HomeMy WebLinkAboutResolution 929RESOLUTION NO. 929
. A RESOLUTION DENYING A REZONING
APPLICATION BY JAMES K. MCCLEARY
WHEREAS, the City of Orono is a municipal corporation
organized and existing under the laws of the State of Minnesota; and
WHEREAS, the City of Orono has authority and responsibility
under Minnesota Statutes Section 412 et. seq., 462 et. seq. and other
applicable sections to protect the health, safety and general welfare
of the citizens of the City; and
WHEREAS, pursuant to the authority noted above, the City
Council has adopted a Comprehensive Guide Plan on December 2, 1974; and
WHEREAS, effective January 1, 1975, the Orono City Council
adopted Ordinance 172, the Zoning Code of Orono, Minnesota, for the
express purpose of implementing, administering and enforcing the intents
and purposes of the Comprehensive Guide Plan; and
WHEREAS, Section 34.000 et. seq. and 34.300 et. seq. of the
Orono Zoning Code prescribe certain permitted uses and performance
standards for Single Family Lakeshore Residential property designated
&y the Zoning Code as the LR-lA district; and
WHEREAS, the stated purpose of the LR-lA use district is to
allow a combination of low density residential development and limited
agricultural activity while protecting the natural resources of Lake
Minnetonka and Long Lake from storm water runoff and the effects of
dense development.
WHEREAS, Section 35.100 et. seq, of the Orono Zoning Code
prescribes certain permitted uses and performance standards for Lakeshore
Business District property designated by the Zoning Code as the B-2
district; and
WHEREAS, the stated purpose of the B-2 use district is to
allow limited commercial business development to service boats used
for recreational purposes on Lake Minnetonka, to require partial
restoration of the shoreland vegetation that will serve to avoid pollution
of the lake water, and insure protection of adjacent residential
properties which have previously suffered from the unregulated
expansion of commercial activities.
WHEREAS, on April 26, 1978, James K. McCleary, hereinafter
-cCleary, made an application to the City for rezoning of certain property
rom the B-2 use district to the LR-lA use district.
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NOW, THEREFORE, BE IT RESOLVED, that the City Council of the
City of Orono hereby makes the following findings of fact:
1. That McCleary owns three parcels of property in the
B-2 use district (block 7, Bayside Addition to Lake
Minnetonka; and lots 21 and part of lot 22, Aud. Sub. 203)
which property is occupied by a commercial marina business
known as Stubbs Bay Marina.
2. That the only reason the McCleary property was zoned
B-2 is that a small bait shop and fishing boat rental
business had operated on this site since the 1960's.
3. That all the surrounding property is zoned LR-lA,
Lakeshore Residential, or RR-lA or RR -1B, Rural Residential,
and all the surrounding property is occupied as single
family residential property with no commercial use within
two miles of this property.
4. That McCleary also owns property in the LR-lA use district
• (lot 23, Aud. Sub. 203) which property is occupied by a
residence and which residence uses a private dock on a parcel
of,property known as "part of lot 22, Aud. Sub. 203", which
parcel is separate from that parcel used for commercial purposes.
5. That the commercial property use is therefore inconsistent
with the surrounding residential land use.
6. That, effective January 1, 1975,when the current Orono
Zoning Code was adopted, this property could have been zoned
LR-lA with the existing marina being declared a non -conforming
use of property and that such a des ignatlon_.would have been
consistent with the surrounding land uses, consistent with
standard planning.practices and consistent with similar zoning
designations in other areas of the City.
7. That the historic use of the marina property was for bait
sales and fishing boat rental and that as an adjunct. to that
` use, certain temporary wooden docks were erected in the public
waters of Stubbs Bay, Lake Minnetonka, which docks were used
to service the fishing boats and fishermen utilizing the
services offered by the marina.
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8. That gradually over the years, but dramatically so since
1976, the marina has reduced the bait sales and boat servicing
functions and has instead leased spaces at the docks and on
the public waters for the storage of privately owned boats.
9. That the Lake Minnetonka Conservation District, hereinafter
LMCD, has adopted certain rules and'regulations regarding the
licensing of multiple docks and commercial use docks on Lake
Minnetonka.
10. That the City of Orono has adopted by reference the same
regulations as promulgated by the LMCD.
11. That the LMCD, pursuant to its adopted regulations, has
defined an area upon the water of Stubbs Bay, Lake Minnetonka,
which area is the Authorized Dock Use Area, hereinafter D.U.A.,
applicable to -Stubbs Bay Marina, and within which area all
the marina docks must be contained.
12. That, in addition to the D.U,A., the LMCD regulations
require certain dimensional setbacks from the limits of the
• D.U.A. within which setbacks all the marina docks must be
contained,
13, That the Minnesota Department of Natural Resources,
Division of Waters, hereinafter DNR, also has statutory
powers of regulation concerning the placement of docks
on and within the public waters, including the docks placed
by McCleary in Stubbs Bay, Lake Minnetonka.
14, That the DNR regulations prescribe certain maximum slip
densities based upon the State Fire Code of Minnesota.
15. That the City of Orono Zoning Code regulations applicable
to the B-2 use district do not authorize, either as a permitted
use or as a conditional use, the construction`or use of docks
upon the public waters for boat storage or slip rental purposes.
16, That McCleary's Stubbs Bay Marina docks have been
constructed and used for commercial boat storage and slip
rental,
17. That at the present time, the only commercial activity on
• this property is the rental of boat storage space at the docks
which have been erected on the public waters of Stubbs Bay.
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18. That such dock construction and use is therefore a
nonconforming use as defined by the Orono Zoning Code and
at best is defined as a legal -nonconforming use.
19. That the docks as existing are in dangerous condition,
being structurally unsound, partially underwater and in
poor repair.
20. That Orono Zoning Code Section 31.106 requires the
removal of non -conforming structures which have a fair
market value of $3,000 or less, or in lieu of removal,
that the structures be brought into full compliance with
all other regulations of the Zoning Code.
21. That'McCleary's Stubbs Bay Marina docks have been and
are constructed in such a way so as to encroach the public
waters beyond -the authorized D.U.A.
22. That McCleary's Stubbs Bay Marina docks have been and
are constructed in such a way so as to encroach in front of
and within the authorized D.U.A. of adjacent residential
• properties (to wit: lots 23 and part of 22, Aud. Sub. 203,
owned by McCleary and lots 24 and 25,.Aud. Sub. 203, owned
by Dr. and Mrs. V. H. Larson. .
23. That Dr. and Mrs. V. H. Larson have publicly and for
the record complained about commercial expansion and
encroachment upon their D.U.A. and their reasonable riparian
rights.
24. That McCleary's subject application for rezoning involves
a small portion of his commercial parcels, namely part of
"a part of lot 22" and part of lot 21, Aud. Sub. 203 as shown
on Exhibit A attached hereto.
25. That McCleary's subject application for rezoning would
result in a record lot being 'subdivided for use purposes
without being subdivided for recording purposes.
26. That McCleary's subject application for rezoning would
result in a parcel of residentially zoned property which
would be 150 ft. long by 22 ft. wide in a triangular shape,
totalling 1,650 sq, ft. in area.
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Resolution No. 929
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27. That such a parcel of property does not meet the
performance standard regulations for residential property
in the LR-lA use district. The proposed parcel is only
1.9% of the required lot area and 11% of the required lot
width and the required front yard setback alone is 28 ft.
deeper than the total lot depth.
28. That therefore the proposed parcel is unbuildable
and unusable as'residential property, and if rezoned
residential, would become unusable as commercial property.
29. That the sole purpose of the proposed rezoning is an
attempt to revise the LMCD interpretation of the authorized
D.U.A. by revising the angle of the zoning district boundary.
30. That such a purpose is an attempt to circumvent the
intent of the LMCD regulations establishing Dock Use Areas
as reasonable extensions of riparian rights.
• 31. That any expansion of the McCleary Stubbs Bay Marina
Dock Use Area will reduce the D.U.A. and/or accessibility
to the D.U.A. of the adjoining residential properties.
32. That the existing dock structure is an.encroachment upon
the public waters of Stubbs Bay, Lake Minnetonka,,,which
prohibits the use of that area of the lake by fishermen,! -i
boaters or other members of the general public.
33. That the existence of any multiple or commercial boat
dock upon the public waters and the resulting boat movements
concentrated in a small area of the lake is detrimental
to the natural fish and wildlife habitats, increases the
turbidity of the water, stirs the sediment of the lake bed
and contributes to the pollution and eutrophication of the
lake,
34. That McCleary has even erected a sign on the property
that advises "No Trespassing, No Fishing, No Swimming",
which sign is intended to preclude public use of the public
waters.
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Resolution No, 929
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35. That any expansion of the McCleary Stubbs Bay Marina
Dock Use Area is an expansion of a non -conforming use of
riparian rights which would adversely affect the exercise
of the legally permitted reasonable residential riparian
rights of the adjacent properties.
36. That even if the rezoning were to be permitted, the
proper interpretation of the LMCD regulations would not
permit expansion of the McCleary Stubbs Bay Marina D.U.A.
beyond the existing D.U.A. ,
37. That the ultimate issue at stake is the extent of
private rights to subdivide and mark off areas of the
public waters for private commercial gain and for the
benefit of a very limited number of non -riparian boat owners.
38. That the immediate issue at stake is the number of boats
which are to be stored at commercial docks on and within the
public waters.
• 39. That there is no vested rights to store any given number
of boats in and on the public waters.
40, That Minnesota courts have established in Petraborg V.
Zontelli, 217 Minn. 536, 547, 15 N.W. 2d 174, 180 (1944)
that " as to a public lake, a mutual right of enjoyment is
shared by riparian owners and the public generally. Insofar
as such recreational benefits as'boating, hunting, and
fishing therein, the riparian proprietor has no exclusive
privileges".
41. That the regulations of the City of Orono, the LMCD and
the DNR are reasonable allowances for commercial activities.
and access to Lake Minnetonka.
42. That other alternatives exist to provide commercial access
to Lake Minnetonka including storage of boats on land.
43, That any dock construction and/or storage of boats in
and on the public waters infringes on the rights of the public
to use the public waters.
44. That due to an act of God, the on -land facilities of
• McCleary's Stubbs Bay Marina were destroyed by fire in January,
1976, and despite permits issued by the City, those facilities
have not been replaced to this day,
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45. That because construction has not proceeded the building
permit (#3696) issued on December 21, 1977 has expired according
to State Building Code regulations.
46, That the on -land premises of McCleary's Stubbs Bay Marina
are unsightly -and unmaintained.
47. That the entire site of McCleary's Stubbs Bay Marina
is within a flood plain sheet flow area of Lake Minnetonka
as determined by the Federal government.
48. That because no permanent on -land facilities exist, the
docks and boat storage existing on Stubbs Bay, Lake Minnetonka,
are the only vestage of commercial activity remaining of
McCleary's Stubbs Bay Marina.
49. That because the existing docks extend beyond the
authorized D.U.A. and must in any case be removed and
reconstructed and because boat storage on the public waters
is a nonconforming use in any use district, the entire
• McCleary's Stubbs Bay Marina can be declared to be non -existing
-and non-rebuildable.
50. That there is no public sewer available to service any
facilities at the Marina site and that any on-site septic system
may be a pollution hazard due to high ground water levels and
the flood hazard potential.
51. That there is limited access to the site by automobile
due to the curving and circuitous routing of local roads
far from major traffic corridors.
52, That there is limited access to the site by boat due to a
location at the far end of a relatively shallow, remote bay
of Lake Minnetonka;;over three miles by water from the main
body of Lake Minnetonka,
53. That without suitable on -land facilities including sanitary
facilities, the continued use of boat storage facilities on
the public waters appears to be an unreasonable use of riparian
rights which creates a public harm in return for no apparent
public gain.
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Resolution No. 929
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54. That for the above reasons, a further extension of the
authorized D.U.A. is entirely without merit.
55. That the Minnesota DNR regulations and policies favor
on -land boat storage against boat storage on the public
waters as being in the best public interest.
56. That there are many suitable commercial areas in the
Lake Minnetonka area where boat sales and boat storage can
be accomplished, where traffic conditions and neighborhood
development is more conducive to commercial activity, and
where the environmental conditions are not as delicate as
at this particular piece of lakeshore property.
57. That there has been no evidence supplied by McCleary
to show why he cannot comply with the City and LMCD
regulations regarding the existing D.U.A.
58. That the true interest of the City is in the protection
of the most general public welfare and in the prevention
of continuing public harm.
59. That McCleary's property rights and commercial rights
do not justify extension or continuation of private control
of the public waters.
60. That the Comprehensive Plan of the City of Orono does
not provide for nor allow for rezonings for this intended
purpose.
AND, BE IT FURTHERMORE RESOLVED, that based upon the above
findings of fact, the City Council of the City of Orono hereby deny
James K. McCleary's requested rezoning of certain parts of Lots 21
and 22, Aud. Sub. 203.
Adoptdd by the City Council of the
day of August 1978.
ATTEST:
Walter R.
son, Clerk/Administrator