my home are open to nor are frequented by minor children, so this should not present itself as a problem. 5. Again, I believe that it is relatively self evident that this business will not create any hazards or disturbances as there are no manufacturing processes taking place here. 6. I would certainly hope that nothing here or around me would be damaged or destroyed. My family has done much to improve the value of this home and the property that it sits on. It would not be in our best interest to cause anything to h;;.ppen to our own living space. 7. I am currently doing my best to comply with all applicable ordinances as best as I understand them. There is not now nor will there ever be any signage on or around my home. Neither will I be advertising the physical address of my place of business. I do this for reasons of personal security, both for my family and for my neighbors. I do not wish to invite theft, burglary or vandalism. Only people that I know well are invited into my home. The only planned retail sales will take place at sanctioned firearms or weapons shows as allowed by BA TF regulations. Anyone wishing to do business with me outside of these shows can do so by prearranged appointment. The Bureau of Alcohol, Tobacco and Firearms requires a physical address to issue a Federal Firearms License. The only physical address that I have at this time is my home. As you will notice the only address listed on my letterhead is my P.O. B~x. Again, this is for reasons of personal safety and concern for my neighborhood. This was never meant to be an ongoing home business. It is hopefully the beginning of a prosperous sporting goods store located within the City of Elk River. I would like to thank you for taking the time to review my application and would greatly value any and all input that you may have regarding this matter. Sinc~eIY;j __ I;t~.~ Mark C. Palmer, Owner e e e '\ MAIN ST~f;;:f;;:T " 4 OA~L<IN8 SOACf;;:S IN ~ <{ 2: o f- a o ~ - O~IVf;;:V\JA Y -f--- DPIVE ~f;;:SIOf;;:NCf;;:/ aUSINf;;:SS (lST +=LOO~ ONL Y) PPIVATE DPIVE QIVf;;:~ CITY SMALL A~MS 957 MAIN ST. ~LL< QIVf;;:~) MN 55220 c= r~ V") 0 r- l./') :x = ~ ;t.: ;:; ...... c: ::: '" C"") r- ""0 C -t C"'. m ..,.., '1:) .". ,... :: n :-: .:: C 0 ~ ::J :::: n 0 I'" ~: ~ n ~ "'t;) r- Z ~. ""; C\ V"I ~..~ C ,..., ... ,,~ '--. I X- J> ;p m r,- > c: C r ..... .... 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