HomeMy WebLinkAboutResolution 943RESOLUTION NO. 943•
A RESOLUTION DECLINING TO
RENEW BUILDING PERMIT NO. 3696
WHEREAS, the City of Orono, hereinafter City, is a municipal
corporation organized and existing under the laws of the State of
Minnesota; and
WHEREAS, the City Council of the City of Orono, hereinafter
the Council, has adopted a Comprehensive Guide Plan which sets forth
the unique characteristics and constraints affecting development within
the City and which Plan establishes goals and guiding principles for
planning and reviewing development within the City; and
WHEREAS, the City Council of the City of Orono has adopted
a Zoning Code which establishes performance standards and criteria
for implementation of the guiding principles of the Comprehensive
Guide Plan; and
WHEREAS, the State of Minnesota has enacted a uniform
State Building Code which establishes minimum design, construction
standards and criteria for building design,within the State; and
-WHEREAS, the City Council of the City of Orono has adopted
land does enforce the regulations and requirements of the State Building
Code on all construction projects within the City; and
WHEREAS, a building permit pursuant to the above was issued
tQ James K. McCleary,for construction of a structure on property
-located at 3445 Bayside Road, otherwise known as Stubbs Bay Marina; and
WHEREAS, said building permit ha:s expired and McCleary has
requested renewal of said permit,
NOW, THEREFORE, BE- IT RESOLVED, that the City Council of the
City of Orono hereby makes the following Findings of Fact:
1.. Since 19622 commercial marinas have been licensed
according to Ordinances of the City.
2. The marina operated on this property by Orville Keiran
was licensed 'for 18 slips in 1962 through 1968 and for
31 slips in 1969 through 1973.
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Resolution No.
Page 2
3. McCleary became the license applicant in May of 1973
and in August of 1973 he applied for 60 slips (a 93%
increase) and a permit to operate a restaurant on the
property.
4. McCleary's marina was licensed for 31 slips in 1973
and 1974, but an inventory in July, 1974 discovered 65
slips on the water (109% more boats than permitted).
5. The LMCD and subsequently the City licensed the
marina for 66 slips in 1975, 1976 and 1977.
6. McCleary made an application in 1975 (exact date
unknown) to operate a restaurant and tavern on the
property,.whichuse is not permitted by the zoning code.
7. During 1975 there were constant disputes over
unauthorized food service at the marina and complaints
regarding unsafe dock conditions.
• 8. McCleary's 1976 license application was for 66 slips
plus an additional 36 boats on land, an additional increase
of 55% over 1975, and a 229% increase in boat density since
his first involvement in 1973.
9. The LMCD and City licenses for 1976.rema.ined at 66
slips, but McCleary also stored additional boats on the
County highway right of way and/or residential outlot
west of the marina property.
10. A conditional use permit was continued in 1976 for
limited soup and sandwich sales at the marina as a
legal non -conforming use.
.11. Additional complaints are recorded regarding unsafe
dock conditions in 1976.
12. On November 4 , 1976, McCleary applied for a building
permit to erect a new structure of unspecified size
but to include a restaurant. McCleary's description
accompanying this request includes a note that 84 boats
are on the property, 27% more than then licensed.
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• Resolution No.
Page 3
13. On November 15, 1976, the Orono. Planning Commission
discussed this proposal in work session and were very
concerned about the scale of the proposed development.
14. On November 16, 1976, a few hours after the Planning
Commission meeting, a fire destroyed the existing marina
buildings.
15. The market value of the buildings at the time of the
fire was listed in the assessor's records as $2,000.00.
The fire damage exceeded that amount and therefore according
to the City's zoning ordinance and the State Building Code,
the building was considered totally destroyed.
16. The old building had not met the zoning code performance
standards regarding hardcover and setbacks.
17.* The prior restaurant and tavern use were nonconforming,
• uses according to the zoning code.
18. According to the zoning code -and the building code,
total loss of the building means that any reconstruction
must meet all current requirements.
19. On December 6, 1976, the Planning Commission recommended
denial of the McCleary application because it did not conform
to then current requirements and because the fire cancelled
any previous rights to continue the nonconforming use.
20. McCleary's 1977 marina license application was for
77 slips and 120 on -land boats (total 197), a 198% increase
over the 1976 boat density.level and a 535% increase over
the 1973 -level, despite the total loss of all marina
structures,.,
21. On January 24, 1977, the Council denied McClearyis
proposed building plans as a nonconforming use and as
not meeting the zoning code performance standards.
22. On February 17, 1977, McCleary made a new application
for a revised 80 X 200 building plan.
Resolution No.
Page 4
23. On February 22, 1977, McCleary revised the application
to a 40 X 80 building with inside storage for 108 boats
(66 slips + 108 boats = 174 units).
24. On March 17, 1977, the Council approved.the 40 X 80
building conditioned on: 1) no change in the shoreline;
2) removal of all other existing buildings; 3) no permanent
exterior boat storage; 4) no conditional uses, and 5) no
variances permitted, proposal to be within the existing code.
25. On March 28, 1977, a demolition permit was issued for
removal of all fire damaged biiildings.and other accessory
buildings on the site.
26. Dry weather during the summer of 1977 severely limited
boating access to the marina.
27. McCleary applied for dredging permits from the Minnesota
Department of Natural Resources on July 18, 1977, from the
Minnehaha Creek Watershed District on August 5, 1977, and
from the City on August 8, 1977.
28. McCleary's 1977 marina license was issued on August 8, 1977.
for 63 slips per his 1977 application, provided the docks
met all City and LMCD performance standards.
29. On November 14, 1977, McCleary made an application for
a building permit to construct a 180 ft. X 80 ft. building,
larger than that permitted by the Council.
30. On November 14, 1977, McCleary also applied for state
and city liquor licenses and a tavern license for the
property, contrary to the Council's approval of the
building "with no conditional uses".
31. On December 21, 1977, Building Permit No. 3696 was
issued by the City staff, pursuant to the Couhcil approval
on March 17, 1977, according to plans by Lester Buildings'
for a 40 X 80 building.
32. The proposed building was never located on a Certificate
• of Survey.
"• Resolution No.
Page 5
33. The building permit should not have been issued
when the tavern application was pending.
34. As of an inspection on March 6, 1978, no construction
activity had occurred.
35. Subsequent documentation in the city files shows
that footings for the building were designed by
Fischer Engineering on April 7, 1978 pursuant to
Braun Engineering recommendations dated March 14, 1978.
36. Said engineering should have been required prior
to permit issuance.
37. Pursuant to State Building Code, Section 302 (d),
building permit #3696 expired on -April 21, 19783, 120
days after issuance with no construction progress as
of that date.
• 38. During late 1977 or early 1978, McCleary moved
out of state (to Beaverton, Oregon).
39. The City staff was unaware of any intent to proceed
with the building project.
40. On April 26; 1978, McCleary applied for rezoning of
a portion of the marina property.
41. During review of this rezoning application, including
continued review of the previous dredging application,
the Planning Commission and Council discussed numerous
different applications by McCleary with him and with his
representatives, and on July 11, 1978, with McCleary's
attorney present, the Council directed the City staff
to prepare a resolution denying the rezoning and setting
strict limits*on the interpretations of allowed uses on
the property.
42. On August 8, 1978, a building permit STOP WORK ORDER
was posted on the site after,a backhoe operator had begun
digging footing trenches. The permit had expired, the
• trenches were partially filled with water, no construction
' plans were on site and the operator could not or would not
say who the contractor was. There was no evidence as to
what the actual intent was..
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Resolution No.
• Page 6
43. From the time of Council approval on March 17, 1977,
ten (10) months elapsed until the building permit was
requested, four (4) months elapsed until the permit expired
and an additional five (5) months elapsed until the date
of the above STOP WORK ORDER (total elapsed time 19 months).
44. Ample time existed during 1977 for McCleary to have
acquired the permit and to have proceeded with the then
approved work and/or to have adequately maintained the
property.
45. All during 1977 and 1978, McCleary had continued to
rent boat slips on the public waters when no operating
marina was on the site; sanitary facilities when present
at all consisted of one chemical toilet, the site was
overgrown with weeds and debris, the docks were unsafe
and partially underwater, and the docks were in a
configuration not approved by the applicable marina
licenses.
46. Since the March 1977 Council approval, additional
information and requirements have affected this proposal.
47. The dredging, rezoning and -tavern applications by
McCleary have raised -questions regarding development
intent.
48. A federal flood insurance study by the Department of
Housing and Urban Development; finalized 6n February 17, 1978,
indicates that the entire marina property is within a sheet
flow flood plain.
49. The marina property is not served by sanitary sewer
and the City has no record of the existing on-site septic
system location, design or operating characteristics.
50. Orono Ordinance 210, adopted on April 13, 1978, provides
for certain septic systems site evaluation, design and
performance standards, consistent with Minnesota Pollution
Control Agency requirements, which standards must be proven
prior to issuance of any building permit but which information
has not been submitted -for the marina property.
Resolution No.
Page 7
51. On August 9, 1978, McCleary applied for renewal of the
expired building permit No. 3696. Subsequently new building
plans by Mitchel Engineering, dated March 21, 1978, were
submitted for staff review.
52. Representation is unclear since McCleary has moved out
of state and as two different attorneys and a realtor have
come forward saying they represent McCleary in the marina
matters.
53. The operation and lease of the dockage appears to be
in the hands of an unidentified boat dealer.
54. A search of the public record indicates that the
marina property is still owned by Keiran in 1978
with no mention of McCleary's name. 4
• 55. The marina property is the only property within several
miles which is used for commercial purposes. All surrounding
property is residential.
56. Boat storage on the public waters, the -only current
activity on this property, is not a permitted nor a
conditional use in any zoning district in the City.
57. The 1978 Marina license has not yet been issued, with
the issuance having been delayed pending review of the
recent•rezoning application.
58. The findings contained herein are consistent with
and continuations of the findings contained within
Resolution No. 929 attached hereto, said resolution denying
the rezoning application.
59. The findings contained herein are consistent with the
findings contained within Resolution No. 938, a resolution
refusing to grant increased density to any commercial unit
in 'the City of Orono on Lake Minnetonka.
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Resolution No.
• Page 8
AND, FURTHERMORE, BE IT RESOLVED, that based upon the'
above Findings of Fact, the City Council of the City of Orono
hereby declines to renew.Building Permit No. 3696 and instead makes
the following conclusions:
1. There is no valid permit outstanding for construction
of any improvement on this property.
2. The prior marina structure and non -conforming use
were permanently destroyed by fire on November 16, 1976,
thereby prohibiting reconstruction of any non -conforming
building or use.
3. The existing rental -of boat storage slips on the
public waters, particularly without accompanying marina
services, is an illegal non -conforming use of land.
4. The rapid expansion of boat storage density since
McCleary's involvement in the marina is not in keeping
. with the residential character of the area around Stubbs
Bay and is detrimental to the water quality and use of
Stubbs Bay by the public.
5. The numerous applications by McCleary for various
uses, expansions, rezoning, etc. over the past five (5)
years leaves'a cloud over the true intentions concerning
development -of the marina.
6.-McCleary's move out of state and his -lack of recorded
property interest, leaves a cloud over the true ownership
and control of the property.
7. There is probable conflict between septic system
requirements and the flood plain designation which has
not been addressed by McCleary. .
8. Even since the March, 1977 building permit approval '
by the Council, McCleary has made applications for uses
denied by that approval..
9. There is no justification for renewal of the building
• permit until all legal, factual and usage questions have
been answered.
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Resolution No.
• Page 9
10. Development of the marina in the residential area
is contrary to the Comprehensive Guide Plan. '
11. Development of the marina would result- in diminution
of the value of the residential properties on Stubbs Bay
and in the immediate area of the property.
12. Prior to issuance of any permits or licenses for the
Stubbs Bay Marina property, the owner or owners thereof
must make a full and complete disclosure of all current
plans for operation, use, construction, sale, lease or
development of the property.
Adopted by the City Council of the City of Orono at a regular eeting
held on 26 day of Septemher , 1 ca7A
•
Will B. Van Nest, Mayor
ATTEST:
Walter R. -Benson, Clerk/A nist ator