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Marina CUPs <br /> July 10, 1997 <br /> Page 3 <br /> The issue of'grandfathering'is presenting a problem. Staff has requested that the City's prosecuting <br /> attorney determine how best to gain compliance of the two marinas who refuse to apply for CUP's. The <br /> prosecuting attorney has indicated to me verbally that in their opinion this matter should not be <br /> prosecuted criminally, for the following general reasons: <br /> 1. We would be citing the marinas for operating each of the conditional uses without the <br /> required CUP.The City prevailing in a criminal citation does not necessarily compel action,but merely <br /> results in a fine up to$700 and/or 90 days in jail. It is likely that either marina would plead not guilty <br /> and request a jury trial, which is their right. <br /> 2. In a criminal proceeding,the City bears the burden of proof The City would have to <br /> prove that the marinas are operating without the required CUPs. In the prosecuting attorney's opinion, <br /> it is likely that the marinas would argue they are grandfathered. If just one juror agrees that they should <br /> not be subject to the CUP requirement, the City would lose. <br /> 3. Apparently,in the prosecuting attorney's opinion,converting an existing use that is not <br /> identified in the old code,to a conditional use requiring specific approvals,is the same as converting <br /> a previously permitted use to a non-permitted use. This then becomes the typical case of'continuing <br /> a non-conforming use',which is difficult to eliminate unless there has been a one-year lapse in the use <br /> as well as an intent to let the use lapse. <br /> I am therefore asking that Mr. Barrett review this situation and assist me in determining a course of <br /> civil action to gain compliance(or,determine that the code is unenforceable and define strategies for <br /> changing it). The City's primary goal with marinas is to minimize their impact on the surrounding <br /> residential neighborhoods. A secondary goal that has perhaps become significantly less clearly defined <br /> over the last 20 years is to reduce the overall impact the marinas have on the lake environment. Our <br /> specific goals in gaining compliance with the CUP requirement include the following: <br /> a. Compliance merely for compliance's sake; i.e. the code requires it, one other marina <br /> which was required to comply did so, and all should be treated equally. <br /> b. Establishing a documented plan by which each of the marinas in question has defined <br /> how it will meet parking needs for the various uses, and which the City can use as <br /> a tool to ensure that parking doesn't become a problem. <br /> c. Establishing a landscaping/screening plan for each of the marinas in question,which <br /> can include maintenance of existing landscaping/screening and/or the addition over <br /> time of additional landscaping/screening. <br /> mpg <br />