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HomeMy WebLinkAboutResolution 1043 ti,y. :? ...�.. �. ' . . ` � ...�.;f.�. � � - � RESOLUTION N0. 1043 �� . - . RESOLUTION DIRECTING STAFF TO ISSUE A JOINT USE DOCK LICENSE _ TO FOXHILL HOMEOWNERS ASSOCIATION SUBJECT TO CONDITIONS NOTED HEREIN FOR THE PERIOD OF JANUARY l� 1979 to December 31, 1979 WHEREAS, the City of Orono, hereinafter "City" 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 and other members of the public within ' the City; and , . WHEREAS, the City shares concurrent jurisdiction over the primary harbor limit of the City of Orono with the Lake Minnetonka Conservation District. and the Department of Natural Resources of . � the State of Minnesota ; and � WHEREAS, 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 a dopted rules to insure to all equal enjoyment of the public rights and equal protection from activity on or near the public waters and on the land within the City which, if unregulated, � may be � detrimental to the public health, safety and general welfare; and -- WHEREAS, the regulations of the DNR, LMCD, and the City of Orono regulate the property rights of the riparian owners both as to residential owners and the co�ercial marina owners, to the extent .. prohibiting any interference with the public waters a djoining their property. The LMCD, DNR and City of Orono must fulfill their trustee- ship over the public waters by protecting against interference by anyone, including those who assert the commonlaw rights of riparian owners, whether or not they be commercial marinas or residential owners ; ' and. . WHEREAS, as to Lake Minnetonka, a mutual right of enjoyment exists between and is shared by riparian owners and the public generally, no one riparian owner has exclusiv� privileges over Lake Minnetonka. The only additional private right that any riparian owner may have over the, public generally is to construct one dock to the navigable depth of the public waters . T'here 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 purpose"s ' in �oIIUnon with all other riparian owners. Tlzis right is a right not only to members of the public but the right to each riparian owner. ..+j 1 � , -y . ",^ t s '-' �' ' Resolution No. 1043 � � . Page 2 , . . .-. � � � 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 owner has no exclusive priVileges . to these rights ; and � , WHEREAS, Lake Minnetonka is capable of substantial beneficial public use only as long as a11 riparian users of the lake a re regulated in such a way as to insure there is no abuse of the limited riparian rights ; and � � WHEREAS, the City has adopted reasonable regulations regarding the construction and use of lakeshore and dock facilities , when such facilities are used and maintained by three or more families, which regula'tions include the annual licensing of Joint Use Docks � � pursuant to Chapter 74 of the Orono Municipal Code; and � . WHEREAS, the purpose of this Resolution is to set forth the above noted general conditions and concerns and the following special conditions as they relate to an application for an annual Joint Use Dock License described on Exhibit A attached. � NOW, THEREFORE, BE IT RESOLVED, that the City Council of • the City of Orono hereby directs the staff to issue a Joint Use Do�k Licerise according to the facts and conditions noted on Exhibit A , B & C attached. � Adopted.by the City- Council of the City of Orono at their meeting on the � �th day of -June , 19 79 , - �� . William B. Van Nest, Mayor ' Wa1_ter B, Massengale, Acting Ma.yor ATTEST: � Walter R. Ben n, Clerk/Admi ' rator � . . � 1� � , ' , . � n ' +, - CITY OF ORONO '� . ' EXHIBIT A . RESOLUTION N0. 1043 • rONDITIONS OF ISSUANCE FOR ANNUAL JOINT USE DOCK LICENSE I. LICENSEE Foxhill Homeowner' s Association Dock Address 18p1 Shoreline Drive Agent Mr. Owen Parr Address 1190 Herita�e Lane, Wayzata , Minnesota 55391 • Licensee is: unincorporated homeowner' s group � incorporated homeowner' s association - . unincorporated club or recreation group incorporated club or recreation group . other � License Period - January 1, 19_�_ to December 31, 19 79 � II. BOAT DENSITY • , � • T'he number of in-place boat slips, lifts and buoys shall not exceed the .number shown on the attached plan, Exhibit B, a�d in accordance ' with Resolution 938 , in no case shall the number of authorized boat - slips, lifts, or buoys exceed the number permitted in the permanent � a�uthorization. - Authorized Boat Density per attached plan: � � gay Smiths Transient (Day use only) Slips 0 , Permanent Moorage Slips � 13 Boat Lifts � Sub-Total: S.Iips at Docks 13 Offshore buoys '0 Maximum Boats in Water per plan 13 • �� MAXIMUM BOAT DENSITY AUTHORIZED 16 per Exhibit C Exceeding this maximum boat density, or exceeding the number of permitted slips , lifts or buoys is a violation of this license subject to revocation and/or prosecution for violation of Section 74. 010 of the Orono Nfunicipal Code. ' . � �`�' . ' . , ,. 1• J��' ' Exhibit A . Resolution No. 1043 � • � Page 2 III. DO�K LAYOUT The dock structure or layout authorized by this license shall be as shown on attached Exhibit B, Any changes in this layout shall be . subject to prior review and �approval of the City Council. IV, SPECIAL CONDITIONS required for compliance with the ordinances of the City and/or the LMCD. The issuance of this license is subject ' to full compliance with these conditions . Failure to comply with these conditions is cause� for license revocation and/or prosecution by the City. . 1. The maximum number of slips or moorings to be. licensed in � the future shall not exceed 16 provided that for any given year, the license shall be issued for no �more than 1 boat - ` per residence in the Foxhill Subdivision according to the findings in Exhibit C attached. � 2. The Foxhill Homeowner' s Association shall remove the lakeshore � � structure (wooden deck) insta.11ed without a permit during 1978, such removal to be completed no later than June 1, 1979. 3. The Foxhill Homeowner's Association shall provide for the summer storage of dock parts, sections and equipment according to the requirements for exterior storage in residential districts, which requirements� prohibit such storage on the Association' s Outlot ��1. All such- storage now existing must be removed no later than June 1, 1979. 4. , Winter storage of clock parts and sections shall be permitted on Outlot ��1� between the time the dock is removed from the lake in the fall and June 1, of the following year. V. Nothing in this license shall confer upon any person for the benefit of any property any vested right to use Lake Minnetonka or the premises in a manner permitted by this resolution, but the use of Lake Minnetonka and the premises shall remain subject to such regulations and ordinances as the City and other competent regulatory authorities shall deem necessary from time to time in the public interest. 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RESOLUTION N0. 1042 � . � EXHIBIT C TO RESOLLTTION N0. 1043 FINDINGS OF FACT, CONCLUSIONS AND STIPULATIONS REGARDI�NG � MAXIMUM AU'THORIZATION FOR JOINT USE RESIDENTIAL DO�K � LICEnSES ISSUED TO FOXHILL HOMEOWNER' S ASSOCIATION WHEREAS, the City Council of the City of Orono has adopted in Resolution No. 938 a policy that prohibits future expansion of the number of slips licensed at Joint Use and Commercial Multiple Docks ; and WHEREAS, under G'hapter 74 of the 'Orono Municipal Code, the City of Orono issues annual Joint Use Dock Licenses based upon the . actual number of slips to be constructed and in �se during any given year; and � WHEREAS, Foxhill Homeowner' s Association, hereinafter "Foxhill" has previously applied for and been issued annual joint use dock licenses � based upon the actual number of slips to be used in each year, whicYi number has been less than the actual number of inembers in said Associatior. • and WHEREAS, Foxhill and the City �ouncil wish to establislz for the record the maximum number of slips to be authorized and licensed for Foxhill in the future consistent with the policies established in Resolution No. 938, � NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City" of -Orono hereby makes the following findings of fact, conclusions and stipulations regarding the issuance of future joint use dock licenses ' to Foxhill Homeowner' s Association: � . FINDINGS OF FA CT: � 1. The plat of Foxhill was approved by the City of Orono on March 22, 1965, said plat including Outlot ��1 having 293 feet of , lakeshore on Lake Minnetonka . -- • 2. Each owner of the platted lots owns an undivided �nterest in Outlot ��1 by� reason of their�membership in the Homeowner' s Association said ownership including the benefit associated with the ripari�n rights associated with said Outlot. • � . . . � � � . . ` ' • Fcsolu�ion No. 1042 Exhibit � to Resolution No. . 1043 • • Page 2 3. Outlot ��1 Foxhill is located in a residential zone. No corr�nercial activities are permitted within the zone and no . commercial uses are being carried on from said property. 4. T'he By-Laws of the Foxhill Homeowner' s Association provide that the boat slips or moorings are for the use and benefit of the homeowners within the plat of Foxhill and are not rented, leased or otherwise used by any person who is not a homeowner within ' the plat of Foxhill and no income is derived fro m the use of said slip or mooring by either the homeowner or the Foxhill Homeowner' s Association. � ' S. Since 1969, Foxhill Homeowner' s Association has been issued annual joint use dock licenses froin the City of � Orono, to wit: 1969, 1970, 1971 : 3 docks and 1 buoy 1972, 1973 . 4 docks and. l buoy 1974, 1975 . 8 slips ' • 1976 : . 10 slips 1977, 1978 11 slips . 6. Since 1973, Foxhill Homeowner' s Association has been • issued a Iicense for sixteen or more boat slips and/or moorings from � the Lake Minnetonka Conservation District on an annual basis as set . forth in the records of Lake Minrietonka Conservation District. - 7. On April 8, 1974, the Orono City Council adopted a motion regarding future dock licens,e issuance for Foxhill, to wit: " Joint Dock License - Foxhill Association r . � Paurus moved, Welsh seconded, to approve the . . Foxhill application for slips . The Council will approve eight slips for this year oritly and it is the Council ' s desire �that the Foxhill Association will present on�a yearly basis the number of actual boats that they have to be put into the water and that the license will grant the . number of slips each year to correspond only to the number of actual boats in existence. The • Council further stipulates that� the maximum number of boat slips that will ever be authorized will be � sixteen. These stipulations are to be �considered permanent. Motion: Ayes (S) , Nays (0) . " � .� � , . t '. . ' • Resolution No. 1042 . Exhibit C to Resolution No. 1043 . Page 3 8, The homeowners within the plat of Foxhill relied on said motions and licenses and have. been allowed to . increase the number of boat slips or moorings up to its present number and have not constructed sixteen slips' on an annual- basis in reliance on the assumption that as the need arose, sixteen slips would be allowed. 9. Since the acceptance of the pla t of Foxhill various lots have been sold and purchased based upon representations that a .homeowner would be allowed to have a boat wh�.ch could be docked on Outlot ��1, Foxhill. � _ 10. The docks and moorings located in `the water adjacent of Outlot ��1 Foxhill have been and will be constructed to conform with the setback and length requirement which are provided for by the ordinances �of the Lake Minnetonka Conservation District. ' • 11. The approval of the plat of Foxhill and the establishme�t of the joint use residential dock on Outlot ��1, Foxhill predate the ' current Comprehensive Plan and Zoning Code of the City. CONCLUSIONS OF THE CITY COUNCIL: - _ 1�. The findings and conclusions of Resolution No. 938 refusing to grant increased boat d�nsity to any multiple dock licensee are consistent with the goals and policies of the City of Orono regarding . • comprehensive land use plans and the preservation of the quality of Lake Minnetonka . These findings do apply to Foxhill. Z, Prior to the adoption of Resolution No. 938, the City � Council authorized and aRproved up to a maximum of sixteen slips for Foxhill at th e �rate of one slip per residence, with no more slips to - be licensed each year than the number to be actually installed. These slips shall be considered as "existing" slips for purpose of applying Resolution No. 938. � 3. An increase in the number of slips or boats to more than one boat per residence or to more than sixteen total slips for the � As'sociation would be contrary to the policies established in Resolutian •-- � No. 9 3 8. . , ♦1 � ��� � � Fesolution �o. 1042 • � � Exhibit C to Resolution No. 1043 ' • Page 4 4. The �ity Council therefore reaffirms the prior approval of a maximum of 16 slips , or 1 boat per residence whichev er is less, for Foxhill Nomeowner' s Association, subject to the following stipulations STIPULATIONS OF APPROVAL: � 1. Construction and use of docks on Outlot ��1, Foxhill by Foxhill Homeowners Association shall remain subject to the provisions of Chapter 74 of the Municipal Code including all the requirements for annual license applications . - 2. The maximum number of sl�ps to be licensed in the � future shall� not exceed sixteen provided that for any given year, � the license shall be issued for no more than �one boat per residence . • in the Foxhill Subdivision, whichever as less . For the purposes of this Resolution, the term "slip" shall include all boats kept at ' docks, slips, buoys, moorings, lifts or otherwise anchored or stored at this site. . " • � 3. No boat slip or mooring need be actually constructed for - any homeowner who does not wish to dock or moor a boat during a boating season and the failure to construct a boat slip or mooring shall not be evidence of the abandonment of the right to construct a boat slip or mooring during a subsequent year. 4. All boat slips shall be for the exclusive use of the owners of residential units within the plat of Foxhill and no incame shall inure directly or indirectly to the Foxhill� Homeowners Association or a homeowner_ from the use of said boat lip or mooring. 5. All boat slips and moorings shall be constructed and installed so that the dockage or moorings are within the setback and length limits that are es�tablished by the Lake Minnetonka Conservation District in their authorized dock use area regulations . S - 6. No storage or �accessory structures shall be constructed � on Outlot ��1 Foxhill and all dock parts, -materials and dock sections kept on the property shall b'e stored in a neat and orderly fashion and any dock parts, material or dock sections which is not going to ' be used during the boating season shall be removed from the property by June 1, of each year. . _ � . �.� � � �� •:y� � � i • . • Resolution No. 1042 - - • Ehhibit � to Resolution No. 1043 Page 5 7 . The Foxhill Homeowner ' s Association will agree to deed restrictions with the City of Orono, wherein the Foxhill Homeowner' s Association agrees to waive any riparian rights that it may have to the dockage or mooring of any boats in excess of sixteen or any use of Outlot ��1, Foxhill which is inconsistent with this Resolution. 8. Foxhill Homeowner' s Association shall submit a dock layout plan to be attached to this Resolution, which plan shall show a dock structure layout designed to accommodate a maximu.m of sixteen slips all within the authorized dock use area as established by the ordinances of the Lake Minnetonka Conservation District. This dock layout shall be the basis for the layout of docks to be constructed each year according to the annual license. No part of this dock layout shall require any dredging or other altera�tion of the existing� - shoreline or lake bed to accommodate boats at the' locations shown thereon. 9 . Foxhill Homeowner' s :Association shall .submit the above , plan with each application for ari annual city joint use dock license � • showing thereon which slips are to be -constructed that year and which slips are to be omitted that year. The maximum number of slips to be � constructed each year shall not exceed the number of residences oecupied in the Foxhill Subdivision. � • 10. Nothing in this Resolution shall prohibit Foxhill from proposing revisions to the above dock layout plan provided all p�oposed rearrangements continue to comply with all required dock use area _ - _ regulations as they may exist� at such time and provided that the maximum number of boats or slips remains th� same. � _ 11. Nothing in this Resolution shall confer upon� Foxhill Homeowner' s Association or upon any memb er thereof any vested right to use Lake Minnetonka or the premises in a manner permitted by this Resolution, but the use of Lake Minnetonka and the premises shall remain subjec�t to such regulations and ordinances as the City and other comp:etent regulatory authorities shall deem necessary from time to time in the � public interest. . . • � . . ` ' ��t� .,�.3r, . �. . ... � . �. � ' O � V • . , • Resolution No. 1042 . - . • � Exhibit C to Resolution No. 1043 Page 6 12, The approval of any given maximum number �f slips in no way guarantees that all permitted slips can actualZy be constructed or used during any given season if the natur�l condition of Lake Minnetonka should affect water depth or access t� the authorized dock use area, � This approval shall not be precedent or cause for Foxhill seeking or the City or any other agency approving any future. application for dredging or dock use area variance. Adopted by the City Council of the City of Oro�.o on the 12th day of . June , 1979. � � . William B. Van Nest, Mayor ' Walter B. Massengale, Acting Mayor . ATTEST: _ � - . � � Walter . Benson, Clerk/Administrator � . +` . " � . .::;y _ . • '• 1.�.' f.�y'., '� -' ..r ` . . . < 'µ .. ....�� ., . ' � , `•.. . . �.'I-^' . . I _•C A � �.�'�, k«K.=.�9,1 •^ . � • ,r"i �f..` •ar`�:.,h �4 '..�.i .. �.. k. '�� .�� 1�-.. ' . �3�'�y�� . . - -� , ` . ' ' $��s�'.. . ,�s���.,u1,ry 3y '��, . .. . _ . . 's . . 71 .3' . � r . .. _ . � ..4 . .t.�t.n . .._ � , . '