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HomeMy WebLinkAboutResolution 9710 RESOLUTION NO. 971 A RESOLUTION DIRECTING STAFF TO ISSUE A COMMERCIAL DOCK LICENSE TO STUBBS BAY MARINA SUBJECT TO CONDITIONS NOTED HEREIN FOR THE PERIOD OF JANUARY 1, 1978 TO DECEMBER 31, 1978 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, within the City there exist several commercial marinas, hereinafter "marinas" engaged in business.activities including but not limited to the following: 1. The sale of new and/or used boats, boating equipment, boat accessories and recreation equipment. 2. The storage, sale, rental,.lease, repairing and/or servicing of boats and boat equipment. 3. The sale of gasoline, bait and fishing supplies. 4. The construction and maintenance of docks, boat lifts and buoys on the public waters for purposes of operating the above noted business activities and for rental or lease of such space to a limited number of the general public for storage of individually owned boats. AND WHEREAS, the City Council has determined that if unregulated, such commercial activity on or near the public waters and on the land within the City may be detrimental to the public health, safety and general welfare and is therefore subject to reasonable regulations by the City; and WHEREAS, it is the overriding concern of the City to 0 eliminate the unique problems presented by. -increasing boat density, hardcover, traffic density, storm water runoff and noise.or other public nuisances in the area of,the various marinas; and • Resolution No. 971 Page 2 WHEREAS, 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; 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 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; and WHEREAS, 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 inter- ference by anyone, including those who assert the commonlaw rights of riparian owners, whether or not they be commercial marinas or single family 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. 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; and Resolution No. 971 • Page 3 WHEREAS, 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; and WHEREAS, 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 ; , and WHEREAS, 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 tie unreasonably interferes with the surface water rights of all riparians and members of the public generally; and WHEREAS, 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 rights; and WHEREAS, the most general public use of water is paramount and should take priority over excessive riparian use for commercial purposes of the lake by the marinas; and WHEREAS, 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; and 0 Resolution No.,971 Page 4 WHEREAS, 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; and WHEREAS, 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; and WHEREAS, all of the requirements of Chapter 73 of the Orono Municipal,Code regulating commercial marina operations, Section 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; 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 Commercial 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 Commercial Dock License according to the facts and conditions noted on Exhibit A attached. Adopted by the City the 18 a • ATS ST: Walter R: } Council of the City of Orono at their meeting on day of December 19 7 William B. Van est, Mayor enson, Clerk/Administrator CITY OF ORONO EXHIBIT A RESOLUTION NO. 971 CONDITIONS OF ISSUANCE FOR COMMERCIAL DOCK LICENSE I. LICENSEE Stubbs Bay Marina Address 3445 Bayside Road Year 1978 Period - January 1, 1978 to December 31, 1978 II. BOAT DENSITY The number of in place boat. slips, lifts and buoys shall not exceed the number shown on the attached plan, Exhibit B, and in accordance with Resolution 938, in no case shall the number of authorized boat slips, lifts, buoys, or dry stack slips exceed the number permitted in the prior year's license. ` Authorized Summer Density per attached plan: Transient Slips Rental Slips Company Slips Sub -Total: Slips at Docks Offshore Buoys Maximum Boats in water Stubbs Bay 0 66 0 66 0 66 Dry stacked slip for use in lake Maximum Boats in water per prior license Other Boats (for sale/service, etc.) MAXIMUM BOAT DENSITY on•land and/or in water 66 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 73.010 of the Orono Municipal Code. Authorized Number of Winter.Stored Boats 66 EXHIBIT A •Resolution No. 971 Page 2 • III. DOCK LAYOUT (reference Exhibit B attached) Maximum authorized length of main dock 200 feet. Docks extending beyond 200 ft. and docks encroaching into required side yard setbacks are hereby specifically declared to be illegal non -conforming structures which are not permitted under this license. This application (does) Xy&) contain such illegal structures. All such violations are subject to prosecution under Sections 35.100 and 73.010 of the Orono Municipal Code. IV. Marina OM) (is not) authorized for FUEL SALES subject to compliance with the State Fire Code. V. Required number of OFF-STREET PARKING SPACES 35 • All such spaces must be maintained available on the property during all summer season hours of operation. VI. 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. This license is conditionally granted after -the -fact in recognition that the docks on this property were rented or leased during the summer of 1978 without specific approval by the City. There were no on-site marina functions and no on-site personnel. 2. The findings of Resolution 929 denying a rezoning on this property and Resolution 943 denying a building permit renewal on this property shall also be findings applicable to this license. EXHIBIT A Resolution No. 971 Page 3 VI. SPECIAL CONDITIONS (Cont.) 3. The dock layout in place in 1978 did not conform to any of the plans submitted with the 1978 application. The docks in place extend beyond the City and LMCD authorized dock use area. The docks in place are structurally unsound and now pose a threat to public safety. UNDER NO CIRCUMSTANCES MAY THE EXISTING DOCK STRUCTURES BE USED IN 1979. 4: Issuance of this license does not vest any right in the licensee to continued licensing of 66 slips. The burden of proof shall be on the licensee to show that he can place all slips within the authorized dock use area. The resulting number of such slips may be less than 66. VII. Nothing in this license shall confer upon any'p•erson 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.