HomeMy WebLinkAboutResolution 1104 � �
Cit� o� ORONO
RESOLUTION OF THE CITY COUNCIL
� NO. 1104
� - • •
DENYING AN APPLICATION FOR A 1979 COMMERCIAL
DOCK LICENSE FOR STUBBS BAY MARINA
WHEREAS , the City of Orono is a municipal corporation organized
and existing under the laws of the State of Minnesota and has the authority
and responsibility under Minnesota Statutes , State Statute 412 , et. seq.
and State Statute 462, et. seq. to protect the health, safety and general
welfare of the citizens of the City of Orono and other members of the
public within the City of Orono; and
WHEREAS, within the City of Orono there exist several
commercial marinas engaged in the business of renting slips and mooring ^
spaces on public waters ; and
WHEREAS , the City of Orono has determined that such commercial
activity on public waters within the City of Orono and on the land within
the City of Orono is subject to the regulations of the City of Orono,
including compliance with all the annual licensing reguirements of
Chapter 73 of the Municipal Code; and
WHEREAS, James K. McCleary on May 24 , 1979 made an application
for a 1979 Commercial Dock License for Stubbs Bay Marina; and
WHEREAS, McCleary' s Stubbs Bay property is within a Study Area
which has undergone extensive review as part of the City' s comprehensive
planning program; and
WHEREAS, McCleary' s application included a plan for docks and
slips which were not located in compliance with the Ordinances of the
City of Orono or the Lake Minnetonka Conservation District;
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the
City of Orono, after years of extensive review of the impact of the
commercial marina operations on the citizens of the City of Orono and
other members of the public within the City of Orono, hereby makes the
following findings of fact concerning commercial marinas located within
the City of Orono and located on Lake Minnetonka:
l. Minnesota Statutes , State Statute 412 et. seq. and State
Statute 462 et. seq. grant to the City of Orono the authority and
responsibility to regulate the on-land activities of commercial marinas
within the City of Orono, any dock structures attached to land located
within the City of Orono, and any and all other activities which take
place within the primary harbor limits of the City of Orono, which
activities may adversely affect the health, safety and general welfare
o� the citizens of the City of Orono and other members of the public
within the City of Orono.
. PAGE 1 OF 9 '
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Resolution No. 1104
Page 2
2 . The primary harbor limit of the City of Orono is 300 ft.
lakeward from the ordinary high water mark of Lake Minnetonka.
3. Because of the geographical location of the marinas and
their proximity to heavy population, and the access to marinas by
county and city roads , and the general use of the bays of Lake Minnetonka
for recreation by way of swimming, boating, fishing and water sports by
the citizens of Orono, the city regulates both the on-land activities
of marinas and the extensions of docks and mooring areas into Lake
Minnetonka in the interest of public order and to protect the life ,
safety and welfare of the community. The City through its regulations
is not licensing boats but is only licensing the marinas to the extent
the marina operations affect the general public and the adjacent
properties within the City of Orono.
4 . The City shares concurrent jurisdiction over the primary
harbor limit of the City of Orono with the LMCD and the State of
Minnesota.
5. The LMCD and the City of Orono have determined that docks
and mooring in excess of 200 feet from the ordinary high water mark
of property along Lake Minnetonka is an unreasonable extension of riparian
rights into the navigational channels and body of Lake Minnetonka.
6. The establishment of a dock and mooring line neither creates
nor destroys the limited rights of the marinas but merely regulates and
limits the exercise of whatever riparian rights the marinas may have.
7 . Absent such regulations , who would fix and adjust the
proper compromise of the obviously conflicting interests of the use of
Lake Minnetonka. Only the agencies of the State of r�Iinnesota and the
political subdivisions thereof in exercise of the legislative law making
and police power can prescribe the rules by which these "public highways"
of the lake are regulated.
8 . The regulation of the navigable waters involves an exercise
of police power of the state, LMCD and the City of Orono, all of which
have adopted rules to insure to all equal enjoyment of the public rights
and to suppress the clashing of public and private interests and resulting
public disorder.
9. In many ways the development and management of marinas
within the City of Orono are peculiarly subject to the local regulations
of the City.
10. The regulations of the DNR, LMCD, and the City of Orono
regulate the property rights of the riparian owners both as to single
family residential owners and the commercial marina owners , to the extent
prohibiting any interference with the public waters adjoining that property.
The LMCD, DNR and the City of Orono must fulfill their trusteeship over
the public waters protecting against interference by anyone, including
those who assert the commonlaw rights of riparian owners, whether or not
they be commercial marinas or single family residential owners .
Resolution No. 1104
_ Page 3
11. As to Lake Minnetonka, a mutual right of enjoyment exists
between and is shared by riparian owners and the public generally. The
marinas have no exclusive privileges over Lake Minnetonka. The only
additional private right that the marina or any riparian owner may have
over the public generally is to construct one dock to the navigable
depth of the public waters. There can be no dispute but that the public
generally and each riparian owner to Lake Minnetonka has the right to
use the entire surface area of Lake Minnetonka for all suitable purposes
in common with all other riparian owners . This right is a right not only
to the members of the public but the right to each riparian owner. This
mutual right of enjoyment which is shared by riparian owners and the public
generally includes the recreational benefits of the lake such as boating
and fishing therein; the riparian marina has no exclusive privileges to
these rights.
12. As the population has increased around Lake Minnetonka,
and in the Twin City Area generally, it is clear that more and more
people have used the lake for sailing, rowing, fishing, boating, bathing,
skating, and other public purposes which cannot be now fully enumerated
or even anticipated.
13 . Lake Minnetonka is capable of substantial beneficial
public use only as long as all riparian users of the lake are regulated
in such a way as to insure there is no abuse of the limited riparian
rights.
14. The marina as a commercial riparian owner only has limited
riparian rights incident to the ownership of real estate bordering upon
Lake Minnetonka. The marina operator has a limited right to build and
maintain one suitable landing or dock, on and in front of his land, and
to extend the same therefrom into Lake Minnetonka to a point of naviga-
bility; but, under no circumstances may he encroach into Lake Minnetonka
to a point where he impairs the water' s navigability for other public
purposes or where he unreasonably interferes with the surface water rights
of all riparians and members of the public generally.
15. It is a documented fact that marinas in the past have
indiscriminately extended their docks far beyond the point of navigability
into Lake Minnetonka in such a way as to greatlX reduce and destroy the
environmental resource of Lake Minnetonka. These excessive lakeward
encroachments directly downgrade the water quality, the navigability of
the lake, the desirable habitat for various wildlife species which
include water fowl and fish. These excessive lakeward encroachments
have limited the enjoyment of and use of Lake Minnetonka by other riparian
owners and members oP the general publicj Speci�i.cally� the marinas
extension of docks and mooring areas beyond the 200 foot line obstructs
navigation and use o� the public waters.�
Resolution No. 1104
Page 4
16 . It is fundamental that a riparian owner ' s rights are
measured by the necessities and character of his use. The marinas,
for private commercial gain wish to temporarily and, in fact, permanently
alter the use of the surface water in Lake Minnetonka. Certain sections
of the lake, once a source of excellent fishing, have been converted and,
in fact, in the future will continue to be converted into a commercial
enterprise all to the detriment of other riparian owners and the public.
The marinas present operations and contemplated operations far exceed
a reasonable use of their limited riparian right.
17 . The most general public use of �vater is paramount and
should take priority over the excessive riparian use for commercial
purposes of the lake by the marinas.
18 . The marinas have separated and disassociated from the
normal riparian rights in many sections of the public waters on Lake
Minnetonka by having extended their docks out into Lake Minnetonka beyond
the point of navigability taking away the reasonable riparian rights of
other riparian owners and members of the general public who obtain access
and use of Lake Minnetonka by use of the public access points along
Lake Minnetonka. Such commercial transfer.s of the riparian rights
of Lake Minnetonka have resulted in an abuse of reasonable riparian
access to Lake r4innetonka. Such abuses must be qualified, restricted
and subordinated to the paramount rights of the public to the public
waters of Lake P�innetonka.
19 . The character of the change of the use of Lake Minnetonka
by the marinas through the years is one that has affected adversely the
general public. These changes are manifestly detrimental to the rights
peculiar to the general public. The extent to which the public could
otherwise enjoy the public waters of Lake Minnetonka has been changed
and detrimentally affected by the expansion of the marinas through the
years.
20. The marinas have failed to show that their excessive use
of Lake Minnetonka is in any way reasonable.
21 . When the rights of other riparian owners and the rights
of the public generally are contrasted with the marinas commercial and
excessive use of their limited riparian rights , in order to maximize
their economic return from harboring additional boats both on and off
the public waters of Lake Minnetonka, the marinas excessive use of the
lake must be curtailed.
. „
Resolution No. 1104
Page 5
22. The above findings of fact relate not only to the
extension of docks and mooring areas into Lake Minnetonka, but also
relate to the dredging of public waters which dredging has been
documented by the Grey Freshwater Biological Institute and other
responsible agencies to be a detriment to the public, present or
future users of the public waters .
23 . All of the commercial marinas are located adjacent to
properties which are residentially zoned and/or residentially used or
are in fact surrounded by residentially zoned and used properties.
24 . All of the commercial marinas began as and have
historically operated as small fishing ports and bait shops serving the
general boating public with boat rental, fuel , bait and boat servicing.
25. Over the past fifteen years , the scope of commercial
marina operations has radically changed to the current emphasis upon
showroom sales of expensive watercraft and accessories and the pro-
liferation of slip and mooring rental for the exclusive storage of
watercraft on public waters by a limited number of private individuals .
26 . Over the past fifteen years , the rental of boats to the
general public, the launching and servicing of boats owned by the general
public and the sale of bait and fuel to the general public have been
reduced, eliminated or made difficult and expensive to the point of
discouraging access for the general public in favor of catering to the
few boat purchasers and slip and mooring renters.
27. The new emphasis upon slip and mooring rental has been
accompanied by expansion of the n�mber, size and extent of dock facilities
and off-shore buoys over and upon large areas of the public waters thereby
creating a public harm by excluding the general boating public from
those waters .
28 . The expansion of the commercial dockage facilities by
commercial marinas has directly and adversely affected the lakeward access
for adjoining residential properties. That expansion has also resulted
in congested dockage and off-shore buoy facilities which have created a
visual blight upon certain areas of Lake Minnetonka.
29. The new emphasis upon showroom sales has been accompanied
by immense increases in the number of watercraft, trailers, and parts
stored on land as part of inventory for sale with the accompanying on-land
zoning problems. These functions could be better handled in the normal
commercial zones of the City of Orono without adversely affecting the
important environmental resource belonging to the public generally. The
general expansion of commercial marina operations along the shore of
Lake Minnetonka has been accompanied by the excessive removal of trees
and natural vegetation to allow for increased storage areas , parking and
buildings, thereby creating a public harm by increasing surface water
runoff and pollution hazards, flooding of neighboring properties,
siltation into the lake and a general decrease of the water quality of
Lake Minnetonka.
. � •
Resolution No. 1104
Page 6
30. The general expansion of commercial marina operations
along the lake and the operation of those facilities from dawn to dusk
and later, seven days a week, creates continuous noise, litter, dust,
garbage, traffic congestion and parking problems for the adjoining
neighborhoods. These marina facilities and the activities attendent
thereto have become visual blights in residential areas , general public
nuisances and a constant source of numerous complaints by adjoining
landowners.
31. The lease or rental of dockage on public waters or
space upon land for summer season storage of boats f�r private
individuals is not a permitted or a conditional use authorized in any
zoning district within which the commercial marinas are located.
32. The rental to private individuals of dockage is therefore
and has always been an illegal use of property by the commercial marinas
and at best can only be considered to be a legal non-conforming use .
The City Council , recognizing the common practice of dockage rental in
the past, has issued licenses for a reasonable number of nonconforming
slips subject to reasonable performance standards established by
Chapter 73 of the Municipal Code.
33. As a condition to the issuance of the 1975 commercial
marina licenses, each commercial marina operator agreed with the City
in writing to an Operations Agreement outlining a three year-phased
improvement program established to replace natural vegetation previously
removed, to provide for adequate storm water runoff controls, to provide
for open space and vegetation buffers between the marina properties and
adjoining residential properties , to provide for adequate parking and
traffic control and to provide for reasonable performance standards
relating to the nonconforming placement and use of docks and mooring
spaces upon the public waters.
34 . All of the requirements of the 1975 Operations Agreement
are reasonable exercises of the normal police powers of the City of Orono
intended to correct the previous abuses and overuses of public waters
and the congested commercial marina sites, to correct for the public harm
caused by such abuses and to prevent future abuse of the land or the
public waters.
35. All of the requirements of Chapter 73 of the Orono Municipal
Code regulating commercial marina operations, Statute 35. 100 of the Orono
Zoning Code regulating the use of lakeshore business district property
and the 1975 Operations Agreement are in full conformity with the
applicable regulations and intents and purpose of the Lake Minnetonka
Conservation District ' s regulations for commercial marinas and the State
of Minnesota, Department of Natural Resources ' regulations for protection
of public waters.
A � '
Resolution No. 1104
- Page 7
36 . None of the commercial marinas have fully complied with
the 1975 Operations Agreement. There has been a general lack of good
faith on the part of the marina operators , who have exhibited disregard
for complying with the provisions of the 1975 Operations Agreement and
disregard for the legitimate concerns of their residential neighbors and
the public at large.
AND, BE IT FURTHER RESOLVED, that the City Council of the City
of Orono hereby makes the following specific findings based upon McCleary' s
May, 1979 Stubbs Bay r4arina Dock License Application:
l. The original application for a 1979 license at this location
was made by George Johnson, which application was subsequently withdrawn
by Johnson and formally denied by Resolution No. 1044 .
2 . Staff review of the May application showed a dock plan
_different than the docks in place in the water, docks extending of�
residential property, docks extending beyond the LMCD authorized dock
use area and no provisions for restrooms , security, on-site personnel
or general property clean-up.
3 . The City Council had McCleary' s application on the agenda
at numerous Council meetings throughout the year including the meetings
of June 12th, July lOth, July 24th, August 14th and August 28th. In
each case the Council tabled review of the application at the specific
request of McCleary or his agent.
4 . The City Council received an entirely new plan at their
meeting of October 30, 1979 which plan did not conform to the May plan,
nor did it conform to the docks in place all year. This plan was
referred to City staff for initial code review. The staff on
November l, 1979 made a written request for additional information
and/or explanation of certain plan contents which apparently do not
conform to City or LMCD requirements, including the following:
a) dock plan requiring setback variance from south
property line
b) dock plan extending beyond LMCD designated authorized
dock use area and beyond B-2 zoning boundary
c) land development plan including construction within
federally designated flood plain without application
for nor documentation of necessary variances, fill
permits or sewage disposal method
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Resolution No. 1104
- Page 8
5 . Many of the performance standard deficiencies and/or
unanswered technical questions of McCleary' s October plan are the same
or similar to such deficiencies or questions on Johnson' s plan which
problems were cited in Resolution No. 1044 as reasons for application
denial. McCleary was sent a copy of Resolution No. 1044 upon its
adoption in June, 1979.
6 . At no time did McCleary, his attorney or his plan designer
call the City or meet with City staff to review ordinance requirements
prior to submittal of the October plan.
7 . A meeting was held between McCleary, his attorneys and
City staff on December 7 , 1979 at which time they provided a written
response to the staff letter therein requesting conceptual approval
of the October plan prior to resolution of the issues raised above.
8 . At this meeting, and at the subsequent Council meeting
of December 11, 1979, McCleary also raised the possibility of alternative
uses of the marina property including residential development of that
property and perhaps including adjacent properties as well .
9 . The Council on December 11 , 1979 adopted Resolution
No. 1099, a comprehensive study of the entire Stubbs Bay Area including
references to all history and/or factual resources pertinent to the
marina property and all development restrictions inherent in that
property.
10 . The Council on December 11, 1979 also directed staff to
expend all reasonable resources to work with McCleary in studying
alternative residential uses of his Stubbs Bay property.
11. The entire 1979 boating season and in fact the entire
year have past without issuance of a 1979 commercial dock license for
the Stubbs Bay Marina. McCleary rented dock space in the summer with
periodic inventories by the City showing approximately 30 boats on the
property and/or at the dock at any given time.
12. At no time has the City ever cited McCleary for operating
without a license in 1979 nor does the City expect to do so. On the
contrary, the City has been patient all year continually waiting for
McCleary to supply plans and applications in conformance with established
performance standards and/or to enter discussions concerning the property.
D � • �
Resolution No. 1104
_ Page 9
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the
City of Orono hereby denies the 1979 Commercial Dock License Application
of James K. McCleary and Stubbs Bay Marina because said application and
amendments do not conform to the Ordinances of the City or the LMCD and
do not conform to the actual use of the property throughout 1979 , with
the understanding that such denial does not prejudice the City Council
against consideration of all proper and conforming uses of the land as
may be determined by future review of the plans now on file with the
City and/or by future decisions arising from the zoning studies and
feasibi�ity studies ordered by Resolution No. 1099 .
Adopted by the City Council of the City of Orono on this
15th day of January , 1980.
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� �, ��`%�
William B. Van Nest, ayor /
ATTEST:
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Walter . Benson, Clerk Administrator