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HomeMy WebLinkAboutResolution 938RESOLUTION NO. 938 RESOLUTION REFUSING TO GRANT INCREASED DENSITY TO ANY COMMERCIAL UNIT IN THE CITY OF ORONO ON LAKE MINNETONKA 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, 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: 1. 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 of the citizens of the City of Orono and -other members of the public within the City of Orono. 2. The primary harbor limit of the City of.Orono is 300 ft. lakeward from the ordinary high water mark of Lake Minnetonka. 4 " Resolution No. 938 Page2 -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 not 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 Minnesota 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.. 46 Resolution No. 938 Page 3 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 City of Orono must fulfill their trusteeship 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 single family residential owners. 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 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. 938 Page.4 15. It is a well known 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 greater 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 of the public. Specifically the marinas extension of docks and mooring areas beyond the 200 foot line obstructs navigation and use of the public waters. 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 water 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 and have transferred those rights to others who do not have riparian rights and who are not 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 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 subordinated 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. 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. Resolution No. 938 Rage 5 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 marians excessive use of the lake must be curtailed. 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 proven time after time 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 proliferation 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 number, 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 and public from those waters. Resolution No. 938 . Page 6 E E 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. 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 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 be a legal nonconforming 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. Resolution No. 938 • Page 7 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. 36. •None b f 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 1975.0perations Agreement and disregard for the legitimate concerns of their residential neighbors and the public at large. 37. Based upon the above findings of fact, including all of the many many.meetings of marina operators with the Planning Commission and City Council of the City of Orono and the Marina Licensing Committee, the.City Council of the City of Orono adopts the following policies: A. Further increases in the rental of slips and mooring spaces and extensions of docks into the lake and storage of boats for sale in commercial marinas will -create further harm to the environment of Lake Minnetonka including the quality of -water and the use and enjoyment of the lake for recreational purposes -by the general public and other riparian owners. Resolution No. 938 Page 8 B. Further increases in commercial marina operations will create further public nuisances for the residential neighbors of the marinas and the citizens of Orono in general. C. Further increases in commercial marina operations will be deleterious to the property values and the use and enjoyment of the property rights and riparian rights of the residential neighbors of the marinas and the citizens of Orono in general. D. Further increases'in commercial marina operations except those services such as boat service, launching, boat rentals and fishing supply sales designed to serve the broad general public are unjustifiable and unreasonable for the above reasons. E. Further increases in commercial marina operations are • unjustifiable given the lack of compliance with long- established performance standards requiring traffic and parking control, neighborhood buffers and protection of .. the public waters. F. Further increases in commercial marina operations are an unreasonable encroachment by marina operators into the public property.rights of other riparian owners along Lake'Minnetonka and will. be adverse to the health,' safety and welfare of the citizens of Orono and members of the public using Lake Minnetonka. G. For the -above reasons, all marinas must limit the lakeward extension of all docks and mooring areas to at least two hundred feet from the ordinary high water mark of bake Minnetonka. H. For all of -the above reasons, each commercial marina operator must show why that commercial marina should be allowed to have more than one dock which dock -should extend only to the point of navigability upon Lake Minnetonka. r_I LJ Resolution No. 938 Page9 Adopted -by the City Council of the City of Orono at a regular meeting held on 29 day of August , 1978. ATTEST: Walter R. Benson, Clerk/Administrato K�