HomeMy WebLinkAboutResolution 1096 r . ~ ' , .
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' f RESOLUTION N0. 1096 _
� A RESOLUTION TO DENY THE 1979 COI��IERCIAL �
DOCK LICENSE APPLICATION �OF NORTH SHORE �DRIVE MARINA
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WHEREAS, the City of Orono is a municipal corporation
organized 'and existing under the laws of the State• of Minnesota
and has the suthority 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 t�ie City of Orono there exist several
commercial marinas engaged in 'the business of renting slips and
mooring spaces on public waters, and •
WI�REAS, the City of Orono has determined that such '
co�ercial activity on public wa ters within the City of Orono
and on the land within the City of Orono is sub j ect to the
regulations of the City of Orono, including compliance with all the �
•annusl licensing requirements of `.'hapter 73 and Sections 35.100, et seq.
of the Municipal Code; and • • �
. WHEREAS, North Shore Drive Marina, has made �application for
a 1�979 Commercial Dock License from the City, which application is not
in compliance with the regulations of the City or the LMCDr
NOW, THEREFORE, BE IT RESOLVED, that the Citp Coimcil of
• the City of Orono, after years of exterisive review of the impact of
the coffiercial 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: . -
1. Minnesota Statutes, State Statute 412, et. seq. and �
State Statute 462, et. seq. grant to the Citp 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 harbo,r limits of the �City of Orono,
which activities map adverselp affect the health, safety and general
welfare of 'the� citizens of the City of Orono and other membe�s of the
�public within the City of Orono. '. � � . �
2. The prima.ry harbor �imit of- the City of Orono is 300 ft.
lakeward from the ordinary high water mark of Lake Minnetonka. .
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� Resolution No. �1096
� Page 2 . . -
. 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 swi�ing, 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 regulatioris,� 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 Minriesota ' �
and the political subdivisions thereof in exercise of the legislative
law mak.i.ng 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 clashi.ng of public and
private interests and resulting public disorder. '
9. In manp waps� the development and management of marinas
�ithin the City of Orono are peculiarly subject to the local
regulations of the City.
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Resolution No. 1096
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10. The regulations of the DNR, LMCD and the City of �
�Orono regulate the property rights of the riparian owners bot:h _
as to single family residential owners and the cou�ercial marina
. owners, to the extent prohibiting any interference with the public
� waters ad3oining that property. The LMCD, DNR and City of Orono
' must fulfill their trusteeship over the public waters by protecting
! against interference by anyone, including those who assert the
i . comomonlaw rights of riparian owners , whether or not they b�e commercial
' marinas or single family residential owners. .
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c 11. As to Lake Minnetonka, a mutual right of enjoyment
` exists between and is shared by riparian owners and the public
, generally. The marin,as have no exclusive privileges over Lake - �
� Minnetonka. The only additional private rig�it tha't 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 Mirinetonk.a 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 awne"r. 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 �ain 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
li_mited 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 navigability; 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.
" Resolution No. 1096 -
• ` Page 4 � .
15. It is a well knawn fact that marinas in the rtast
have indiscriminately extended their docks �ar beyond the point of
navigability into Lake Minrietonka in such a way as to greater reduce
and destroy the environmental resource of Lake Minnetonka. The$e
excessive lakeward encroactunents directly downgrade the water quality,
the navigability of the lake, the desirable habitat for various
wildlife species which include water fowl and fish. These excessive
lakeward encroachments have limited .the enjoyment of and use of
Lake Minnetonka by other riparian owners and members of the public.
Speci€ically the marinas extension of docks and mooring areas be ond
the' 200 foot line obstructs navigation and use of the public waters.
� 16. It is fzmdamental that a riparian owner's rights are
measured' by the necessities and character of his use. The marinas,
for private commercial gain wish to temporarily and, in fact,
permanently, alter the use of the surface water in Lalce Minnetonka.
Certain sections of the lake, once a source of excellent fishing,
have been converted and, in fact, in the future will continue to be
coriverted, into a co�ercial enterprise all to the detriment of� other
� riparian owners and the public. The marinas present operations and
contemplated operations far exceed a reasonable use of their. limited
riparian right. � �
17• The most general public use of water is paramount and
should take priority over the excessive riparian use for co�ercial
purposes of the �lake by �the matrinas. �
1$• VThe marinas have separated and disassociated from the
nonmal riparian rights in manp sections of the public waters on Lake
Minnetonka by having extended- their docks out into Lake Minnetonka
beyond the point of navigability and .have transferred those rights
to others who do not have riparian rights and who are not members of
the general public who ob tain access and use� of Lake Minnetonka by
use of the public access points along Lake Minnetonka: Such commercial�
transfers of the riparian rights of Lake Minnetonka have resulted in -
an abuse of reasonable riparian access to Lake Minnetonka. Such
abuses must be qualified, restricted and suborclinated to the paramount
rights of the public to the �public waters of Lake Minnetonka.
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. T'he extent to �which the public could
otherwise enjop the public waters of Lake Minnetonka has been changed
and� detrimentallp affected bp the expansion of the marinas through the
years. �
Resolution No. 1096
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20. The .marinas have failed to ahow that their excessive
use of Lake Minnetonka is in any' way reasonable. _ .
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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.
22. The above findings of fact relate not only to the
extension of docks and �m�oring areas into Lake Minnetonka but also
relate to the dredg�ng of..public waters which dredging has proven �
time after time to be a detriment to the public, present or future
users of the public wa ters. �
23: All of the coffiercial 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 co�ercial 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 co�ercial . -
marina operatiorts has� radically changed to the current emphasis upon
showroom sales of expensive watercraft and accessories and the
proliferation of slip and. mooring rental for the exclusive storage
of watercraft on public :waters by a li_mi.ted number of private �
individuals. � �
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' 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 .arid 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 fe�a boa'� purchasers and slip and mooring renters. �
�7. The new emphasis upon slip and mooring rental has been
accompanied by expansion of the number, size and extent of dock
�facilities and off-shore buoys over and upon large areas of the public
waters therebp creating a public harm by excluding the general boating
and public from those waters. _
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Resolution No. 1096 •
� Page 6 -
28� Z'he expansion of the commercial dockage facilities by
commercial marinas has directly and adversely afa���dansionahasaalso
access for adjoininedrdockageiandPoffeshore•buoy facilities which -
resulted in congest
have created a visual blight upon certain areas of Lake Minnetonka.
29. #Z'he new emphasis upon showroom sales has been accompanied
by iu�ense 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 thetaltresource b longing to theepublic
affecting the important environmen .
generally. �e general expansion of commercial marina operation s
along the shore of Iake Minnetonka hasIb�o allow foriin ceased storage e
remnval of trees and na tural vegetatio
' areas, parking and buildings, tliereby creating a public harm by �
increasing surface water nmoff an��l�eilalceaandda�generalndecrease
neighboring properties, siltation
. of the water quality of Iake Minnetonka.
30. The general expansion of com�ercial marina operations
along the lake� and the operation ofe�continuoustnoise,�litter,tdust,k
and� later, seven days a week, creat - roblems for the adj oining
garbage, traffic congestion and parking p
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 _
adj oining landowners. .
' 31. The lease or rental of dockage on p�blic waters or
space upon land for sLmmer season storage of boats for 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 beractice of do kage�ng
use. 'The City Covmcil, recognizing the common p
• rental in the past, has issued licenses for a reasonable number of
sli s sub 'ect to reasonable performance s tandards
nonconforming P �
• established by Chapter 73 of the Municipal Code.
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• Resolution No. 1096' . f ' '
• Page 7 . . . .
33. As a condition to the issuance of the 1975 com�ercial
marina licenses, each commercial marina operator agreed with the City
in writing to an Operations Agreement outlin3ng 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. bet�aeen the marina -
properties. and �ad,joining residential properties, to provide for
adequate p�arking and traffic contro.l 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 co�ercial marina sites, to correct for the
public haxm caused by such abuses and to prevent future abuse of the .
land or the public waters. , .
. 35. All of the requirements of Chapte,r 73 of the Orono
� Municipal Code regulating co�ercial marina operations, 'Statute �
35.100 of the Orono Zoning Code regulating the use of lakeshore .
. business district property and .the 1975 Operations Agreemeat are in
full conformity with the applicable regulations and intents and .
purpose of the Iake Minnetonka Conservation District's regulations
for co�ercial marinas and the State of_Minnesota, Depar�ent of
Natural Resources' regulations for protection of public waters. . .
36. _ None of the commercial marinas have fully camplied 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 comiplying with the provisions of the 1975. Operations Agreement .
and disregard for the legitimate concerns of thei.r residential neighbors
� and the public at large, ' �
AND, BE IT FURTHER RESOLVED, that based upon the �s�uclies arid
findings pertaining directly to this Marina' s 1979 Commercial: Dock
License application, the .City Council of the City of Orono hereby denies
the February 9, 1979 application for a City of Orono Commercial Dock
License for North Shore Drive Marina because of one or more of the
general reasons set forth above, and one or more of the following
findings of fact: _
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� � R�solution No. � 1096 .
Page 8 • .
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� l. The LMCD denied applicant' s 1978 dock license because
the dock violated the LMCD ordinances by encroaching beyond
200 feet from the shoreline and because the, dock layo'1xt, in �
place did not conform to the site plan submitted for approval.
' 2. The 1978 City License was issued contingent upon com-
pliance with the City' s and the LMCD' s ordinances and _
Resolution No. 996 specifically called attention to the ,
� likelihood of dock extending beyond 200 feet and that such
dock extensions were considered violations of City ordinance.
3. The 1979 dock plan originally submitted by the applicant
� is the same plan submitted to the City and the LMCD in
1978, which dock plan and docks were then and are still in
violation of both LMCD and City ordinances. Moreover,
' applicant has shown no intention to reconstruct the docks
in compliance with City and LMCD ordinances. ,
4. As early as February, 1979, the applicant was advised
to submit a revised dock plan conforming to the 200 foot
maximum dock length. The applicant' s response was that he
would produce a certificate of survey proving that all
docks �did in fact comply with this requirement. The survey
� was done as of April 18, 1979� at which time, if not before,
the applicant knew or should have known that the docks were
in fact in violation of the ordinances. Repeated efforts
. by the City to obtain a copy of the survey were rebuffed
until June 25, 1979 when an incomplete survey was received. -
Again, repeated attempts to have the shoreline accurately
shown on the drawing were rebuffed until August 9 , 1979
when the applicant submitted the current drawing, which
drawing confirms the existence of docks extending into the
lake more than 200 feet from shore in violation of the
ordinances. The applicant' s only response to thi:s fact
was then for the first time to question the definition of
• � "shoreline” . At no time was the City ever aware of any
attempt by the applicant to revise his dock layout to be
in conformance with the law.
5. The berm and baffle weir required by Item 4 of the
district court stipulation in 1977 has not y.et been completed,
and applicant is in violation of the terms thereof.
6. The lilac hedge screening required by Item 2 of the
1977 stipulation has not been installed, and applicant
is in violation of the terms thereof. � '
' 7. The fence installed along North Shore Drive has not
• been properiy maintained and presents a poor image of the
marina to the general public.
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Resolution No. 1096
Page 9
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8. The City Council many times requested that North �hore
Drive Marina submit a revised 1979 Commercial Dock License
Application addressing the specific items of non-compliance
noted above. North Shore Drive Marina has failed to revise
its plans in conformity with these requests and therefore
the existing docks and marina operation remain in violation
of City and LMCD ordinances .
9. At the specific request of the applicant, City Council
action on this application has been repeatedly deferred
all year long to allow the applicant additional time to
submit evidence, to amend his application, or to supply
any new facts or arguments toward convincing the City and/or
the LMCD to change their long standing interpretation of
the definition of "shoreline" and/or the basic intent
of the City and LMCD ordinances. No new information or
arguments have been forthcoming and the City and LMCD
have declined to change their interpretation of the
Ordinances. The City has no recourse but to deny the
application as presented as being in violation of the law.
10 . Any docks or marina operation in violation of the
• Ordinances of the City or the LMCD are contrary to the
adopted comprehensive plan and policies of the City as
summarized in this Resolution.
Adopted by the City Council of the City of Orono at their
meeting on the ?.7 day of rdovermber , 19 79
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William B. Van Nest, Mayor
ATTEST:
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Walter R.,% enson, Clerk/Administrator
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