HomeMy WebLinkAbout10/15/1991 MEMO TO: Honorable Mayor and City Council
FROM: Dennis R. Kraft, City Administrator
RE: Non-Agenda Informational Items
DATE: October 11, 1991
1 . Attached is memorandum from the City Attorney regarding NBZ
Brief.
2 . Attached are the September 18, 1991 minutes of the Scott
County Economic Development Coalition.
3 . Attached is the Police Newsletter for Council review.
4 . Attached are the unapproved minutes of the September 18, 1991
Community Development Commission meeting.
5. Attached are the September 9th, 16th and 30th, 1991 minutes of
the Shakopee Public Utilities Commission meetings.
6. Attached is correspondence from the Minnesota Department of
Health regarding the results of water samples collected on
June 5, 1991 from city wells.
7 . Attached is the Building Activity Report for September.
8 . Attached is a memorandum from the Finance Director regarding
Riva Ridge Industrial Revenue Bonds.
9 . Attached is the Program Costs by Department Report as of
October 8 , 1991 .
10 . Attached is the Revenue and Expenditure Reports as of
September 30, 1991 .
11 . Attached are the recommendations for 1992 Legislative Policy
from the committees of the AMM and Board of Directors. Please
review.
1
MEMORANDUM
TO: Mayor and Members of the City Council
FROM: Karen Marty, City Attorney
DATE: October 9 , 1991
RE: NBZ Brief
Per your request, I am sending you copies of the NBZ brief
and the City' s brief. These have been sent to the trial judge to
assist him in reaching his decision.
You will notice a significant difference in the way NBZ and
I approach a brief. NBZ seems to think the best defense is a
strong offense, and has adopted what I privately call the
"foaming at the mouth" approach. Much of their brief is devoted
to criticizing and belittling the City. My approach is aimed at
providing the calm voice in the wilderness, and to reflect the
professional attitude of the City. I deal with the issues, the
law, and the facts. After all, this is a matter in court, and
not a shouting match between children. I believe our position is
legally correct, and I believe that our professional, legalistic
approach is more persuasive than an emotional approach.
This letter is protected by the attorney-client privilege,
and should not be distributed to the public. The briefs,
however, are public documents, and you should feel free to deal
with them as you like.
If you have any questions, please let me know.
Signed = Y (7%/e/
Karen Marty, City Attorney
KEM:bjm
[NBZMEMO]
Attachments
cc: Dennis Kraft
10 - OTHER CIVIL
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF SCOTT FIRST JUDICIAL DISTRICT
NBZ Enterprises, Inc., the successor in
interest of Scott County Lumber Company
and Bert Noterman; Moon Valley
Aggregate, Inc., a/k/a G & T Trucking,
Inc.,
Plaintiffs, PLAINTIFFS' POST-TRIAL BRIEF
vs.
Court File No. 91-09739
City of Shakopee,
Defendant.
INTRODUCTION
On April 5, 1988 under court order, the Shakopee City Council issued Conditional
Use Permit No. 376 ("CUP") on the property owned by NBZ Enterprises, Inc. ("NBZ"), the
successor in interest of Scott County Lumber and Bert Noterman. (Plaintiffs' Exhibit 1).
The property is located on the west side of Scott County Road 83 and 1-1/4 mile south of
its intersection with Scott County State Aid Highway 16 ("Property"). The City of Shakopee
("City") admits that, consistent with this Court's finding, "processing" is a permitted use on
the Property. [Testimony of City Administrator,Dennis R.Kraft("no doubt"that processing
is permitted on the Property); Testimony of City Planner, Lindbergh S. Ekola ("no dispute
that some processing allowed")]. Therefore, as previously determined by this Court,the sale
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issue in this proceeding is 'whether or not a ready-mix plant is in fact a processor of
materials." (Order and Memorandums dated August 21, 1991).
In their Trial Brief plaintiffs extensively addressed the issues in this case and analyzed
the applicable law. All of that argument will not be repeated here. Instead the Court is
referred to the Trial Brief as an introduction to the discussion in this Brief.
STATEMENT OF FACTS
A. Plaintiffs' Ready-Mix Operation Constitutes "Processing".
Plaintiffs presented the uncontroverted testimony of three experts of unparalleled
distinction and experience in the ready-mix, aggregate processing industry. Each testified
that a ready-mix operation was in his opinion a processor of aggregate.
Joseph L. Shiely III has spent his lifetime in the aggregate business. Shiely was an
owner and chief officer of the prominent Twin Cities metropolitan aggregate and concrete
operation, the J. L. Shiely Company. Shiely was the third generation of his family to own
and manage the gravel and ready-mix business.
Shiely testified regarding a sand and gravel extraction and processing operations. He
explained that ready-mix is "part of the same processing." Shiely described the ready-mix
operation as a"continuum" from the sand and gravel extraction process. Additionally, Shiely
opined that the greatest intensity of use in this continuum is the mining and crushing of the
rock; these steps in the process impart the "preponderance of effect on [the] minerals."
Shiely reinforced his point by noting the significantly greater time allocated to the mining
and crushing operation compared with the time allocated to the ready-mix operation.
Moreover, the mining of gravel forever changes the land surface. Shiely further
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distinguished manufacturing of concrete products, i.e. cinder block, from ready-mix as "not
as closely affiliated" with washed aggregate. Finally, Shiely established that there were no
adverse environmental impacts associated with ready-mix processing in the gravel mine. In
fact, such a processing operation would have a beneficial effect on traffic by reducing its
volume.
Mathias Fischer owns and operates the Twin Cities' second largest ready-mix
operation. Fischer has 46 years of experience in the aggregate mining and processing
business. At trial, Fischer repeated his expert testimony previously given at the City Council
hearing of August 20th. In Fischer's unrefuted expert opinion, a ready-mix operation is
processing. Fischer emphasized that a ready-mix operation has been defined and regarded
as processing within the sand and gravel context "since I can remember."
Fischer reiterated that the ready-mix operation is significantly less time and -
equipment intensive than the preparation of the aggregate in the extraction process (mining,
screening, crushing and washing). Fischer also confirms that there was no adverse
environmental impact from a ready-mix plant. Fischer's testimony included a video tape of
a typical ready-mix plant. This tape demonstrated the minimal impact of the operation and
its lesser intensity to gravel processing operation up stream of the ready-mix plant.
Garwin McNeilus, a competitor of Fischer's in the ready-mix business, gave further
expert testimony. McNeilus is a large aggregate and ready-mix producer in Southern
Minnesota. Beside his vast experience in processing sand and gravel and making them into
concrete, McNeilus designs and manufactures ready-mix equipment. With a life time in the
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sand and gravel and ready-mix business, and as the world's largest manufacturer of ready-mix
processing equipment, it is difficult to imagine a more qualified expert witness.
McNeilus opined that ready-mix operations are defined by the industry as
"processing." McNellus' opinion must be afforded considerable weight because of his
experience and position in the industry. There are few people in the world who know as
much about making ready-mix concrete as Garwin McNeilus. McNeilus absolutely refuted
• the City Administrator's characterization of the ready-mix operation as involving greater
intensity than the sand gravel extraction operation already occurring on the property.
McNeilus explained that sand and gravel extraction requires end loaders,conveyors, crushing
and washing, all of which cost ten times more than is involved in a ready-mix operation.
Furthermore, these operations take more time and have a greater impact on the materials,
and the surrounding environment than the mere addition of cement and water and the
mixing with aggregate in order to make concrete.
The City presented no contrary definition of "processing" from a qualified expert.
Instead, the City relied on the incompetent, unqualified and confused testimony of two City
officials: City Administrator, Dennis R. Kraft, and City Planner, Lindbergh S. Ekola.
Neither Kraft nor Ekola has any expertise in the aggregate or ready-mix concrete processing
business. Nonetheless, they gave "opinions" about an operation about which they had little
knowledge and no understanding. Between the two they have been in less than ten sand and
gravel operations and neither professed to have more than a rudimentary appreciation of -
the equipment involved in sand and gravel extraction and ready-mix processing.
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In addition to their incompetence, Kraft and Ekola were inconsistent and confused.
Ekola was unable to determine whether there were three permits on the Property or two
permits. In his initial direct testimony Ekola emphatically stated that there were three
permits — a CUP, a Mineral Extraction and Land Rehabilitation Permit and a Mining
Permit After being worked on over the noon hour break by the City Attorney, Ekola had
a revelation that there were only two permits. How can the testimony and opinions of a
regulator be taken seriously when either he can't count to three, or he can't figure out
without woodshedding from the city attorney how many permits he is charged with enforcing.
In addition, Ekola admitted that he has no previous experience regarding the permitting and
regulation of this type of land use. Ekola is an unexperienced young planner fresh out of
school in North Dakota before coming to his position in Shakopee. For a short time, Ekola
held a low level position in the Phoenix planning department. While in Phoenix, Ekola had
no involvement in regulating gravel processing. By his testimony in this case, Ekola
demonstrated that he still has a lot to learn.
Besides its incompetence, the City's case was undermined by its contradiction of itself.
For example, Kraft and Ekola gave opposing views about whether crushing and washing had
been approved on the Property, and they offered contrary definitions of "processing".
Nevertheless, both City officials testified that, from their respective capacities, a ready-mix
operator does not constitute processing. The basis of their testimony appeared to be three-
fold.
First, both City officials erroneously testified that ready-mix is inconsistent with the
Property's agricultural zone simply because ready-mix operations are a conditionally
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permitted use in the City's heavy industrial (I-2) zone. From this Ordinance provision,
§ 11.33, Subd. 3, the City argues that the ready-mix process operation can not be otherwise
permitted in the agricultural (A-1) zone. Ready-mix is not a separately and specifically
mentioned use in the A-1 Zone, but it is so mentioned in the I-2 Zone. Therefore, the City
concludes without rationale or logic that ready-mix can not be allowed in the A-1 Zone. i -'
[Compare Shakopee Zoning Ordinance ("S.Z.O.") § 11.33, Subd. 3 (G) with S.Z.O. § 11.24;
Plaintiffs' Trial Exhibit 4]. Kraft, however, acknowledged that nothing in the Shakopee
Zoning Ordinance specifically prohibits ready-mix operations in an agricultural zone. And, -
the Shakopee Zoning Ordinance no where states that the provision for a CUP in one zone
• bars such use in all other more restricted zones. (Testimony of Kraft). ,'%✓`
Moreover, consistent application of the City's argument to plaintiffs' Property would
bar the plaintiffs' rock crushing operation. "Rock crushing or gravel work" is a conditionally
permitted use in the I-2 Zone. (S.Z.O. § 11.33, Subd. 3(F)). Nevertheless, the crushing
operation has existed on the Property since 1989. Crushing has never been objected to by
the City, and the continuation of crushing was specifically approved by the City this Spring.
Like "ready-mix plants," rock crushing is not specifically permitted in the agricultural zone.
Both City officials testified that rock crushing constitutes "processing" and the agricultural
zone conditionally permits only"mining." (S.Z.O. § 11.24, Subd. 3(H)). Mining is specifically
defined as sand and gravel extraction "without processing." (S.Z.O. § 11.02(82)). The
conditionally permitted use is "Mining." Therefore, the rock crushing land use, which is not
claimed to violate plaintiffs' permits, must be authorized by plaintiffs' second permit, the
Mineral Extraction and Land Rehabilitation Permit. That permit allows processing,
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including crushing. There is no reason to conclude that the Gravel Extraction permit does
not allow ready-mix processing. Like rock crushing, ready mixing is processing. Ancl like
crushing, ready mixing is a conditionally permitted use in the I-2 Zone. Therefore, ioke
crushing, it is permitted processing pursuant to plaintiffs' Mineral Extraction and Land
Rehabilitation Permit.
Second, the City officials rely on their admittedly "quite limited" background in the
field to define "processing" as "aggregate extraction," thus excluding ready-mix operations.
This narrow interpretation of "processing" is internally inconsistent. It relies upon the
Shakopee Zoning Ordinance definition of "mining" which has been specifically defined as
extraction "without processing." (S.Z.O. §11.02(82). But processing is repeatedly provided
for and anticipated in the Mineral Extraction and Land Rehabilitation Permit and the
applicable Ordinance provisions. (See S.Z.O. § 11.05, Subd. 7(C)(6) and (C)(8).'
The City's narrow interpretation of"processing" is not consistent with the course of
dealing between the parties to the CUP. The plaintiffs have conducted and the City has
approved other "processing" operations on the Property, i.e. crushing and washing. Since
the actions of both parties demonstrate that processing is permitted, there must be a rational
basis related to the public health, safety and welfare to distinguish between crushing and ' ,
ready-mix operations. No such distinction exists. Therefore, both processing operations ` i"`-'.
must be allowed.
1 The City's admitted practice of not drafting a separate document when issuing a
Mineral Extraction and Land Rehabilitation Permit (see Plaintiffs' Trial Exhibit 2) has
effectively deemed the City's Mineral Extraction and Land Rehabilitation Ordinance as the '
Permit on the Property.
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Ekola attempted to bridge the inconsistency by testifying that crushing and washing
were never permitted on the Property and that he was unaware of the existence of these
operations. Ekola adopted this position despite admitting that he drafted the map for
plaintiffs' CUP amendment application. This map included the"WASH PLANT."(Plaintiffs'
Trial Exhibit 26). Ekola also acknowledged that the application for the 1991 Mineral
Extraction and Land Rehabilitation Permit specifically describes"crushing"and "washing" as
requested uses on the Property. (Plaintiffs'Trial Exhibit 8). Plaintiffs have openly operated
the crusher since 1989 and the wash plant since 1990. (Testimony of Bert Noterman and
Tom Zwiers). At no time has the City objected to those operations and Kraft's testimony
on this point contradicted Ekola's. When called by plaintiffs in their case in chief Kraft
stated that the crushing and washing operation were permitted processing.
Moreover, the proceedings that lead up to the CUP revocation never cited any
violations related to the plaintiffs washing and crushing. Certainly, the City would have
claimed that these activities violated the CUP in support of its claim that substantial and
repeated permit violation occurred. Since the-City did not rely upon those grounds in
revoking the permit, such processing is authorized by the applicable permits.
Kraft also unsuccessfully attempted to address the inconsistency of his narrow
interpretation of "processing." While Kraft conceded that the City approved the operation
of the crusher and wash plant on the Property, he argued that the intensity of the ready-mix
operation distinguishes the ready-mix operation as manufacturing; rather than processing.
Kraft could not articulate what caused ready-mix operations to be a more intensive land use
on the Property than the existing mining, crushing, screening and washing processes. Kraft's
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inability to explain why ready-mix processing was more intense probably stemmed from his
ignorance about the fundamental operations and the equipment involved. Its easy to say
one process is more"intense" than another process if you don't have a clue what your talking
about. Kraft's uninformed and unknowledgeable testimony about process intensity is belied
by the parade of eminently qualified experts offered by plaintiffs. Those experts know the
business, the equipment and the operation. Their testimony established that ready-mix
processing is not more intense than mining and crushing.
The single factor that Kraft noted to distinguish ready-mix processing was the
inclusion of cement in the operation. Yet, cement is a natural material that is made from :-f-
ground limestone. Furthermore, cement constitutes less than 10 to 12% (by weight) of .: 1' •
-
ready-mix concrete. (See Testimony of Shiely). Finally, each of the experts on processing
identified the most intensive steps in the processing operation to be the mining and crushing.
(See Testimonies of Shiely, Fischer and McNeilus). The addition of cement to the process,
in the experts' opinions, did nothing to make the operation more intense or create an
adverse environmental impact. In fact,Shiely testified that mining and crushing represented
the "preponderance of the effect on [the] minerals." This conclusion is supported by the
relative time allocated between the mining, screening, crushing and washing processes
compared with the time required for the ready-mix operations.
As the third basis for concluding that the ready-mix operation does not constituting
"processing," the City officials contend that the definition of processing is controlled by the
Merila Plan submitted in the original CUP application on the Property on April 30, 1985.
(Defendant's Trial Exhibit 2). The Merila Plan, however, does not form the basis of the
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Mineral Extraction and Land Rehabilitation Permit. More importantly, using the Merila
Plan to limit the plaintiffs'use of the Property would unjustly reward the City for its arbitrary
and legally insufficient denial of plaintiffs' CUP application in 1985.
The Merila Plan is referred to in CUP Condition No. 17. Condition 17 states that
plaintiffs' plan for operation report shall be adopted as the "Mining Permit." While the
Mining Permit, as a condition precedent to the CUP, was necessarily issued prior to or
contemporaneous with the issuance of the court ordered CUP, no reapplication or renewal
of this permit has ever been sought. In contrast, CUP Condition No. 2 requires the issuance
of the Mineral Extraction and Land Rehabilitation Permit. That permit was reapplied for
and reissued this Spring. (See Plaintiffs' Trial Exhibits 8 and 14). The Mineral Extraction
and Land Rehabilitation Permit, issued pursuant to Condition No. 2, rather than the Mining
Permit issued pursuant to Condition No. 17, controls the processing which is permitted on
-
the Property. The Mineral Extraction and Land Rehabilitation Permit was issued pursuant
to §11.05, Subd. 7 of the Zoning Ordinance. That provision of the Shakopee Zoning
Ordinances permits and regulates aggregate processing. (See S.Z.O. §11.04, Subd. 7(C)(5)
and (6)). "Mining" on the other hand, as defined by the Shakopee Zoning Ordinance does
not include processing. (See S.Z.O. §11.02(82)).
Hence, the "Mining Permit" must govern and involve something other than plaintiffs
processing operations. The processing operations are subject to the Mineral Extraction and
Land Rehabilitation Permit. Nothing in that permit or in §11.05, Subd. 7 of the Zoning
Ordinance prohibits ready-mix processing. Plaintiffs, therefore, must be allowed to exercise
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all rights and engage in all land uses that are authorized by the three permits that the Court
of Appeals ordered to be issued for plaintiffs' land.
In any event, the Merila Plan cannot be construed as barring plaintiffs' ready-mix
operation. Kraft relies on the single line from the Merila Plan's cover letter: "[t]here is no
intent to mix asphalt or concrete." (Emphasis added). That 1985 intent, however, does not
bar a ready-mix operation on the Property in 1991. This Court cannot accept such a
vacuous reading of this document. The Merila report was prepared at the request of C. S.
McCrossan Construction Company. When Merila wrote the report, McCrossan was the
general contractor for the construction at Canterbury Downs. (Plaintiffs' Trial Exhibit 21;
testimony of Noterman). McCrossan made the application for the permits because it needed
gravel for Canterbury Downs. At the time of the application, the owners of the Property
anticipated McCrossan setting up ready-mix and asphalt plants at the Canterbury Downs site.
`
That construction site was located less than 1-1/4 miles away. (Id.). Due to the proximity
of these processing operations and McCrossan's demand for aggregate at the race track,
McCrossan did not then intend to site a ready-mix plant in the gravel pit. In 1985, the
Canterbury Downs project provided a site for the ready-mix processing operation, and it
created a unique and short-term demand for the gravel. The Canterbury processing site and
gravel demand is gone, but there is not doubt that the Merila report referred to and
anticipated a processing operation on the Property.
The window of opportunity to sell sand and gravel to and process it at Canterbury
Downs was available to plaintiffs but for the City Council's "arbitrary and capricious" denial
of its CUP. Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 729 (Minn. Ct.
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App. 1988). When the City illegally denied plaintiffs' CUP application in 1985, the
construction of Canterbury Downs proceeded without plaintiffs'gravel. McCrossan finished
its work in Shakopee, and there is now neither a demand for gravel at Canterbury nor the
opportunity to site a ready-mix plant there. Unfortunately, however, the record of the case
became fixed after the City's illegal actions and as the litigation proceeded. When the Court
of Appeals finally ordered the City to issue the permits in 1988, time and circumstances had
changed in Shakopee. When they finally got their permits, plaintiffs could no longer take
advantage of the demand that the Canterbury Downs project created for their aggregate.
Along with the lost opportunity to sell gravel to Canterbury Downs went the rationale for
the 1985 "intent" not to mix concrete at the site. Consequently, it would be unjust to now
reward the City for its arbitrary denial of the CUP by fixing in time a restriction tied to an
opportunity the City unlawfully foreclosed. Since the Court can not recreate the
construction at Canterbury Downs, it should not impose an "intent"that was only applicable
and relevant to a situation and an opportunity that the City illegally denied plaintiffs from
pursing.
Moreover, literal construction of the Merila Plan would also contradict the City's
interpretation of the permitted uses on the Property as established by the course of dealing
between the parties since 1988. The City has knowingly permitted and expressly approved
washing on the Property despite the exclusion of that activity under a literal interpretation
of the Menla Plan. (Testimony of Ekola; see Defendant's Trial Exhibit 2; Plaintiff's Trial
Exhibits 8 and 14). As time changed, the permitted uses on the property have changed and
grown within the ultimate land use permitted by the various permits. A ready-mix operation,
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like crushing and washing, involves the expanded processing uses customary to sand and
gravel extraction. Just as crushing and washing are allowed processing pursuant to the
permits, so is a ready-mix plant.
Finally, since the Mineral Extraction and Land Rehabilitation Permit was reapplied
for and reissued in May of 1991, the Merila Plan is no longer relevant or applicable. As
noted above and established by the clear language of the CUP, the Merila Plan related to
the Mining Permit, not the Mineral Extraction and Land Rehabilitation Permit. Pursuant
to the CUP Condition No. 1 and the applicable Ordinances (S.Z.O. §11.05, Subd. 7(A)), the
CUP and the Mineral Extraction and Land Rehabilitation Permit must be reapplied for
every three years. The Mining Permit has never been reapplied for nor has the City t
•
required any action on that permit. The other permits, however, were reissued in 1991. But '` ;,,, _
neither the 1991 application for a renewed CUP nor the application for a new Mineral
Extraction and Land Rehabilitation Permit(see Plaintiffs'Trial Exhibits 8 and 9) relied upon
or referred to the Merila report.
In fact, the Mineral Extraction Permit application specifically describes the operation
as follows: "Mining, crushing, washing and processing aggregates." (See Plaintiffs' Trial
Exhibit 8). The City issued the Mineral Extraction and Land Rehabilitation Permit based
upon plaintiffs' 1991 application and without reference to the Merila Report. (See Plaintiffs'
Trial Exhibits 14,May 9. 1991,Planning Commission Minutes at 4). Therefore, since at least
the Spring of 1991, the "intent" and restrictions of the Merila Report are no longer relevant
and they no longer apply to plaintiffs' permitted land uses. Even if Condition 17 and the
Merila report precluded the mixing of concrete, with their 1991 applications to the City,
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plaintiffs abandoned that intent and revised their described uses to meet the conditions of
1991. Since the Spring of 1991, plaintiffs intended to process aggregate into ready-mix
concrete, and the Mineral Extraction Permit issued in May 1991 permits such processing.
B. Plaintiffs' Ready-mix Processing Plant is a Permitted Accessory Use.
To further emphasize the permitted status of plaintiffs' ready-mix operation on the
Property,plaintiffs presented the testimony of experts who established that a ready-mix plant
is a permitted accessory use to a sand and gravel extraction operation. These experts also
demonstrated that there was no additional adverse environmental impact from a ready-mix
operation. Thus, such processing use was not inconsistent with a sand and gravel extraction
operation on agriculturally zoned property.
R. K. Hoagberg, an environmental geologist previously recognized by the Minnesota
Court of Appeals as "an expert in Minnesota's gravel needs and resources," Scott County
Lumber, 417 N.W.2d at 727, presented data evidencing the number of ready-mix operations
at or near aggregate extraction sites. (Plaintiffs'Trial Exhibit 23). Hoagberg's data showed
that over 55% of ready-mix plants in the metropolitan area are in presently active or once
active sand and gravel extraction pits. The data further evidenced that over 65% of hot mix
plants in the metropolitan area are sited in presently active or once active pits. Finally,
Hoagberg established that the significant majority of the gravel operations in the
metropolitan area have either a ready-mix or hot mix processing operation in them.
Therefore, a ready-mix operation is without question customarily incidental to a gravel
extraction operation. Hoagberg also testified that there was"no environmental impact"from
a ready-mix operation. Hoagberg dismissed as "inconsequential" any adverse impact from
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the one-half to three-quarter of 1% organic mixtures in ready-mix. These natural materials
are easily stored and controlled. And, a spill presents no threat of environmental damage.
The City offers no evidence to the contrary.
Shiely testified that it is "customary" and "part of normal operation" for ready-mix to
be sited in a gravel pit. Shiely explained that the washed aggregate "must be incorporated
to be useful" and that virtually all washed aggregate is used for malting ready-mix concrete.
Shiely also demonstrated that there was no additional adverse noise impact from a ready-mix
operation. Indeed a ready-mix plant is quieter than the mining, crushing, screening and
washing operations that are already located on the Property. Shiely added that traffic would
be at least doubled if the ready-mix operation was a separate site, necessitating two trips for
every one currently required.
McNeilus testified to the frequency of siting ready-mix operations in sand and gravel
pits. McNeilus noted that the only pits without a ready-mix operation are where the
aggregate is not of sufficient quality. According to McNeilus, ready-mix operations are an
"integrated part of the total product," with the primary use of washed aggregate being for
ready-mix concrete. McNeilus also concluded that no additional adverse environmental
impact would arise from a ready-mix operation. McNeilus illustrated his point by citing his
ready-mix operations in Rochester next to the Mayo Clinic and near a "pricey" residential
area. Based upon his experience, McNeilus stated that traffic would decrease two to three
times if ready-mix is allowed on the site. Finally, McNeilus described plaintiffs' portable
ready-mix operation as a "low-profile plant."
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Fischer also testified that "virtually all" aggregate sites have either a ready-mix or a
hot mix operation. Those pits that do not have a further processing operation are, according
to Fischer, due to poor site locations. When asked whether he foresaw any additional
adverse environmental impact from a ready-mix operation, Fischer stated succinctly, "none
whatsoever." The absence of any noise or dust problem was evident in the video of AVR's
significantly (ten times) larger ready-mix operation in Burnsville. (Plaintiffs' Trial Exhibit
20). Fischer further explained that two to three times more traffic would be created if the
ready-mix operation is not permitted to operate on the Property. Fischer further noted that
of his numerous ready-mix operations in the metropolitan area only one is located in an
industrial zone.
Finally, Gary Botzek, the Executive Director of the Aggregate Ready-Mix Operators
of Minnesota, gave his expert testimony that ready-mix plants are typically found in
connection with mining operations.
For all practical purposes, plaintiffs' experts' testimony that ready-mix is a permitted
accessory use to a conditionally permitted gravel extraction operation in an agricultural zone
was uncontroverted. The City's evidence to the contrary again consists of the incompetent,
non-qualified testimony, or more accurately speculation by City officials. Kraft objected to
defining ready-mix operation as an accessory use to a sand and gravel extraction site by
analogizing the situation to the City's allowance of cattle raising in an agricultural zone but
excluding on the same site the slaughter of the cattle. Kraft's analogy fails the salient
ingredient of an accessory use; namely, that slaughterhouses are not customarily incidental
to cattle raising. Likewise, Ekola could only support his conclusion that a ready-mix
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operation is not an accessory use to a sand and gravel extraction operation by citing to vague
recollections of some sites in Shakopee which he believed did not have a ready-mix
operation.
C. The City Presented Irrelevant and Unsupported Alternative Theories.
Despite the Court's explicit restriction of the issue before it to be whether a ready-
mix operation is processing (Order and Memorandum dated August 21, 1991), the trial
witnessed the City's attempt to avoid this issue and resolve the case under alternative
theories. The City put forth evidence going to two erroneous resolutions of the case: (1)
that plaintiffs were time-barred from appealing the City Administrator's interpretation that
ready-mix was not a permitted use; and (2) that plaintiffs' setting up of the portable ready-
mix equipment violated CUP conditions and thus barred the ready-mix operation. The
record going to the former issue backfires on the City, and the latter contention simply has
no support in the record.
1. Plaintiffs were not Time-barred to Appeal.
On June 13, 1991, the City Administrator, Dennis Kraft,wrote plaintiffs and directed
them to remove the ready-mix processing plant. Kraft relied on his or his unqualified staff's
"interpretation" that the ready-mix processing was not a permitted use on the Property.
(Plaintiffs'Trial Exhibit 10) (emphasis added). Even though plaintiffs voluntarily elected not
to operate the ready-mix plant following the City's notification,' the City Attorney, Karen
To date,the ready-mix aggregate process and operation has produced only an estimated
100 yards of concrete, which is the equivalent to approximately to 1-112 hours of continuous
operation. This minimal operation is attributable to initial runs to check for proper set up
of the operation and subsequent periodic rims to insure continued maintenance of the
equipment. (Testimony of Mathias Fischer).
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Marty, threatened in a Ietter dated July 25, 1991, to revoke the CUP if the equipment was
not removed from the Property by July 31, 1991. (Plaintiffs' Trial Exhibit 11).
The City Attorney's letter gave the plaintiffs "retrospective" notification that the City
Administrator's June 13th letter was an appealable City determination pursuant to the
Zoning Ordinance. The City maintained that the plaintiffs had 7 days in which to appeal
the June 13th City Administrator's "interpretation." By the time plaintiffs were given notice
of the City's position, the time for appeal had expired by over a month.
The City Attorney's July 25th letter was the first and only notification to plaintiffs
prior to revocation that the City Administrator's June 13th letter was, in fact, a final
determination pursuant to § 11.04, Subd. 4 of the Ordinance. Plaintiffs were never given
notice that Kraft's determination was appealable, or that such appeal was required within
7 days. It appears that the City's standard practice is to notify property owners in advance
of a 7-day period for appeal pursuant to the Zoning Ordinance. (Plaintiffs' Trial Exhibits
12, 13 and 14). In fact, the City Administrator admitted that the City routinely notifies
adversely affected property owners of the 7-day appeal period when"formal"determinations
have been made. (Testimony of Kraft).
By the wording of its June 13th letter and its subsequent claim that the time for
appeal had expired, it is obvious that the City attempted to sucker plaintiffs into
unknowingly sacrificing their due process rights. In June,the City told plaintiffs that the City
"may" initiate legal action. The City never mentioned any mandatory steps the plaintiffs
could, yet alone must, take to protect their rights. By July 25, however, the City was able
to inform plaintiffs, chapter and verse, about the procedural rights that the City maintains
419664
18
were already forfeited. Moreover, the City Administrator failed to warn the plaintiffs of the
7-day appeal period even though he knew about the long-standing legal dispute between the
parties regarding the use of the Property, including Scott County Lumber, 417 N.W.2d 721.
Kraft characterized that case as a "bitter" loss for the City. (Testimony of Kraft).
The City Administrator also admitted that there was an informal and cooperative
course of dealing between the City regulators and the gravel operators since the Court
ordered the permits to be issued. In the past the operators had come to the City to
informally discuss permit issues and the City had worked with the operator on various
compliance matters. For example, Ekola prepared the site map (see Plaintiffs'Trial Exhibit
26) which was used for the CUP amendment regarding security lighting at the pit. Planning
staff reports and the Planning Commission minutes reveal that the operator was
conscientious and responsive to the City regulatory requests. (See Plaintiffs'Trial Exhibits 5
and 7).
But on June 13, 1991, the City claims that the cooperative and informal course of
dealing between it and NBZ changed without notice. The City attempts to boot strap
Kraft's letter from a warning that legal action "may" be initiated to a final determination or
interpretation under the Zoning Ordinance, from which a formal and timely appeal must be
taken. Fundamental due process prevents the City from changing the rules of the game
without advising plaintiffs of their appeal rights.
The injustice of the due process violation which the City attempted to wrought on the
plaintiffs is underscored by the subsequent "extreme" action of the City. Despite available
alternatives, such as misdemeanor prosecution, or an injunctive action seeking removal of
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19
the plant, the City took the admittedly "most extreme" step of revoking plaintiffs' CUP and
Mineral Extraction and Land Rehabilitation Permit. (Testimony of Kraft). Curiously, prior
to the July 25th notification, the City had already made preparations to revoke plaintiffs'
CUP. (Plaintiffs' Trial Exhibit 16). Of course, plaintiffs were never given notice of this
revocation planning.
In contrast to the City's brinkmanship, plaintiffs attempted to resolve the dispute
through the only available channel: this Court. The futility of going through the City's
procedures had been demonstrated by the City's rejection of plaintiffs' land use proposals
in 1981, 1985 and its punitive threat to revoke the permits in 1991. (Testimony of
Noterman). Consequently,with the revocation issue ultimately set for public hearing before
the City Council on August 20, 1991, plaintiffs brought a Motion for a Temporary
Restraining Order before this Court.
Plaintiffs believed in good faith that their ready-mix operation was a permitted use
on the Property. (Id). Plaintiffs are also willing to disassemble the ready-mix equipment
upon a judicial determination that the ready-mix operation is a non-permitted use on the
Property. (Id.). But if plaintiffs are correct and a ready-mix processing operation is
ultimately allowed by the courts, they should not be required to take equipment down just
to avoid the City's caprice. The wasted cost of again setting up the plant are not justified
and would punish plaintiffs for legally using their land. The critical enforcement issues are
whether plaintiffs had a good faith belief that the ready-mix processing was permitted when
they set it up; whether the plant was operated in defiance of the City claim that the plant
wasn't allowed; and whether plaintiffs are willing to abide by the ultimate judicial
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20
determination of this matter. Each of these issues have been addressed and none support
the enforcement action taken by the City.
2. The Alleged CUP Violations are not Supported by the Record.
The City alleged the following violations: Condition No. 8 (failure to secure City
approval for portable buildings); Condition Nos. 16 and 17 (non-compliance with submitted
maps and plans); Condition No. 18 (failure to prepare an Environmental Assessment
Worksheet for the ready-mix operation); and Condition No. 19 (taking action which could
delay completion of the use of the Property beyond the permitted 17 years). Each alleged
violation is unfounded.
First, the ready-mix equipment is not a building as defined by Shakopee Zoning
Ordinance, § 11.02, Subd. 12. (Plaintiffs' Trial Exhibit 4). The ready-mix processing plant
does not have a "roof' and it does not "provide shelter or enclosure for persons, animals or
chattel." These are the definitional criteria of"Buildings" pursuant to § 11.02, subd. 12 of
the Ordinance. Therefore no building official approval was necessary. In any event, the City
is estopped from claiming building approval is necessary for this equipment because it failed
to object to the placement of similar crusher and wash plant equipment on the property
without approval by the City's building officials. (See Testimony of Kraft and Ekola;
Plaintiffs'Trial Exhibits 8 and 14). There is no reason to treat the ready-mix equipment any
differently.
Second, the City erroneously assumes that Conditions Nos. 16 and 17 preclude the
existence and independent authorization of the Mineral Extraction and Land Rehabilitation
Permit issued pursuant to Condition No. 2. This permit has been repeatedly acknowledged
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21
by the City as "approved." For example, the City planning staff in 1990 and 1991 reported
to the Planning Commission regarding Condition 2 of the CUP that the Mineral and
Extraction and Land Rehabilitation Permit had been "approved" by the City Council.
(Plaintiffs' Trial Exhibits 5 and 7). The Mineral Extraction and Land Rehabilitation Permit
was specifically re-issued in May 1991. The City has made no acknowledgements of
approval concerning CUP Conditions Nos. 16 and 17, and no specific renewal or re-issuance
of the Mining Permit under Condition No. 17 has been sought or granted.
As discussed above, the ready-mix operation is, like the crusher and the wash plant,
processing. Consequently, like the crusher and the wash plant, the ready-mix plant is not
intended to be covered by Condition Nos. 16 and 17, which concern mineral extraction only.
And plaintiffs' Mineral Extraction and Land Rehabilitation application sought a permit for
an operation described as "mining, crushing, washing and processing aggregate." (Plaintiffs'
Trial Exhibit 8). Clearly permission to conduct processing was sought, and such permission
was granted when the permit was issued in May, 1991.
Even if there was some technical deficiency by plaintiffs' failure to secure building
official approval of the ready-mix plant (Condition 8) or failure to adhere to the Gravel
Extraction Plan map by not indicating where the ready-mix equipment would be located
(Conditions 16 and 17), those matters are not material or substantive. The critical issue is
whether a ready-mix plant is processing and thus permitted by the Mineral Extraction and
Land Rehabilitation Permit. If the Court concludes that the ready-mix processing is
permitted, then the City could not deny approval of the portable building or deny deviation
from the originally submitted Map B. Use of permitted equipment could be denied only for
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"reasons relating to the public health, safety and general welfare. Scott County Lumber Co.,
417 N.W.2d at 726-27. There has been no competent evidence that the ready-mix plant
endangers the public health, safety or welfare. Therefore the City must issue any necessary
building approvals and map changes necessary to allow the permitted ready-mix processing
use to proceed. C.R Investments Inc. v. Village of Shorewood, 304 N.W.2d 320, 324 (Minn.
1981). The City can no more deny ready mixing in 1991 without showing that it endangers
health, safety and welfare than it could deny the gravel extraction permits in 1986.
Third, the expert testimony and the video of the ready-mix processing operation
refute the existence of any additional adverse environmental impacts from the ready-mix
operation. Even Kraft initially testified that there was no additional adverse environmental
impact from plaintiffs' ready-mix operation. Only when he was recalled as a defense
witness did Kraft resurrect his specious traffic and visual impact concerns. Kraft admitted
that he had no factual basis for raising a concern about traffic except he believed that
cement (constituting a relatively insignificant portion of the ready-mix mixture) would be
brought on the Property. He admitted that he-did not know whether the cement truck
traffic would have any adverse impact on the roads or the capacity of the roads. The
experts in the field all agreed that the ready-mix operation on the Property will reduce the
traffic by as much as two to three times. Further, Kraft could not distinguish his concerns
about the visual impact of the ready-mix site from a grain silo on an adjacent property. In
any event, the City could not identify any aesthetic regulations on the Property which
plaintiffs' ready-mix operation violated.
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Since there is no additional adverse environmental impact from the ready-mix
operation, Condition 18 has not been violated. The original EAW assessed the
environmental impact from gravel mining and processing. Nothing further needs to be
considered merely because a ready-mix plant will simply be added to the processing
equipment already in use on the Property. There will be no added environmental impact
to assess.
Fourth and finally, it is hard to comprehend how an increased demand for the
aggregate on the Property caused by the ready-mix plant could delay the use and
reclamation of the Property. Regardless, CUP Condition No. 19 provides no automatic
extension of the 17-year duration of the CUP. In 17 years plaintiffs' operation will be
terminated as required by Condition 19. The only effect that the ready-mix operation will
have is that the gravel will be used more efficiently and effectively during or before the
expiration of the 17-year permit life.
In summary, the City failed to put forward anv credible evidence in response to
plaintiffs' eminently qualified expert testimony. The entire expert record establishes that a
ready-mix operation is processing. Processing is the ultimate issue in this case. As an
additional basis for plaintiffs' permitted operation, plaintiffs' uncontroverted experts'
testimony demonstrates that ready-mix processing is "customarily incidental" to permitted
sand and gravel operation. Therefore, the ready-mix plant is also a permitted accessory use
or structure. The expert testimony also emphasizes the lack of any adverse environmental
impact from the ready-mix operation. Finally, the City's alternative resolutions of this case,
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24
which were also irrelevant to the issue to be tried, were without any credible support in the
record.
•
ARGUMENT
I. PLAINTIFFS' READY-MIX AGGREGATE PROCESSLNG OPERATION IS
A PERMITTED USE ON THE PROPERTY BECAUSE IT CONSTITUTES
'PROCESSING."
This Court has already determined that "processing" is a permitted use on the
Property. (Order and Memorandum dated August 21, 1991). The Mineral Extraction and
Land Rehabilitation Permit, which repeatedly provides for "processing" (S.Z.O. §11.05,
Subd. 7(C)(6) and C(8)), was issued pursuant to Condition No. 2 of the court ordered CUP.
The Extraction Permit was subsequently reapplied for and granted less than six months ago.
The Mineral Extraction and Land Rehabilitation Permit Application specifically describes
"processing aggregate" as the operation to be conducted on the Property. (Plaintiff's Trial
Exhibit 8). Moreover, processing was contemplated by the plaintiffs when submitting their
original 1985 plans on the Property (Defendant's Trial Exhibit 2) and by the Court of
Appeals in ordering the issuance of the CUP, Scott County Lumber, 417 N.W.2d 721.
"Processing" has been defined by the United States Supreme Court as: "A process
is a mode of treatment of certain materials to produce a given result. It is an act or series
of acts performed upon the subject matter, to be transformed and reduced to a different
state or thing." Cochrane v. Deener, 94 U.S. 780, 781 (1876). Every Court that has
addressed the issue of whether a ready-mix operation constitutes processing held that a
ready-mix operation is within the definition of processing.
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25
The Supreme Courts of both Ohio and Oklahoma found that for taxation purposes
the actual mixing of the component materials of concrete (water, cement, sand, gravel, rock,
airentraining agent, etc.) constitutes processing. V. N. Holderman Paving Co. v. Bowers, 170
N.E.2d 65 (Ohio 1960);Boardman Supply Co. v. Bowers, Tax Commr., 145 N.E.2d 543 (Ohio
Ct. App. 1956); Auxier-Scott Supply Co. v. Oklahoma Tax Comm'n., 527 P.2d 159 (Okla.
1974). In a similar case, the Supreme Court of Illinois in Van's Material Co. v. Dept. of
Revenue, 545 N.W.2d 695, 697 (Ill. 1989), held the "process" for concrete begins when the
four components, sand, limestone, water and cement, in specific proportion" are mixed to
produce ready-mix concrete.
More recently in a zoning case, the Montana Supreme Court found that ready-mix
operation was processing. Missoula County v. American Asphalt, Inc., 701 P.2d 990 (Mont.
1985). The facts in Missoula County are almost identical to this case. The property owners
in Missoula proposed an asphalt and concrete batching plant on property which was zoned
single family residential. The applicable zoning allowed gravel extraction only with a special
permit. The property, however, was located ina county which allowed gravel processing
only in industrial zones. In granting the asphalt and concrete operations on the subject
property, the Montana Supreme Court specifically found that aggregate processing
"include[s] washing, crushing, screening, and concrete and asphalt batching." Id. at 993, 991.
A ready-mix operation meets the United States Supreme Court definition of
processing. The ready-mix equipment, through a series of acts, transforms aggregate into
a different and distinct product: namely, concrete. The actual ready-mix process involves
the metering out of predetermined quantities and grades of aggregates. These aggregates
419664
26
are then combined into a hopper where they are mixed together with cement and water to
form a new mushy substance: ready-mix concrete. (See Testimony of Shiely). Concrete is
almost entirely aggregate, but in the processed concrete form the materials are usable and
marketable. Experts in the aggregate field universally regard ready-mix operations as
processing. The expert testimony in this case established that conclusion. The City
submitted no credible evidence to the contrary. In fact, it appears difficult if not impossible
to conclude otherwise.
The unanimous case law precedents and the uncontroverted testimony of experts in
the field supports but one conclusion: a ready-mix operation is a "processor of materials."
As such, plaintiffs' ready-mix operation is a permitted use on the Property. The City's
further interference with this use must be enjoined. Once the Court has determined that
the ready-mix operation is processing, then any technical deficiencies in plaintiffs' building
plan approval or maps are not substantive and should be ignored. The City must be ordered
to issue any procedural building approvals or site map modifications that are necessary to
conduct plaintiffs' permitted processing operation.
II. PLAINTIFFS' READY-MIX AGGREGATE PROCESSING OPERATION IS
A PERMITI-ED ACCESSORY USE TO THE EXISTING SAND AND
GRAVEL OPERATION ON THE PROPERTY.
Within an Agricultural Preservation District, upon which the Property is located, the
following uses are "permitted accessory uses":
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27
A. Any incidental machinery, structures, or buildings
necessary to the conduct of agricultural operations or
other permitted uses.
(S.Z.O. § 11.24, Subd. 4) (Plaintiffs'Trial Exhibit 4). "Accessory use or structure" is defined
as "[a] use or structure subordinate to and serving the principal use or structure on the same
lot and customarily incidental thereto." (S.Z.O. § 11.02(1)) (emphasis added).
The evidence introduced at trial is both overwhelming and undisputed that ready-mix
processing operations are "customarily incidental" to sand and gravel extraction operations.
Each of the experts in the field of aggregate extraction testified that most sand and gravel
extraction sites have a ready-mix or asphalt operation located on or near them. This fact
is further evidenced by data introduced at trial by Hoagberg who has been recognized by the
Court of Appeals as an expert in Minnesota gravel operations. Within the metropolitan
area, over 55% of all sand and gravel extraction sites have a ready-mix operation plant on
or near them. Over 65% of these sites have an asphalt plant at or near the pit. The
significant presence of ready-mix and asphalt operations on aggregate extraction sites is
explained by the simple fact that the principal purpose of sand and gravel excavation is for
either ready-mix concrete or asphalt. (See Testimony of Shiely). Thus, as the expert
testimony repeatedly emphasized, it does not make economic or environmental sense to
establish two independent sites for mining and processing gravel into a marketable and
useable form. Separate siting requires unnecessary transportation of the aggregate to
ready-mix processing sites and concrete back from the ready-mix plant.
Additionally, because aggregate is not principally sold in its unfinished state, ready-
mix processing operations are simply the necessary next step in processing of wash gravel
419664
28
into a finished, marketable product. (Testimony of Shiely). Plaintiffs' ready-mix operation
is not a departure from the existing sand and gravel operation; rather it is part of a
"continuum" of similar processing, the purpose of which is to make raw sand and gravel into
a useable product. (See Testimony of Shiely and McNeilus). The sand and gravel operation
prepares the aggregate for further processing by screening, crushing and washing aggregate
into separate grades for use in a ready-mix operation.
While the ready-mix operation merely mixes the aggregate in a hopper with water
and cement to create concrete, the sand and gravel operation requires the initial mining, a
series of screening and separating devices, a large crusher, and a wash plant. Indeed, the
sand and gravel operation requires much more involved and significantly more costly
equipment than the equipment needed for plaintiffs' ready-mix processing operation. (See
Plaintiffs' Trial Exhibits 19 and 20).
The ready-mix plant is merely subordinate to and serves the principal use on
plaintiffs' Property -- the gravel extraction. Moreover, ready-mix plants are customarily
incidental to gravel extraction operations. Significantly, the City made no effort at trial to
establish that the additional processing of this aggregate into concrete involved equipment
so dissimilar from what was already on the site that it could not be an accessory use.
Courts have consistently found asphalt and concrete plants to be a permitted
accessory use to aggregate excavation sites. The Supreme Court of Montana, held that
gravel processing, which it defined as including "washing, crushing, screening, and concrete
and asphalt batching, . . . [is] part of the recovery of gravel resources," or in other words an
accessory use to gravel extraction. Missoula County v. American Asphalt, Inc., 701 P.2d at
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29
993 (emphasis added). Further, the United States District Court of Georgia very recently
held:
[T]he Plaintiff has a right to operate asphalt and concrete plants as accessory
uses under the zoning ordinance because an accessory use is any use which is
`customarily incidental, appropriate, and subordinate to the principal use' of
the property, and evidence before the Court leaves no doubt that asphalt and
concrete plants are customarily found on a crushed stone quarry.
Blue Circle Aggregate v. Harris County, No. 90-820-Col. (M.D. Ga. June 11, 1991) (emphasis
added). Similarly, in Booth v. Board of Adj. Rockaway Tp., 234 A.2d 681, 683 (N.J. 1967),
the New Jersey Supreme Court found an asphalt plant to be an incidental accessory to
mining and quarrying operations. The Court relied on the evidence that approximately 95%
of the materials supplying the proposed facility would come from the existing operation and
that most of the equipment necessary for the proposed facility was already utilized in the
existing operations. Id. See also Silliman v. Falls City Stone Co., 305 S.W.2d 322, 324 (Ky.
1957) ('The operation of such [asphalt] plants in connection with rock quarries is customary
and should be regarded as incidental to this quarry in the sense that they are collateral or
accessory to the main operation"); Hinkle v. Board of Zoning Adjust. & App. of Shelby
County, 415 S.W. 2d 97 (Ky. 1967).
The experts and data in this case support the obvious: in the metro area ready-mix
operations are "customarily incidental"to a sand and gravel excavation site. Experts further
attest that a ready-mix operation is just another step in the processing of aggregate.
Moreover, case law has consistently held a ready-mix operation to be a permitted accessory
use to an excavation site. As such, plaintiffs'ready-mix aggregate processing operation must
be allowed to continue as a permitted accessory use on the Property.
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30
III. IN ANY EVENT, REVOCATION OF PLAINTIFFS' CUP AND MINERAL
EXTRACTION LAND REHABILITATION PERMIT WAS ARBITRARILY
ASND CAPRICIOUS BOTH AS A MATTER OF LAW AND BY THE CUP'S
TERMS OF REVOCATION
Under Minnesota statutory and case law, a CUP cannot be revoked so long as the
conditions agreed upon are not violated. Minn. Stat. § 394.301, Subd. 3 (1991); State Ex
Rel. Neighbor's Org., Etc. v. Dotty, 396 N.W.2d 55, 59 (Minn. Ct. App. 1986) (CUP "continues
until its provisions are violated"). The conditions of CUP at issue here — drafted by the
City --further limited the City's ability to revoke plaintiffs' CUP and Mineral Extraction and
Land Rehabilitation Permit. Pursuant to Condition 20 of the CUP, the permits can be
revoked only upon a finding of"substantial" or "repeated"violations of the CUP. (Plaintiffs'
Trial Exhibit 1). The City reviewed the CUP less than 6 months ago and found the plaintiffs
in compliance. Therefore, the permit revocation only alleges a "substantial" violation of the
CUP. (Testimony of Kraft). There is no claim of repeated violations.
Plaintiffs' setting up the portable ready-mix equipment without operating it was not
a "substantial" CUP violation, even assuming arguendo that the ready-mix aggregate
processing operation was not a permitted use on the Property as either "processing" or as
an "accessory use."
A. Plaintiffs did not "substantially" violate the CUP.
The City's only alleged violation was the plaintiffs' set up of the ready-mix aggregate
processing operation. The equipment has never been substantially operated. As soon as
plaintiffs learned that the City challenged whether the ready-mix plant was permitted, they
acted responsibly and immediately and did not mix concrete on the site. Even though they
believe the plant complied with the permits, plaintiffs waited to operate their plant and
419664
31
looked to the courts to resolve the issue. Had plaintiffs blatantly ignored the City's warning
and proceeded to operate their ready-mix operation as scheduled, then an arguable
"substantial" violation of the CUP could have arisen (assuming, again, that the operation
was found to be a non-permitted use). Plaintiffs have lost four months of operation and
revenues from the plant because of the City's threats and actions. The only action requested
by the City that plaintiffs have not agreed to is the dismantling of the plant prior to an
objective third-party determination of whether the ready-mix operation is a permitted use.
(Testimony of Noterman). Plaintiffs have made repeated efforts to negotiate with the City.
Moreover, plaintiffs believed they were legitimately and reasonably exercising their
rights under the CUP and the Mineral Extraction and Land Rehabilitation Permit when they
set the plant up. Based upon their knowledge of the industry and the City's ignorance about -
gravel extraction and processing, the plaintiffs, in good faith, concluded that a ready-mix
operation is a permitted use on the Property. When the City disputed that conclusion,
plaintiffs sought a judicial determination of the correctness of their proposed use on the
Property. (See Testimony of Noterman). The City has failed to lawfully and fairly regulate
the use of plaintiffs' land for over a decade. The latest actions concerning the ready-mix
operation are just a continuation of this pattern. Consequently, given the obvious futility of
their trying to resolve a matter with the City, the plaintiffs resorted to the courts.
The law and case precedent about whether the ready-mix operation constitutes either
"processing" within the Mineral Extraction and Land Rehabilitation Permit or a permitted
accessory use to the existing sand and gravel operation demonstrate that the plaintiffs were
not in substantial defiance of the zoning and permit restrictions on the Property. Rather,
419664
32
their proposed use on the Property for ready-mix processing has, in fact, been uniformly
permitted in the jurisdictions to have confronted the issues. (See supra §§ I and II). As
such, plaintiffs' conduct in setting up the ready-mix equipment without more can at worse
be seen as "mistaken," but in no way can it be judged as constituting a "substantial"violation
of the CUP.
Furthermore,in order to uphold the CUP permit revocation,this Court must find that
plaintiffs substantially violated the permit. Neither the Zoning Ordinance nor the permit
define "substantial." But a substantial violation must be interpreted in the context of the law
relating to CUP denial. In other words, to find a substantial violation, the City must have
the same sort of evidence that would be necessary to deny a CUP. As established in Scott
County Lumber, the City's denial of a CUP must be for reasons relating to the public's
health, safety or welfare. 417 N.W.2d at 726-27. Therefore, a substantial violation,justifying
permit revocation, must also be for reasons relating to public health, safety or welfare.
There is absolutely no evidence to support a find that the mere set up and non-
operation of a ready-mix plant endangers the public health, safety or welfare. Therefore,
there is not a legally sufficient basis to support a finding that plaintiffs substantially violated
the permit.
B. The reasonableness of plaintiffs conduct following notification of its
alleged CUP violation legally bars the City's Revocation of the CUP
It is inappropriate for a court to grant or uphold a decision terminating the
operations of a business when the business to be affected has shown a willingness to rectify
the alleged violation and the business had acted with a good faith belief that its ope,ations
419664
33
were permitted. Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 537
(8th Cir. 1975).
Here, the plaintiffs testified to a willingness to disassemble the ready-mix operation
upon a judicial determination that it is a non-permitted use on the Property. The plaintiffs
have elected not to run the ready-mix operation until the issue has been decided in the
Courts. And, the plaintiffs' acted with a good faith belief that the ready-mix operation was
a permitted use on the Property. The substantial case law supporting plaintiffs' belief that
the ready-mix operation is a permitted use on the Property, either as processing or as an
accessory use, further evidences the reasonableness of plaintiffs' position.
The reasonableness of plaintiffs'conduct is particularly apparent given the substantial
evidence of the City's discriminatory treatment of the plaintiffs. First, there is the
"retrospective" notification by the City informing plaintiffs not only that the June 13th letter
of the City Administration was a final adverse determination, but also that their time for
appeal of that determination had expired. This tactic is contrary to fundamental due process
and the City's practice of affording adversely affected land owners notice of their appeal
rights. (See Plaintiffs' Trial Exhibits 12 and 13).
Second, the City pursued the most stringent and economically damaging enforcement
against the plaintiffs for their alleged violation of the CUP. This was done despite plaintiffs'
compromise position of not running the ready-mix operation until the matter was judicially
determined. Furthermore, the City had numerous other less extreme options available to
enforce its version of the permit. For example, the City could have sought injunctive
enforcement of the CUP. The City could also have charged plaintiffs with a misdemeanor
419664
34
and resolved the issues in a criminal court, or the City could have simply fined plaintiffs for
the alleged CUP violation.
Third, the City obviously plotted to revoke the permit before the matter even came .
before it for hearing. In July, the Planning Commission discussed revocation of the CUP
two weeks before the plaintiffs were even notified that this alternative was even being
contemplated. (See Plaintiffs'Trial Exhibit 16). Fourth and finally, the City determined that
the ready-mix operation was "processing," despite the absence of any expert testimony to
support this conclusion. In Scott County Lumber, 417 N.W.2d at 727-28, the Court of
Appeals held that expert testimony may not be discounted, and that the City acted
"irrationally" in reaching its conclusion by preferring to rely upon community opposition
rather than expert testimony. After being chided by the Court in 1988 for not giving proper
weight to expert testimony, the City's rejection of that evidence in this case is certainly
suspect.
In summary,the City's required finding that plaintiffs'"substantially violated"the CUP
cannot be supported by the record. Additionally,.plaintiffs'willingness to remove the ready-
mix operation if it was found to be a non-permitted use on the Property and its good faith
belief that the operation was permitted precludes the City from closing down the gravel
mining business. Consequently, the City's action is at best "arbitrary and capricious," and
perhaps more appropriately discriminatory and vengeful. In either case, the City's
revocation of the CUP must be reversed as insufficient to support the very conditions of
revocation established by the City. The mere set up of the plant does not threaten the
public's health, safety or welfare.
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35
CONCLUSION
The City's case is not only without support on the record, but also contrary to the law.
Neither the record nor case law support the City Council's "interpretation" that ready-mix
is not a permitted use on the Property. The experts in the field universally maintain that
a ready-mix operation constitutes "processing." All relevant case law precedent agrees.
Likewise, the experts and the qualified data on point establish that a ready-mix
operation is "customarily incidental" to a sand and gravel extraction operation. A ready-mix
operation is typically the final step in the processing of washed aggregate into a finished
product. For economic and environmental reasons such processing equipment is
"customarily" found at or near the sand and gravel extraction site. Case law accords with
the record, consistently finding a ready-mix operation to be a permitted accessory use to a
sand and gravel operation. Whether this is regarded as permitted processing or a permitted
accessory use, the plaintiffs' ready-mix operation on the Property is authorized by the
applicable Ordinance provisions and permits. The City must be enjoined from further
interference with plaintiffs' use of their Property..
Finally, even if the ready-mix operation is not a permitted use, the City Council's
record cannot support a finding of a "substantial" violation of the CUP. At a minimum, the
CUP and the Mineral Extraction and Land Rehabilitation Permit revocations must be
overturned to permit plaintiffs to conduct their sand and gravel extraction and processing
operation.
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Dated: October ,. , 1991.
BRIGGS AND MORGAN
BY • /-•–•—
yimothy R. Thornton k#109630)
Jack Y. Perry (#209272)
2400 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
(612) 334-8400
Attorneys for plaintiffs NBZ Enterprises
Inc., successor in interest to Scott County
Lumber Company and Bert Noterman;
Moon Valley Aggregate, Inc.,a/k/a G &T
Trucking, Inc.
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37
10 - OTHER CIVIL
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF SCOTT FIRST JUDICIAL DISTRICT
Court File No. 91-09739
NBZ Enterprises, Inc. ,
Plaintiffs,
vs. DEFENDANT'S BRIEF
City of Shakopee,
Defendant.
ISSUES
(1) Is a ready mix plant included in the processing allowed
on Plaintiffs ' property?
(2) Did the City Council have a factual basis for its
holding that the ready mix plant substantially violated
Plaintiffs ' Conditional Use Permit?
(3) What is the appropriate remedy?
FACTUAL BACKGROUND
Plaintiffs own certain land in Shakopee, Minnesota,
hereinafter referred to as the Property, on which they operate a
sand and gravel mining operation. In order to locate this business
on the Property, in 1984-85 Plaintiffs ' predecessor in interest,
Scott County Lumber Company, filed applications with the City. The
City refused to grant the necessary permits, and Plaintiffs sued.
In 1988 they were granted Conditional Use Permit No. 376 and a
Mineral Extraction and Land Rehabilitation Permit. Soon thereafter
Plaintiffs began removing sand and gravel from their property.
In early June 1991, Plaintiffs moved a ready mix plant onto
their Property. The City became aware of the ready mix plant
through citizen complaints. At the City Council meeting of
June 4, 1991, the City Council questioned Tom Zwiers about the
ready mix plant. Tony Gleekel, Plaintiffs ' attorney at the time,
also was present.
The City advised Plaintiffs that the ready mix plant was not
permitted, and entered into discussions for its removal with Zwiers
and Gleekel. The City worked with Plaintiffs over a period of
several weeks, including the following:
June 13 , 1991, letter from Dennis Kraft, City
Administrator, to Tom Zwiers. (P1. Ex. 10) The letter
directed Zwiers to remove the ready mix plant by June 24 ,
1991. As per standard practice, although the letter was
appealable, it did not spell out appeal procedures.
Plaintiffs neither appealed the letter, nor removed the ready
mix plant by the deadline.
June 17 , 1991, meeting between Lindberg Ekola, City
Planner, and Tom Zwiers. Zwiers advised Ekola that Plaintiffs
would not back away from the issue. He stated that the ready
mix plant was processing equipment, and threatened to sue the
City. (Testimony of Ekola)
June 24 and 25, 1991, telephone conversations between
Kraft and Gleekel . Gleekel assured Kraft that the ready mix
plant would be removed. (Testimony of Kraft)
2
July 1, 1991, meeting between Ekola and Zwiers. Zwiers
told Ekola that he had reviewed the situation with his
partners and they had decided not to remove the ready mix
plant. Zwiers stated that they felt they had the right to
operate it, and it was up to the City to stop them. Zwiers
also mentioned he would call his attorney Gerry Duffy, who is
a partner in the law firm where Gleekel works. (Testimony of
Ekola)
July 3 , 1991, letter from Gleekel to Kraft stating that
the owner of the portable ready mix plant, AVR, Inc. , had
agreed to dismantle it and would remove it from the site
within 45 days. (Def. Ex. 8)
July 25, 1991, letter from the City Attorney to Zwiers.
Attorney warned Plaintiffs that if the plant were not removed
from the site by July 31, 1991, the City would advertise for
a public hearing to consider revocation of Conditional Use
Permit No. 376 for violation of conditions 8, 16, 17, 18 , and
19, as authorized in condition 20. (Pl. Ex. 11)
Plaintiffs then advised the City that they had hired new counsel.
(At trial Zwiers claimed that Tony Gleekel did not represent
Plaintiffs. However, Plaintiffs failed to tell either Gleekel or
the City that until July 26, 1991. ) (Testimony of Gleekel and
Kraft) They did not remove the ready mix plant by July 31, and the
City correspondingly scheduled the public hearing. Plaintiffs did
seek a temporary restraining order, but it was not granted.
3
Under Paragraph 20 of Plaintiffs ' conditional use permit, the
City may review or revoke the permit. (Pl. Ex. 1) The City had
received a number of complaints, and viewed the ready mix plant to
be a substantial violation. (Testimony of Kraft) At the public
hearing, the City Council heard testimony and made findings in
their resolution relating to violations of several conditions of
the conditional use permit. (P1. Ex. 15. ) Plaintiffs did not
offer any evidence to refute any of the violations; rather,
Plaintiffs ' only evidence was testimony from Mr. Fischer and Mr.
Thornton that they believed that the ready mix plant was included
in the processing they were allowed to do on their property.
(Testimony of Kraft and Laurent) Plaintiffs did not indicate what
provisions, if any, in the conditional use permit or the mineral
extraction and land rehabilitation permit supported their position.
(P1. Ex. 15) At the end of the hearing, the City Council revoked
Plaintiffs ' conditional use permit and mineral extraction and land
rehabilitation permit. (Def. Ex. 1. )
The next day Plaintiffs obtained a preliminary injunction
prohibiting the City from interfering with their conditional use
permit. At the same time, the Court enjoined Plaintiffs from
operating the ready mix plant. Trial was set for the next month on
the issues surrounding the ready mix plant.
At trial, the City presented expert testimony on the issues
before the Court, relating to the zoning on Plaintiffs ' property,
and whether a ready mix plant is allowed under the City zoning
ordinances, Plaintiffs ' conditional use permit, or Plaintiffs '
4
mining permit. (Testimony of Ekola and Kraft) The City also
identified the facts relied upon by the City Council in determining
that the ready mix plant substantially violated Plaintiffs '
conditional use permit. (Testimony of Kraft and Laurent)
Plaintiffs presented evidence on peripheral issues, such as
who manufactures ready mix plants and their environmental impact.
None of the mining operators, equipment manufacturers, or other
witnesses presented by Plaintiffs were experts in land use or
zoning, which is the core of the matter before the Court.
Plaintiffs ' witnesses Joseph Shiely, Garwin McNeilus, Mathias
Fischer, and Rudolf Hoagberg did not know how Plaintiffs ' property
was zoned. They likewise had not even read Plaintiffs ' conditional
use permit or Plaintiffs ' mining permit. Shiely and Fischer
testified that ready mix plants are sometimes located within or
near sand and gravel mines, but had no idea how many of these were
located in industrial zones, agricultural zones, or residential
zones.
Although Plaintiffs ' use of their property is subject to an
Environmental Assessment Worksheet (EAW) , (Def. Ex. 7) Shiely and
Zwiers discussed environmental issues without having read or being
familiar with that document. Shiely and McNeilus admitted that a
ready mix plant requires hauling in cement, with additional
traffic, water use, and other impacts on the environment. Such
items would be addressed in an EAW, yet they also discussed
environmental issues without regard to Plaintiffs ' EAW.
5
Despite their lack of information on planning and zoning,
Plaintiffs ' witnesses did provide insight into the uses anticipated
to be legal on Plaintiffs ' property. McNeilus testified that sand
and gravel mining is taking raw material from the ground to
stockpiles. In comparison, he stated that processing is a
continuum with bridge construction as one end of it. Zwiers stated
that Plaintiffs started processing in 1989, and at that time their
processing was screening and crushing. He gave his opinion that
processing was washing, crushing, and screening aggregate. Bert
Notermann, who has been involved with this property since at least
1981, described his 1984-85 applications, and stated that there was
no intent to put a ready mix plant at the mine then. Hoagberg
testified that ready mix plants frequently operate at construction
sites or in former mines, and so have an independent productive
capacity without regard to the existence of a mine.
Although Zwiers is the operator of the mine, he apparently has
operated in reckless disregard to the law. He stated that he had
not read the documents described in Plaintiffs ' conditional use
permit, and was not aware of the contents of the Merila memo (Def.
Ex. 2) or the environmental assessment worksheet for this site.
(Testimony of Zwiers) Although Plaintiffs claimed the Court' s
decision in Scott County Lumber Ccmmanv v. City of Shakopee, 417
N.W.2d 721 (Minn. App. 1988) allowed them to operate a ready mix
plant, he had not read that decision.
Fischer initially did not remember the previous ready mix
plant he had in Shakopee. He eventually recognized the conditional
6
use permit he had obtained, for a ready mix plant in the Heavy
Industrial zoning district. (Def. Ex. 5)
At trial Zwiers raised, for the first time, a curious argument
that his 1991 renewal of the mining permit was either an entirely
new permit or an amendment of the 1988 permit. He did not explain
how he believed that such a permit or amendment could be issued
with no supporting documents, when, at the same time, he had
submitted documents and testimony to support amendments to
Plaintiffs ' conditional use permit. Notermann alleged the same
point, but also failed to explain how he could think that the
materials required in the original application would not be
required this time.
Notermann' s testimony lacked consistency. He claimed that his
conditional use permit allowed a ready mix plant, but was unable to
show the City any documents to support his statement. To the
contrary, he noted the absence of any mention of a ready mix plant
in the list of buildings or equipment in the Merila memo, and the
explicit disclaimer on page 1 that "There is no intent to mix
asphalt or concrete at this site. " He stated that he was involved
in obtaining the original conditional use permit and mining permit,
and he knew wells and asphalt plants needed permits, but that he
did not think he needed to contact the City prior to moving in the
ready mix plant.
The City presented two planning experts to discuss the zoning
and land use issues which are the core of this case. Lindberg
Ekola, City Planner, has worked as a planner in three states, and
7
has a masters degree in Community and Regional Planning. Ekola
testified that Plaintiffs ' use of their land is governed by the
City ordinances, Conditional Use Permit 376 and Plaintiffs ' mining
permit, which is the usual and short way of referring to the
mineral extraction and land rehabilitation permit. These permits
run with the land, and govern whoever owns the land and desires to
operate a mine there. Processing must be defined in the context of
these permits and the City ordinances, and means crushing and
screening aggregate. The City has relied upon Plaintiffs ' Maps A,
B, and C (Def. Ex. 4) and the Merila memo (Def. Ex. 2) , which do
not indicate a ready mix plant on the site.
Ekola testified that all ready mix plants in Shakopee have
been located in the Heavy Industrial zoning district, and all have
obtained a conditional use permit in order to operate. He noted
that most of them have been on construction sites, and only one on
the site with an operating mine. Ekola provided his expert opinion
that a ready mix plant is not a permitted use of Plaintiffs'
property.
The City' s next witness was Dennis Kraft. Kraft has a masters
degree in planning, and has worked for numerous planning
commissions and cities. Since beginning in Shakopee as Community
Development Director, he has been promoted to City Administrator.
Kraft is presently an adjunct professor at Hamline University, and
has been admitted into the AICP, the highest professional
certification available for planners. (Def. Ex. 12 . )
8
Kraft provided background in land use and zoning, explaining
the reason for different zoning districts, and the distinction
between the Agricultural Preservation zoning district, which is for
agricultural and residential uses, and the Heavy Industrial zoning
district, which is for the most intense manufacturing uses.
Related land uses may not necessarily go in the same zoning
district, since they may not be compatible with the surrounding
area. Kraft explained why mining needs a conditional use permit to
be in an agricultural preservation zone, and that manufacturing
uses such as ready mix plants are incompatible with the
agricultural zone. Kraft concluded with his expert opinion that a
ready mix plant is not a permitted use of Plaintiffs ' property.
Mayor Gary Laurent also testified. He is a land developer and
homebuilder, and president of his own company, Laurent Builders.
Laurent rejected Plaintiffs ' allegation that the City' s action was
vindictive, and confirmed that most of the City Council and City
staff has changed since Scott Company Lumber Company sued the City.
He was not bitter about the past litigation, although it appeared
to him that the Plaintiffs were.
When the City Council revoked Plaintiffs ' conditional use
permit, they focused on the ready mix plant. The City Council
heard from staff regarding the violations of the conditional use
permit; Plaintiffs did not refute any of the staff comments. The
City Council followed the procedure they had followed previously
that summer, and revoked the conditional use permit and mining
permit.
9
ARGUMENT
The standard of review in this case is whether the City' s
action was reasonable. Honn v. City of Coon Rapids, 313 N.W.2d 409
(Minn. 1981) . It is not, as Plaintiffs suggest, whether the City
acted arbitrarily and capriciously, or whether the public health,
safety, and welfare support a ready mix plant. Id. Plaintiffs
bear the burden of persuasion that the reasons stated by the City
Council for its actions are either without factual support in the
record or are legally insufficient. Hubbard Broadcastina, Inc. v.
City of Afton, 323 N.W. 2d 757 (Minn. 1982) . The reasonableness of
the City's actions, and the strong factual and legal basis for the
City' s position, is set forth below.
The hostility, personal attacks, and twisting of facts with
which Plaintiffs ' brief is replete, is typical of the way
Plaintiffs have acted throughout this summer. Plaintiffs took
every opportunity to accuse the City of being arbitrary and
capricious. The City sometimes found it difficult to remain calm
and objective. Nonetheless, the City carefully relied upon its
ordinances and resolutions in taking action, making sure there was
a legal and factual basis for its statements. Plaintiffs appeared
to rely upon their subjective feelings, without regard to the law.
(1) IS A READY MIX PLANT INCLUDED IN THE PROCESSING ALLOWED
ON PLAINTIFFS ' PROPERTY?
Zoning principles .
The City governs the use of land through its zoning ordinance.
Under this ordinance, Shakopee is divided into various
10
agricultural, residential, business, and industrial zoning
districts. The regulations for each zoning district list
permitted, conditional, and accessory uses. Each of these possible
listings of uses are considered below to indicate the lack of
authority for a ready mix plant on Plaintiffs' property. A land
use not included in one of the lists is prohibited. See City Code
Sec. 11.03 , Subd. 1.C; Sec. 11.24, Subd. 2 .
Zoning is based on the need to protect certain uses of land
from others. As stated in Minn. Stat. Sec. 462 . 351, cities
are faced with mounting problems in providing means of guiding
future development of land so as to insure a safer, more
pleasant and more economical environment for residential,
commercial, industrial and public activities, to preserve
agricultural and other open lands, and to promote the public
health, safety, and general welfare.
The right to use property as one wishes is subject to and limited
by the proper exercise of the police power. City of St. Paul v.
Carlone, 419 N.W. 2d 120 (Minn. App. 1988) .
Similar or related uses are not automatically allowed in the
same zoning district, as the compatibility of the uses with the
purpose of the zoning district and surrounding uses must be
considered. See, e.g. , Farmington Township v. High Plains
Cooperative, 460 N.W.2d 56 (Minn. App. 1990) . A farmer had
constructed a 30, 000 gallon petroleum tank on his property and
leased it to a cooperative. The Court required the removal of the
tank after examining "whether the activity was carried on as part
of the agricultural function or was separately organized as an
independent productive activity" . Id. at 59 . Large equipment,
leased to a third party, as an independent productive activity, is
11
prohibited. The same situation exists here: Plaintiffs have added
a large piece of equipment to their property, which equipment is
owned by a third party, and which is an independent productive
activity.
Permitted uses do not include a ready mix plant.
There is no dispute that Plaintiffs ' property is zoned
Agricultural Preservation, and therefore governed by City Code Sec.
11. 24 . (P1. Ex. 4, p. 301) Subd. 2 of that section provides that
"no structure or land shall be used except for one or more of the
following uses" . It is uncontested that sand and gravel mining,
and ready mix plants, are not included in the list of permitted
uses.
Conditional uses do not include a ready mix olant.
City Code Sec. 11.24, Subd. 3, allows structures or land to be
used for certain additional uses, if a conditional use permit is
obtained. (P1. Ex. 4, p. 301) A conditional use permit "allows
property, within the discretion of the governing body, to be used
in a manner expressly authorized by the ordinance. " TPW, Inc. v.
City of New Hooe, 388 N.W.2d 390, 392 (Minn. App. 1986) .
Provisions in local zoning ordinances for special
[conditional] use permits are designed to meet problems that
arise when a certain use, although generally compatible with
a particular zoning classification, should not be permitted as
a matter of right in every area within the zone because of
hazards inherent in the use itself or special problems which
its proposed location may present.
12
Rockville To. v. Lang, 387 N.W.2d 200, 203 (Minn. App. 1986) . The
land must be used in accordance with the conditional use permit, in
order to protect the use or the area around it.
The list of conditionally permitted uses in the Agricultural
Preservation zoning district includes "mining, sand and gravel
extraction", but not ready mix plants. A review of the relevant
definitions reveals that this phrase does not anticipate any
particular processing of the sand or gravel. City Code, Sec.
11. 02, paragraph 82 , defines mining as the extraction of sand and
gravel, without processing. (P1. Ex. 4, p.269) Likewise, the
definition of an extraction area in City Code Sec. 11. 02, paragraph
46, refers only to excavation and removal of sand and gravel,
without mention of processing. (P1. Ex. 4, p. 266) A ready mix
plant is not authorized by the plain meaning of this language.
Similar language was interpreted by the Court in Prior Lake
Aaareaates, Inc. v. City of Savage, 349 N.W. 2d 575 (Minn. App.
1984) . When a mine sought to add an asphalt plant, the Court ruled
the language did not authorize it.
Construing the terms "mining" , "excavation" and "land
reclamation" according to their plain and ordinary meaning and
construing them strictly against the city, we cannot find that
they include the processing and production of road base
materials.
At 578 . The same situation exists here: the conditionally
permitted use of "mining, sand and gravel extraction" does not
include the processing or production of road base materials,
including concrete.
13
It should be noted that the list of conditional uses allows
"structures in excess of 35 feet in height" with a conditional use
permit. (P1. Ex. 4, p. 301-1) At trial Notermann testified that
the ready mix plant is approximately 40 feet in height. Despite
the ordinance language, Plaintiffs have not sought or obtained a
conditional use permit for the ready mix plant.
In contrast, the Heavy Industrial zoning district does include
ready mix plants in its list of conditional uses. City Code Sec.
11.33 , Subd. 3 .G. (P1. Ex. 4, p. 310-9) Under the principle
inclusius unius est exclusio alterius, the inclusion of ready mix
plants in one district indicates that the exclusion in another
district was intentional. To allow ready mix plants in the
Agricultural Preservation zoning district would require judicial
amendment of the ordinance. See Prior Lake Aggregates, supra at
579.
Without ready mix plants being listed as conditional uses in
the Agricultural Preservation zoning district, the City lacks
authority to grant permission for Plaintiffs to have a ready mix
plant in the Agricultural Preservation zoning district. Cf. Prior
Lake Aggregates, supra at 579 ("there is no provision in the
[city's] zoning ordinance which allows the City Council to grant a
special use permit for an asphalt plant in a rural zone") .
Although Shakopee has had several ready mix plants, all have been
located in the Heavy Industrial zoning district, and all have
obtained conditional use permits. (Testimony of Ekola) These
included one owned by AVR, which owns the ready mix plant on
14
Plaintiffs ' property. (Testimony of Fischer) To allow the ready
mix plant here, without the proper zoning and a conditional use
permit, would be to grant Plaintiffs a special privilege denied to
all other business operators in Shakopee. That would violate the
principle that zoning ordinances are supposed to operate uniformly.
Id.
Nonetheless, Plaintiffs have argued that they may have a ready
mix plant because they have a conditional use permit for a sand and
gravel mine. Their argument appears to be three-fold: (a) their
conditional use permit allows processing, and the ready mix plant
is just more of the same; or, (b) their mining permit allows
processing, including the ready mix plant; or, (c) they received
permission to operate a ready mix plant when they sued the City to
obtain a conditional use permit back in 1985. These arguments are
mistaken, as discussed below.
(a) Plaintiffs ' conditional use Dermit does not allow a ready
mix plant.
Plaintiffs ' use of their land is governed by Conditional Use
Permit 376 . (Pl. Ex. 1) That document does not contain the phrase
"ready mix plant" or the word "processing" . Therefore, any
permission to conduct any particular processing must be contained
within the City ordinances or the documents referred to in
Conditional Use Permit 376.
Plaintiffs ' conditional use permit was granted in accordance
with City Code Sec. 11. 04 , Subd. 6. (P1 . Ex. 4, p. 285) The
ordinance requires the City Planning Commission to make certain
15
findings, which presupposes that the Planning Commission will have
full information on the proposed use of land. When Plaintiffs
applied for and received their conditional use permit, they did not
state that they were going to place a ready mix plant on the site,
and in fact did not intend to do so. (Testimony of Notermann)
Therefore, the conditional use permit does not anticipate or
authorize a ready mix plant on the site.
(b) The nrocessina allowed by Plaintiffs ' mining permit does
not include a ready mix plant.
Plaintiffs ' conditional use permit, in Conditions 2 and 17,
requires a mining permit (also known as the mineral extraction and
land rehabilitation permit) . This permit is governed by City Code
Sec. 11. 05, Subd. 7 . (P1. Ex. 4, p. 294) Neither the City Code
provisions nor Plaintiffs ' mining permit anticipate or authorize a
ready mix plant.
City Code Sec. 11.05, Subd. 7 does not mention a ready mix
plant. It does mention "processing" three times, in Subd. 7 .C,
paragraphs 6 and 7, and in Subd. 7.D. (P1. Ex. 4, pp. 296, 297)
These provisions, when read in context, do not authorize or
envision any particular kind of processing. Rather, they simply
provide that, if processing occurs, it must be located in a
particular area, in properly maintained buildings, and may continue
for up to one year after the mining operation is terminated, with
an additional conditional use permit.
Plaintiffs ' conditional use permit requires them to obtain a
mining permit in conditions 2 and 17. (P1. Ex. 1) City Code Sec.
16
11. 05, Subd. 7 .A. likewise requires a permit for all commercial
mining operations. (P1. Ex. 4, p. 294) Nonetheless, at one point
Plaintiffs claimed the ordinance was their permit. This argument
ignores Plaintiffs' action in seeking a mining permit in 1985,
(Def. Ex. 6) and in fact was rejected by Notermann at trial, who
identified the application and affirmed that Plaintiffs had a
mining permit. (Testimony of Notermann) The ordinance merely sets
forth the general framework within which a mine will be allowed.
Authority for a business to perform any particular action would be
contained in that business' own mining permit.
Plaintiffs contradicted their own argument in two other ways.
First, they made the surprising argument that they were required to
get three permits: a conditional use permit, a mineral extraction
and land rehabilitation permit, and a mining permit. This argument
appears to be based on a statement Ekola made at trial, when he was
confused by the City Attorney's reference to the "mineral
extraction and land rehabilitation permit", since he always calls
it the "mining permit" . (Testimony of Ekola) If Plaintiffs '
argument were valid, then their operation is illegal because they
do not have three permits.
Second, Plaintiffs alleged that they sought and received an
entirely new mining permit in 1991. (Testimony of Zwiers and
Notermann) This supposed new permit contains no provisions, but
rather apparently exists solely through their application. The
Planning Commission approved a permit on May 9 , 1991, but the
minutes reflect that the commission "moved to approve the re lewal"
17
of the existing permits. (P1. Ex. 14, p. 4) It is ingenuous to
argue now that the 1991 renewal was an original application, when
it did not meet any of the ordinance requirements. (See also
Plaintiffs ' brief at 22 , where they admit the existing permit was
"re-issued" . )
As Plaintiffs ' mining permit, the City has accepted those
documents described in paragraph 17 of Conditional Use Permit 376.
(Testimony of Ekola; P1. Ex. 2) These documents are the following:
maps A, B, C; the conditions of the approved permits, which are
those in Conditional Use Permit No. 376; and background information
contained in a memo prepared by Plaintiffs ' consultant, Merila and
Associates, Inc.
City Code Sec. 11. 05, Subd. 7 requires Maps A, B, and C to
show certain information. (Pl. Ex. 4, p. 294) Per the ordinance,
Map A shows existing conditions. Map B is required to show
"structures to be erected" and "location of all machinery to be
used in the mining operation". Plaintiffs' Map B shows a rock
crusher, but no ready mix plant. Map C shows the end use plan for
the site. (Def. Ex. 4) The absence of a ready mix plant on these
maps indicates that it was not intended to be included in the
machinery or processing on Plaintiffs' property.
Merila and Associates memo does mention mixing concrete, as in
a ready mix plant. (Def. Ex. 2) At page 1, it specifically states
that "There is no intent to mix asphalt or concrete at this site. "
This memo also contains listings of equipment (p. 1) and buildings
(p. 2) , in which a ready mix plant is conspicuously absent.
18
Plaintiffs seek to explain away this language, saying their
intent has changed, but their intent is not the issue. The City
Council granted Conditional Use Permit 376 based on Plaintiffs '
representations, as set forth in the Merila memo. The memo' s
language speaks for itself.
Condition 17 of Conditional Use Permit 376 requires Plaintiffs
to have a "plan for operation" . Plaintiffs fail to explain what
their plan for operation is, if it is not the maps, conditions, and
the Merila memo. In addition, Plaintiffs failed to offer any
testimony to show how the Merila memo ceased to be a part of their
plan for operation.
Notermann has applied for a mining permit previously. Fischer
has had a ready mix plant previously in Shakopee, with a
conditional use permit. Shiely operated a mine in Shakopee with
both a conditional use permit and a mining permit for years. It is
difficult to comprehend how they expect the Court to believe that
they did not know a plan for operation was required or that they
could ignore their existing one.
Based on the mining ordinance, Plaintiffs ' mining permit, Maps
A, B, and C, and the Merila and Associates memo, the processing
allowed does not include a ready mix plant. The only processing
allowed under these documents is that specified therein: crushing
and screening.
19
(c) Plaintiffs did not receive permission to operate a ready
mix plant when they sued the City in 1985 .
Plaintiffs have alleged that the decision in Scott County
Lumber Co. , Inc. v. City of Shakopee, 417 N.W. 2d 721 (Minn. App.
1988) granted them authority to have a ready mix plant. A review
of this decision, however, reveals that it does not mention ready
mix plants, nor contain the words "process" or "processing" .
Rather than give Plaintiffs' carte blanc to do anything on their
property they desire, as they imply, the Court specified that
Plaintiffs must comply with the conditions of their conditional use
permit or risk revocation of that permit. "If the applicant was to
subsequently fail to maintain the standards required by the
planning commission, the city could revoke the permit. " Id. at
722 . The Court warned Plaintiffs that they are bound by the limits
and conditions of their conditional use permit, and that the City
had the right to revoke that permit for non-compliance.
Accessory uses do not include..a ready mix plant.
In addition to permitted and conditional uses, accessory uses
are allowed in the Agricultural Preservation zoning district. City
Code section 11.24, Subd. 4, allows as accessory uses "Any
incidental machinery, structure, or buildings necessary to the
conduct of agricultural operations or other permitted uses. " (P1 .
Ex. 4, p. 301-1) Since a mine is neither an agricultural operation
nor a permitted use under Subd. 2 , it may not have an accessory
use. See Prior Lake Agareaates, supra at 579, holding that
20
conditional uses may not have accessory uses if the ordinance does
not so provide.
Assuming, arauendo, that the word "permitted" were absent from
this section, a ready mix plant nonetheless fails the definition of
an accessory use. In City Code Sec. 11.02, paragraph 1, an
accessory use is defined as a use which is (1) "subordinate to and
serving the principal use" and (2) "customarily incidental
thereto. " (Pl. Ex. 4 , p. 262) It is not relevant that uses are
related, or have similar equipment. (P1. brief at 29 . ) See Lowry
v. City of Mankato, 231 Minn. 108 (1950) .
A ready mix plant is not subordinate to, and does not serve,
mining. Plaintiffs presented no evidence on this half of the test
for an accessory use. A ready mix plant is a separate productive
activity, and can operate as an independent use of land.
(Testimony of Hoagberg and Fischer) The City has had ready mix
plants located in abandoned mines and on construction sites.
(Testimony of Ekola) A ready mix plant serves the construction of
roads and bridges; (testimony of goagberg) ; not sand and gravel
mining. After a mine is depleted, the ready mix plant may continue
in operation.
Likewise, a sand and gravel mine may operate without a ready
mix plant. (Testimony of Shiely and McNeilus) Plaintiffs ' mine
has operated for three years without a ready mix plant. (Testimony
of Zwiers and Notermann)
The second half of the test for an accessory use requires that
it be customarily incidental to the main use. A ready mix plant is
21
not customarily incidental to a mine. No mine in the City's
Agricultural Preservation zoning district has included a ready mix
plant. (Testimony of Ekola) Only one mine in Shakopee has
contained a ready mix plant, and that one is located in the Heavy
Industrial zoning district. That ready mix plant also has a
conditional use permit. (Testimony of Ekola)
Plaintiffs presented evidence on this half of the test for an
accessory use. They argued that ready mix processing is incidental
to rock crushing and sorting. There is a significant qualitative
difference between ready mix processing and rock crushing. Compare
Hawkins v. Talbot, 248 Minn. 549, 80 N.W.2d 863 (1957) with Prior
Lake Aggregates, supra. Both cases involved non-conforming mining
uses. In Hawkins, the Court held that the use of a rock crusher
was not an extension of the non-conforming use. In Prior Lake
Aagregates, on the other hand, the Court held that an asphalt plant
was an illegal extension of the non-conforming use. Ready mix
plants are far more similar to an asphalt plant, producing road
materials, than to a rock crusher. .
Plaintiffs also presented testimony that many mines have ready
mix plants on site or nearby. (Testimony of Shiely and Fischer)
However, if a ready mix plant is merely nearby, it is not within
the definition of accessory, which requires that the use be "on the
same lot. " (Pl. Ex. 4, p. 262) These witnesses did not know which
mines were located in agricultural, industrial, residential, or
other zoning districts. (Testimony of Shiely and Fischer) Since
each zoning district lists the allowed accessory uses, the zoning
22
is critical to a determination of whether a use may be allowed as
an accessory use.
Since a conditionally permitted use is not allowed an
accessory use, and since a ready mix plant fails the test of being
an accessory use to a mine, Plaintiffs are without a legal basis
for their claim that a ready mix plant is an accessory use to their
mine. Plaintiffs ' conditional use permit and mining permit spell
out the uses allowed on their property. Neither the conditional
use permit nor the mining permit anticipates or authorizes a ready
mix plant. Rather, the processing allowed on Plaintiffs ' property
is limited to the crushing and screening identified in those
permits and supporting documents.
Plaintiffs grace the Court with various out-of-context
definitions of "processing" from other states and federal courts.
They cite numerous tax cases, which have no bearing on this case
whatsoever. Many of the quotes in Plaintiffs ' brief include
asphalt plants along with ready mix plants, despite the holding in
Prior Lake Aaarecates, supra, that.an asphalt plant is not allowed
in a sand and gravel mine located in an agricultural zoning
district. The issue before this Court is not whether a ready mix
plant could be considered processing in any context, but rather
whether a ready mix plant is within the processing allowed on
Plaintiffs ' property.
As shown by review of the applicable ordinances, permits, and
cases, Plaintiffs lack authority to operate a ready mix plant on
their property. A ready mix plant is not a permitted use, a
23
conditional use, or an accessory use allowed in the Agricultural
Preservation zoning district. It is not included in the allowed
processing under Plaintiffs ' conditional use permit or mining
permit. It is not authorized in the mining ordinance, nor by the
Court' s decision in Scott County Lumber Comoanv, surra. Plaintiffs
may not place and operate a ready mix plant on their land in the
Agricultural Preservation zoning district.
(2) DID THE CITY COUNCIL HAVE A FACTUAL BASIS FOR ITS HOLDING THAT
THE READY MIX PLANT SUBSTANTIALLY VIOLATED PLAINTIFFS ' CONDITIONAL
USE PERMIT?
The City Council determined that Plaintiffs ' action in placing
a ready mix plant on their property, and by failing and refusing to
remove it, despite assurances that it would be removed,
substantially violated the terms of Plaintiffs ' conditional use
permit. (Def. Ex. 1) The particular conditions violated were
conditions 8, 16, 17, 18, and 19.
The term "substantial" is not defined in the zoning ordinance,
and therefore the usual and customary definition may be relied
upon. The definition of the term "substantial" in Webster's New
Collegiate Dictionary, (1980) is "consisting of or relating to
substance", and "not imaginary or illusory: real, true". The City
Council found substantive and real violations.
Condition 8 required all portable buildings to be approved by
the Building Official. A portable building as part of or along
with the ready mix plant. (Testimony of Kraft) Zwiers admitted
that he did not seek a building permit for it.
24
Condition 16, mentioned in the July 25, 1991 letter to
Plaintiffs, (P1. Ex. 11; Def. Ex. 1, last page) related to
adherence to Maps B and C. As discussed above, Map B showed
"structures to be erected" and "location of all machinery to be
used in the mining operation", and did not include a ready mix
plant. Plaintiffs violated this condition when they added the
ready mix plant without City Council approval.
Condition 17 required Plaintiffs to have a plan for operation,
consisting of Maps A, B, and C, conditions, and the Merila and
Associates memo. The ready mix plant violated this condition by
being contrary to the Maps and to the Merila and Associates memo,
which specifically provides that "There is no intent to mix asphalt
or concrete at this site. " (Def. Ex. 2, p. 1)
Condition 18 required an environmental assessment worksheet.
(Def. Ex. 7) The EAW for Plaintiffs' property did not consider or
allow the use of ground water or water utilities, nor did it
mention or authorize a ready mix plant. The ready mix plant will
use substantial water and impact the environment contrary to the
descriptions of the project in the EAW.
Condition 19 indicates that the City's approval of the permits
is made in reliance upon Plaintiffs' representations regarding the
life of the operation. Ready mix plants are a viable use of land
by themselves, and may exist in a depleted mine. (Testimony of
Hoagberg, Fischer, and Ekola) With this additional, independently
productive, use of the property, Plaintiffs might continue this
25
non-farm, non-residential use of the property beyond the 17-year
expected life of the mine.
At the City Council meeting where these violations were
discussed, Plaintiffs did not present any evidence to refute them.
(P1. Ex. 15) Plaintiffs now try to come in, after the fact, and
justify their position. The City Council could not consider
evidence not before it. Its decision must be reviewed based on the
facts which were before it, and the validity of that decision must
be determined without regard to Plaintiffs' new arguments.
Plaintiffs arguments lack merit, as well. Condition 8
requires a building permit. Plaintiffs' attorney repeatedly asked
witnesses how many ready mix plants they had "been inside" ,
apparently admitting that a ready mix plant is a building. Cf.
Plaintiffs ' allegation in their brief that a ready mix plant has no
roof or enclosure (at p. 21; this "fact" did not appear at trial) ,
which makes it difficult to comprehend how Plaintiffs ' witnesses
had been "inside" some.
Plaintiffs do not address or attempt to excuse their
violations of Conditions 16, 17, or 18 . They ignore Conditions 16
and 17. Although they argue that there would be no detrimental
environmental impact from a ready mix plant, they ignore the fact
that the ready mix plant is not covered in Plaintiffs '
environmental assessment worksheet, required by Condition 18 .
Plaintiffs ' sole response to Condition 19 is to allege that
the mine will be depleted more quickly with a ready mix plant than
without. They ignore the potential continuation of the ready mix
26
plant if this Court allows it to be placed on their property under
their existing conditional use permit and mining permit.
Under Minn. Stat. Sec. 462. 3595, Subd. 3 , a conditional use
permit "shall remain in effect as long as the conditions agreed
upon are observed. " If a property owner fails to observe those
conditions, the City may revoke the permit. Scott County Lumber
Company, sutra, at 722 . Likewise, City Code Sec. 11. 04, Subd.
6.C. 11, (P1. Ex. 4, p. 289) , and Condition 20 of Plaintiffs '
conditional use permit provide that the City Council may revoke the
permit when the permit holder violates its conditions.
Once the City Council found violations, it could elect any of
the various available remedies. Minn. Stat. Sec. 462 . 362 provides
that a city may enforce its ordinance through penalties provided in
the ordinances, or by various court actions. The City revoked two
other conditional use permits during the past summer. (Testimony
of Laurent) It is hardly surprising that the City Council and
Planning Commission would discuss and consider revoking this one,
too, for Plaintiffs ' violations.
The City tried to work with the Plaintiffs, but the Plaintiffs
made assurances and then acted contrary to them. Plaintiffs
persistently failed and refused to cooperate with the City. After
considering Plaintiffs ' violations of their conditional use permit
in a public hearing, at which Plaintiffs could have but did not
present any evidence to refute the evidence of violations, the City
Council properly found that Plaintiffs had substantially violated
their conditional use permit.
27
(3) WHAT IS THE APPROPRIATE REMEDY?
The ready mix plant violates the City zoning ordinances, and
Plaintiffs ' conditional use permit and mining permit. Due to the
revocation of these permits, Plaintiffs have no legal right to
operate a mine on their property. Plaintiffs must close down the
mine and reclaim the land as required by City Code Sec. 11.05,
Subd. 7.D, (P1. Ex. 4) , and Plaintiffs ' Map C, which includes
specific land rehabilitation provisions for Plaintiffs ' property.
(Def. Ex. 4)
An injunction is appropriate to prohibit a property owner from
using land in violation of the City zoning ordinance. "Trial
courts are empowered to issue injunctions enforcing zoning
ordinances. " City of St. Paul, supra at 132 . As our courts have
recognized, "an injunction is often the most efficient way for a
local governmental unit to deal with continuing zoning violations. "
Rockville TP. , supra at 205; City of Minneapolis v. F and R, Inc. ,
300 N.W.2d 2, 4 (Minn. 1980) . See also City of Mahtomedi v.
Dominic Spvchalla, 308 Minn. 429, 243 N.W. 2d 31 (1976) .
The remedies requested by the City are the minimum necessary
to protect the public interest. As stated so aptly by the Court in
Rockville Tp. , supra, "There is apparent irreparable harm to a
governmental unit by a continuous and knowing violation of that
body's duly promulgated laws and regulations. To permit such
violations is to deny the local unit's authority to govern. " At
205. Plaintiffs ' continued operation in violation of the City Code
causes irreparable harm to the City.
28
Despite Plaintiffs ' request, an injunction should not be
granted to allow a violation of law. Cf. Kelty v. City of
Minneapolis, 157 MN 430, 196 N.W.487 (1923) , holding that a
plaintiff may not seek an injunction to keep an illegal structure.
The public interest lies in having ordinances enforced, not in
allowing one property owner freedom to ignore the laws when it
suits him or is profitable for his business. The City's duty of
protecting the property rights of all its citizens is paramount.
See State v. Stortmen' s Country Club, 214 Minn. 151, 7 N.W. 2d 495
(1943) .
Plaintiffs also failed to exhaust their legal remedy, and
therefore should not be granted an equitable remedy. Adelman v.
Onischuk, 271 Minn. 216, 135 N.W. 2d 670 (1965) . Under Minn. Stat.
Sec. 462 . 361, Subd. 2 ,
a municipality may raise as a defense the fact that the
complaining party has not attempted to remedy the grievance by
use of procedures available for that purpose under ordinance.
Plaintiffs failed to exhaust administrative and legal remedies when
they did not appeal the City Administrator's June 13 , 1991 letter
under City Code Sec. 11. 04, Subd. 4 .
Plaintiffs ' argument that the City owed them notice of their
appeal rights is peculiar. Plaintiffs are responsible for pursuing
their legal remedies, not the City. Likewise, Plaintiffs are
responsible for keeping track of applicable statutes of
limitations. A party serious about pursuing its legal remedies
will check the relevant statutes and ordinances.
29
The City does not customarily describe appeal information in
its enforcement letters, although it does have a practice of
notifying people after Planning Commission actions of their right
to appeal to the City Council. (Testimony of Ekola) This courtesy
should not result in an obligation in a different setting. Here,
Plaintiffs were represented by competent counsel, who indicated
that Plaintiffs were going to remove the ready mix plant.
(Testimony of Kraft and Gleekel) It is far more believable that
Plaintiffs ' counsel allowed their appeal period to lapse because he
agreed with the letter, than that the letter somehow misled
Plaintiffs into foregoing their appeal.
(Plaintiffs raise a similar argument that they were due
special notice in their letter to Judge Menke dated October 4 ,
1991, regarding amendments to the City zoning ordinance. Notices
were published and public hearings were held prior to adoption of
this ordinance. This ordinance has been discussed in public
meetings for approximately nine months, and yet Plaintiffs only now
noticed. Their failure to pay attention to the City actions, read
the published notices or minutes, attend public meetings, or watch
the meetings on television, cannot be blamed on the City. )
Plaintiffs lack clean hands. Although the City sought to work
this matter out with Plaintiffs, Plaintiffs have refused to
cooperate. Without any objective reason whatsoever, Plaintiffs
have accused the City of being arbitrary and capricious. Their
extreme prejudice seems to be based on emotions left over from
their 1985 lawsuit, and reflects a lack of awareness that staff and
30
the majority of City councilmembers have changed since that
litigation. (Testimony of Kraft and Laurent) Present staff and
City Council has no emotional ties to the earlier lawsuit, and no
ax to grind. (Testimony of Laurent)
Plaintiffs ' negative "try and make me" attitude has
effectively barred reasoned discussion of the issues. Plaintiffs
have ignored the City ordinances and their conditional use permit
and mining permit, and have failed to indicate what document or
ordinance authorizes the ready mix plant on their property, despite
requests from the City. Plaintiffs allowed their previous attorney
to represent that the ready mix plant would be removed, then broke
the promises to dismantle and remove it. (Testimony of Kraft)
Plaintiffs ' extreme prejudice has made it very difficult for the
City to work with them.
Without a conditional use permit and mining permit, Plaintiffs
may not conduct any mining activities on the Property. This fact,
coupled with Plaintiffs ' previous reluctance to comply with the
City ordinances, causes the City to respectfully request that the
Court require Plaintiffs to remove the ready mix plant from their
property, cease all mining operations, and to begin and complete
the land rehabilitation as required by law.
CONCLUSION
A ready mix plant is not a permitted, conditional, or
accessory use in the Agricultural Preservation zoning district in
Shakopee. The City Council reasonably determined thPt the
processing allowed on Plaintiffs ' property by their conditional use
31
permit and their mining permit was limited to crushing and
screening, but not making ready mix concrete. The City Council had
a valid factual basis for its determination that the ready mix
plant substantially violated Plaintiffs ' conditional use permit,
and appropriately revoked that permit and Plaintiffs ' mining
permit. Plaintiffs should be enjoined from operating the ready mix
plant on their property, and, due to the revocation of the
conditional use permit and mining permit, should cease all mining
operations and immediately begin reclamation of the land.
Respectfully submitted,
Dated: October 9, 1991 _
DEFENDANT CITY OF SHAKOPEE
71
By: Z �` �
Karen E. Marty. /
(#205746) C,%
City Attorney
129 E. First Ave.
Shakopee, MN 55379
• (612) 445-3650
[NEZ.FIN]
32
SCOTT COUNTY ECONOMIC DEVELOPMENT COALITION
MEETING MINUTES
SEPTEMBER 18, 1991
Members in Attendance: Barry Stock, Colleen Jones, Randy Kruger,
Greg Hoehn, Ken Anderson, John Albinson,
Jim Parsons, and Kay Schmudlach
Guests Present: Nat Wisser
The fifth meeting of the SCEDC was called to order at 8 : 00 a.m.
on September 18, 1991 in the Prior Lake City Hall Community
Room.
I. Approve Minutes of the August 21, 1991 SCEDC Meeting
MOTION BY JOHN ALBINSON, SECONDED BY KEN ANDERSON, TO
APPROVE THE AUGUST 21, 1991 MEETING MINUTES. THE
MOTION PASSED UNANIMOUSLY.
II. Treasurer's Report
Kay reported that the checking account balance is now
$7,431. 25. That includes the deposit from both the City
of Savage for $500. 00 and Scott County for $500.00.
However, a check for $2, 500.00 was sent yesterday to
Twin Cities Certified Development Company for membership
dues. The total in the checking account then is
$4,931.25. The only outstanding membership contribution
is yet to come from Marquette Bank of Shakopee.
III. Appointment of Additional Offices
A discussion regarding the Scott County appointment was
held. Kay was asked to contact the County to see who
would be their official representative on the Board. At
the next meeting an appointment will be made.
IV. Discuss Membership with Twin Cities Metropolitan
Development Company
Barry updated the committee on the negotiations with Bob
Heck, Executive Director of the Twin Cities Certified
Development Company. Barry reported that the coalition
has negotiated a membership contract with the Twin
Cities Certified Development Company in which half of
the membership fee, or $2, 500 will be paid up front, and
1
the remaining will come in from the revenues generated
by small business loans processed in Scott County.
Barry further reported that there are openings on the
Twin Cities Certified Development Company Board if
anyone is interested. The development company will be
sending us information that will explain the process,
and this information will be sent out to our financial
institutions so that they are familiar with the process.
The committee discussed hosting a training session with
the Board from the Scott County Economic Development
Coalition and all of the financial reps in the County.
Also the committee discussed creating a form that will
assist us when using the SBA. Barry will be
distributing the information through the next month's
agenda packet. At that time we will discuss
establishing a training session.
V. Progress on the One Year Work Program
A. Marketing Committee
Jim Parsons reported that the Marketing Committee
had met and discussed who should be their initial
contact and how they want to contact the
businesses, banks, brokers, etc. The committee had
also discussed creating a clearing house for
information and decided that it should be Barry.
The committee also discussed whether they should be
designing a brochure and creating a logo. The
entire coalition discussed the clearing house issue
and agreed that Barry would be the clearing house
information person. Barry would have, on his
computer, a data bank of all the available land and
buildings in Scott County. The Business Retention
Committee will be creating a form that will allow
us to inventory these sites. The process will be
that if someone contacts a city either through the
banks, through a broker or through a city and that
city cannot meet their needs, the next step will be
to refer them to Barry. Barry can then look
through his inventory and forward that request
either to the city official or contact the business
directly with a referral to a specific city and a
specific site.
The Marketing Committee also discussed hiring a
marketing person in the future to put together a
professional brochure.
The committee than discussed the target. The
Business Retention Committee reported that they had
also discussed this and decided that business
retention should be the number one priority. Our
2
initial focus should be maintaining and expanding
the businesses we already have in Scott County.
The Marketing Committee agreed with this. There
was also some consensus to move this initial phase
into a second phase. This may be looking outside
of Scott County into the Metropolitan area and
targeting other brokers to either an outreach
program and/or through hosting a business
exposition.
B. Business Retention Subcommittee
The Business Retention Subcommittee reported that
they had been working on several issues. One is to
create a brochure that would be very brief. A
brochure with a two or three part fold over that
will list the services of Scott County Economic
Development Coalition. The brochure would offer
contact people and list the issues in which these
businesses should be responding to such as
expansion, new location, labor, etc. The committee
is working off a brochure that was prepared by
another similar organization. The committee will
be putting the brochure together and printing out
1, 000 for initial distribution. Distribution will
be based on a list to be prepared by each city
and/or going to a list company. John Albinson
agreed to research the list companies and see if we
can purchase a more comprehensive list of all the
businesses in Scott County.
The committee also talked about doing a visit.
What we would do is pick out 6 businesses that
either are significant in size and informant and/or
in the process of or' nearing a time when they will
be expanding. Kay will be calling city reps to
identify those businesses. We will put together a
list of 6 per city to visit over the next year.
This will be approximately 36 throughout the year.
The committee assigned to do the visitation will
include the local city representative, the local
banker and someone from the business retention
team. They will be calling on these businesses to
make just a half hour or an hour presentation on
the purpose of the Scott County Economic
Development Coalition, how the coalition can help
that business and how to work with us. Kay will be
calling the cities within the next two weeks to get
these. City reps are encouraged to contact their
local financial institutions to see if there are
any businesses that are considering expansion at
this time.
3
Other things looked at by the Business Retention
Committee include an inventory of business space
and an industrial location guide. Kay was asked to
draft an inventory list that will be a check list
that should be filled out before each meeting by
the business rep to bring to the meeting to share
so that Barry can keep his data base up to date.
Another effort being made by the Business Retention
Committee is a labor survey. The labor survey will
be a comprehensive county wide labor survey and
will take the place of any Star City Survey being
done by the individual cities. Barry has contacted
the County and for 4 cents a label they will
process a label that will provide us with a name of
every registered voter in Scott County. Ken
Anderson has been working with Kay Lewis from the
Extension Service on coming up with a format for
the labor survey and a way in which to tabulate the
labor survey. Barry suggested that we contact our
utilities and ask for a fee to cover the cost.
This will be a tentative date for the survey will
be Spring.
VI. Update on Joint Powers Agreement Revisions
Barry distributed an updated copy of the Joint Powers
Agreement. The committee walked through all of the
revisions being requested by either our coalition or by
our attorneys representing it to the committee. The
committee requested Kay to have her attorney review it
and following his review, and notingno additional
changes, the committee will be requesting that their
corresponding bodies approve the changes. The October
meeting will, hopefully, be the last review of the Joint
Powers Agreement.
VII. Other Business
A survey of land and vacant building status of Scott
County communities was discussed. Kay reported that the
forms are not available at this time but will be prior
to the October meeting. They will be distributed in the
October packet so that city reps can fill them out and
share them at the meeting.
Jim Parsons noted that he was contacted by a business
about relocation in Jordan. It's called McKay Data;
they create electronic signs. They're currently located
in Prior Lake. They are looking for a site that has
both highway access and allows electronic signs. The
committee discussed this and agreed that Kay should
4
contact them prior to other communities finding sites
for this business.
John Albinson requested a recap of all the assignments.
The following assignments were made:
- John Albinson is to get a list of businesses in
Scott County.
- Barry Stock is to call the County regarding
clarification of the labels for the labor survey.
- Barry is to work with the Business Retention
Committee to produce the brochure.
- The Business Retention Committee is to meet with
the State regarding a survey format.
- The Marketing Committee is to work on a press
release to announce that we are now members of the
Twin Cities Metropolitan Certified Development
Company.
- Kay is to have the Joint Powers Agreement reviewed
by her attorney.
- Kay is to prepare a format for the Business
Inventories and the Industry Location Guide.
- Kay is to call the cities regarding setting up
visits with the 6 businesses from each community.
VIII. Adjournment
The meeting adjourned at 9:45 a.m.
5
g2"/
SHAKOPEE COMMUNITY DEVELOPMENT COMMISSION
City Council Chambers
September 18, 1991
Chairman Albinson called the meeting to order at 5: 45 p.m. with the
following members present: Charles Brandmire, Mike Beard, Jon
Albinson, Jane DuBois and Mike Pennington. Commissioners Miller
and Mars were absent. Barry Stock, Assistant City Administrator
was also present.
Brandmire/Pennington moved to approve the minutes of the July 17 ,
1991 meeting as kept. Motion carried unanimously.
Mr. Stock gave a brief economic development update. He noted that
Rahr Malting is considering a $10, 000, 000 expansion. The
expansion, which is planned for 1992 , will include a new malt
house. Mr. Stock also noted that the Shakopee City Council
recently approved preliminary and final plats for Mulberry Meadow
(Market St. ) for nine single family and two duplex lots and Meadows
6th Addition for 32 single family lots.
Mr. Stock stated that the City of Shakopee recently acquired
several parcels adjacent to 5th Ave. and Market St. At the
September 3 , 1991 Shakopee HRA meeting, staff was directed to
research development options in terms of zoning for the area in
question. Mr. Stock stated that he felt it was important to take
a comprehensive look at the overall land use of the property within
close proximity to the 5th Ave. and Market St. project when
evaluating potential land use impact. Mr. Stock then shared with
the Committee the amount of vacant residentially zoned land within
the Metropolitan Urban Service Area. At the present time there is
only 21 acres of R-3 zoned property.
Mr. Stock also noted that the Comprehensive Plan designates 4th
Ave. as a collector street. Staff believes that single family
housing developments to the south of 4th Ave. should be buffered
from 4th Ave. with either commercial development or housing of a
higher density. Since the majority of the property south of 4th
Ave. is presently occupied by single family housing, staff believes
that rezoning the property to R-3 would be more appropriate than
commercial zoning.
Mr. Stock stated that the draft Comprehensive Plan has designated
that the majority of the vacant land within the study area be used
for single family residential housing. However, the Comprehensive
Plan did not recognize the development restraints within the area.
Mr. Stock reminded the Committee that several developers in the
past have independently attempted to initiate development within
the study area. However, due to the irregularly shaped parcels,
bedrock and lack of through streets, development has become cost
prohibitive. Mr. Stock stated that rezoning the property to a
higher density would allow for the development of single family
Minutes of the
Community Development Commission Page - 2
September 18, 1991
units up to and including four-plexes and townhouses with five or
six units would also be permitted as a conditional use permit. Mr.
Stock stated that R-3 zoning would provide a buffer between 4th
Ave. and single family residential development to the south of 4th
Ave. It would also allow higher land use intensity which may make
a residential development project more feasible.
Mr. Albinson stated that he was concerned about the small piece of
property just east of the City' s Public Works compound and west of
the Shakopee East Apartments. He noted that presently the property
is zoned B-2 . Staff is proposing to rezone this property to R-4 .
Mr. Albinson stated that he felt the property owner would object to
R-4 rezoning and would possibly sue the City for a taking of his
property. It was the consensus of the Commission that Mr. Albinson
was perhaps correct and that the property in question should not be
rezoned to R-4 .
Commissioner Brandmire stated that he felt that if the City Council
was serious about taking a look at rezoning a property that they
should take a comprehensive look as outlined by staff. An overall
rezoning of the area would appear to be justified based on the
rational presented by staff.
Brandmire/Pennington moved to recommend to the Shakopee Planning
Commission that the appropriate City officials be directed to
initiate the rezoning of the property within the study area to R-3 ,
medium density residential and a small portion of R-4, multi-family
residential . Motion carried unanimously.
Discussion ensued on the Downtown Committee recommendation
regarding additional parking in the downtown area. Mr. Stock
stated that for the past two months, staff has been gathering
information regarding the availability of parking in the downtown
area. The Downtown Committee is recommending to the Community
Development Commission that they request City Council to authorize
the appropriate City officials to obtain an appraisal of the Gene
Brown property for acquisition and parking lot development
purposes.
Mr. Stock noted that MN/DOT representatives have stated that the
City must vacate the parking lots North of 1st Ave. by November 30,
1991. Mr. Stock stated that it may be possible for the City to
negotiate an agreement for the continued use of the lots beyond the
November 30, 1991 deadline. However, at some point in time, during
the actual mini bypass construction, there will be a shortage of
parking as a result of the mini bypass construction. Mr. Stock
stated that, at the present time, the major employers within the
City Hall block include the City of Shakopee and Amzak Cable. The
parking needs of these two businesses equate to approximately 34
additional 8 hour stalls. The question to be addressed revolves
around suitable parking for these persons when the actual mini
Minutes of the Page - 3
Community Development Commission September 18, 1991
bypass is being constructed through the existing parking lots North
of 1st Ave. Mr. Stock stated that the Downtown Committee did
evaluate several alternatives, including the acquisition of the
Gene Brown property. The Gene Brown parcel has a suggested list
price of $107 , 000 . The cost estimate to improve the site for
parking purposes ranges between $25, 000 and $30, 000. If the
parking lot were developed, it would create between 40 and 46 new
parking stalls. Mr. Stock noted that Mr. Brown has stated in the
past that he would not be willing to entertain a lease agreement
with the City for temporary parking needs.
A second alternative considered as a potential parking site is
located on the City owned property behind the library. The parcel
is approximately the same size as the Brown property and
subsequently generate the same number of parking spaces. The cost
estimate for parking lot construction would be comparable to the
Gene Brown parcel .
The third alternative considered by staff and the Downtown
Committee revolved around the Wampach property. Mr. Stock stated
that the Downtown Committee eliminated this as an alternative due
to its proximity to potential users of said parking lot.
Mr. Stock stated that currently Marquette Bank owns the parking lot
adjacent to their Auto Bank facility at the corner of 3rd and
Holmes St. The lot provides parking for approximately 26 stalls.
Mr. Stock noted that he has received a correspondence from Mr. Mike
Phillips, Vice-president and cashier from Marquette Bank,
suggesting a proposed leasing arrangement. Mr. Stock stated that
the site could be leased on an annual basis for approximately
$6, 600 .
Commissioner Brandmire stated that he is a little bit concerned
about the property owners who will be relocated as a result of the
mini bypass. He stated that he is also concerned about the future
development of the property North of 1st Ave. He felt that perhaps
it was time for the City to consider having a consultant or
developer look at the downtown to determine where additional
parking lots should be created as well as what redevelopment
potential there may be in the downtown area, especially on the
property located North of 1st Ave. and south of the mini bypass.
Mr. Stock stated that the Downtown Committee has met with all the
property owners who will be relocated as a result of the mini
bypass. Many of the persons to be relocated occupy residential
units. Jack Brambilla also has discussed the possibility of
renovating his building located at the corner of Lewis and 1st Ave.
for commercial purposes. Presently several of his tenants will be
forced to relocate and he is considering redeveloping the
aforementioned space for their use. Mr. Stock also stated that the
Downtown Committee is presently working on a list of work tasks
Minutes of the
Community Development Commission Page - 4
September 18, 1991
that could be performed by a consultant. The Committee has, in the
past, discussed utilizing a consultant to develop a set of requests
for proposal specifications that could be used to solicit developer
interest in the downtown area.
Mr. Brandmire stated that a number of residents feel that parking
in the downtown area is inadequate and therefore do not shop in the
downtown area. Mr. Brandmire went on to state that the
identification of additional parking spaces was not going to be the
answer to resolving all the problems in the downtown area.
Commissioner Albinson stated that he felt the idea of leasing
parking spaces from Marquette Bank seemed to be the most attractive
because it gave the City of Shakopee time to perhaps hire a
consultant who can develop a set of requests for proposals
specifications to solicit developer interest in the downtown area.
It also would simply give the City Council time to decide what, if
any, action they want to consider to facilitate redevelopment in
the downtown area.
Discussion ensued on the market demand for commercial space in
Shakopee. Discussion also ensued on what the CDC can do to
facilitate developer interest in downtown Shakopee.
Mr. Albinson stated that the viability of a redevelopment project
in downtown Shakopee is still three years down the road. Mr. Stock
stated that Mr. Albinson is correct but that if Council chooses a
redevelopment approach, it will take time. Finally, to attract a
developer is not going to happen overnight, even with a
consultant' s concept plan, market analysis and financial assistance
package.
Beard/DuBois moved to recommend to City Council that they direct
the appropriate City officials to take the necessary steps to
develop the parking lot behind 1st Ave. and also negotiate a lease
arrangement with Marquette Bank for parking adjacent to their Auto
Bank facility. Motion carried with Albinson voting nay.
Commissioner Beard stated that he felt the action taken would save
the City some money and keep other properties on the tax rolls.
Chairman Albinson stated that he was not sufficiently satisfied
that the parking behind the Library was needed. He felt that
perhaps the parking needs could be accommodated through a leasing
arrangement with Marquette Bank.
Commissioner Beard stated that he has not noticed a serious parking
problem in the downtown area. However, he stated that the downtown
business owners are here on a daily basis and that if they believe
there is a problem, that he would defer to their knowledge of the
problem. Commissioner DuBois stated that she felt that if the
Minutes of the Page - 5
Community Development Commission September 18, 1991
downtown business owners could encourage their employees to park in
parking lots further away from their businesses, or perhaps on
street, that it would eliminate much of the alleged parking problem
in the downtown area.
Commissioner DuBois questioned whether or not it would be possible
to put crushed rock down as a surface for the parking lot behind
the Library to save some dollars. Mr. Albinson stated that he
thought this would be in conflict with the City Ordinance. Mr.
Stock stated that he believed Mr. Albinson was correct.
Brandmire/Beard moved to table the review of the 1991 CDC One and
Five Year Work Plans. Motion carried unanimously.
Beard/DuBois moved to adjourn the meeting at 7 : 00 p.m. Motion
carried unanimously.
Barry A. Stock, Recording Secretary
MINUTES
OF THE
SHAKOPEE PUBLIC UTILITIES COMMISSION
The Shakopee Public Utilities Commission convened in adjourned
regular meeting on September 9 , 1991 at 4 : 30 P.M. in the Utilities
meeting room.
MEMBERS PRESENT : Commissioners Cook, Kirchmeier and O' Toole .
Also Liaison Wampach, Manager Van Hout and Secretary Menden.
Motion by Cook, seconded by O'Toole that the minutes of the
July 1 , 1991 regular meeting be approved as kept . Motion carried.
Commissioner Kirchmeier abstained.
Motion by Kirchmeier, seconded by O'Toole that the minutes of
the August 5 , 1991 regular meeting and September 3 , 1991 regular
meeting be approved as kept . Motion carried.
A communication from Murphy' s Landing regarding the approval
by their board to purchase the 150 KVA transformer over a five
year period. They will be billed for the time and material for
installing the transformer.
Liaison Wampach gave his report . Manager Van Hout was
asked whether he had gotten a request for a street light at
6th and Harrison .
Revised estimates for the downtown bypass electric relocation
was given to the Commission . The estimate for the Shakopee
Public Utilities Commission cost was $217 ,000 . 00 . The bid
opening will be held on September 18 , 1991 at the Shakopee
Public Utilities building .
The Tahpah Park sprinkler service was discussed. Manager
VanHout recommended that exception be granted from the standard
SPDC requirements for a single meter and backflow valve. The
exception is due to City ownership and control of the Park. All
State plumbing code requirements would still be met . It was
the concensus of the Commission to forego our requirement of a
meter and backflow preventor in the required location due to the
public nature of the project .
The progress of the tank painting and cleaning was
reported by Manager Van Hout .
The Comm 7sion congratuiat, T Ray Friedges on recognitior
of an accomplishment achievemer.'. ward given to him by the
MMUA on accrediation of classes cn first line supervision
taken.
The Commission was advised that notification of our cold
weather rules must be given to customers by October 15 .
Dates for the Fall Minnesota Municipal Utilities Association
meetings were given the Commission .
The Meadows 6th Addition plat was reported by Manager
Van Hout .
There were no lost time accidents for August , 1991 .
Motion by Kirchmeier, seconded by O'Toole that the
meeting be adjourned. Motion carried.
, / /. G
(.0,6 '1 �-
`
Barbara Menden, Commission Secretary
MINUTES
OF THE
SHAKOPEE PUBLIC UTILITIES COMMISSION
The Shakopee Public Utilities Commission convened in
special session on September 16, 1991 in the Utilities meeting
room.
MEMBERS PRESENT: Commissioners Kirchmeier, O'Toole and
Cook. Also Manager Van Hout and Secretary Menden.
The Personnel Policies for the Shakopee Public Utilities
Commission employees were discussed at length. Various changes
are to be made to the policies and will be presented to the
employees along with their 1992 wages discussion .
Motion by O' Toole, seconded by Kirchmeier to adjourn
to executive session for the purpose of contract discussions .
Motion carried.
Motion by Kirchmeier , seconded by O'Toole to adjourn .
Motion carried .
1 k
-Barbara Menden, Commission Secretary
MINUTES
OF THE
SHAKOPEE PUBLIC UTILITIES COMMISSION
The Shakopee Public Utilities Commission convened in special
session on September 30, 1991 at 4 : 30 P.M. in the Utilities
meeting room .
MEMBERS PRESENT: Commissioners Cook , Kirchmeier and O'Toole .
Also Manager Van Hout . Secretary Menden was absent .
Motion by Kirchmeier, seconded by O' Toole that that
Shakopee Public Utilities Commission award the Highway 169
distribution relocation project to the low bidder, Schmader
Electric Construction in the amount of $379 , 775 . 00 . Motion
carried.
Motion by O' Toole , seconded by Kirchmeier that the •
meeting be adjourned. Motion carried.
Lou Van Rout , Manager
ATTEST:
I1.r" \ --
Barbara
Barbara Menden- C mission. Sec .
Minnesota Department of Health
Division of Environmental Health
925 Delaware Street Southeast
P.O. Box 59040
Minneapolis, MN 55459-0040
(612) 627-5100
•
September 22, 1991
. fiCT 0 7 1991
Shakopee City Council
c/o Ms. Judith Cox, Clerk Cl7y .nit-
City Hall
129 East First Avenue
Shakopee, Minnesota 55379
Dear Council Members:
This letter is to inform you of the results of pesticide analyses conducted on
water samples collected on June 5, 1991 , from city Wells Nos. 2, 6 and 7. The
sampling was performed as part of the routine monitoring of your water supply
conducted by the Minnesota Department of Health.
As indicated by the attached pesticide test results, atrazine was detected in
the well water. The Environmental Protection Agency has established a maximum
contaminant level (MCL) (enforceable standard) for atrazine.
Levels Detected Maximum Contaminant Level
Chemical (micrograms per liter) (micrograms per liter)
atrazine Not Detected (Well 2) 3.0
0.03 (Well 6)
0.09 (Well 7)
The concentration of this chemical was below the MCL.
Based on the concentration of pesticide detected, the department offers the
following recommendations or comments:
1 . There is no need to limit the use of the well due to the presence of
atrazine as long as the concentration of atrazine remains below the MCL.
2. This Department will continue to monitor the pesticide levels as a part of
our routine public water supply surveillance program.
If you have any questions regarding the analytical results, please contact me
at 612/627-5180.
Sincerely,
%-Zf..
Richard D. Clark, P.E. , Supervisor
Public Water Supply Unit
Section of Water Supply
and Well Management
RDC:RHS:bs
Enclosure
cc: John Hines, Minnesota Department of Agriculture
Water Superintendent
An Equal Opportunity Employer
r7
CITY OF SHAKOPEE
BUILDING ACTIVITY REPORT - SEPTEMBER 1991
September 1991 September 1990
No. No. Valuation No. No. Valuation
Month Y.T.D. Y.T.D. Month Y.T.D. Y.T.D.
Single Family-Sewered 5 83 5,967,850 8 69 4,375,700
Single Family-Septic 1 12 1,945, 600 3 15 1,965, 600
Multiple Dwellings - 7 779, 600
-
(# Units) (YTD Units) (-) (14) - (-) (-) -
Dwelling Additions 7 65 321,470 1 52 127, 450
Other 3 15 114,380 1 14 120, 110
New Comm. Bldgs 1 5 2, 611,800 1 5 4, 460, 000
Comm. Bldg. Addns. - 1 40, 000 4 1,741, 000
-
New Industrial-Sewered - - - 1 11,972 , 000
Ind. Sewered Addns. - 1 16,400 - 2 1, 012,800
New Industrial-Septic - - - -- - -
- -
Ind. Septic Addns. - - -
Accessory/Garages 4 32 257,290 2 27 153 ,804
Signs & Fences 3 53 136,067 3 65 86,745
Fireplaces/Wood Stoves 1 2 5, 800 1 10 21,755
Grading/Foundation - 3 202 , 500 1 5 101, 000
Remodeling (Res. ) 1 26 188, 209 - 18 95, 000
Remodeling (Inst. ) - 1 30,000 - - -
Remodeling (Comm/Ind. ) 2 38 2 ,489,397 - 26 655,700
TOTAL TAXABLE 28 343 15, 076,363 21 313 26,888, 664
TOTAL INSTITUTIONAL - 1 30,000 - -
GRAND TOTAL 28 344 15;106,363 21 313 26,888, 664
No. YTD. No. YTD.
Variances 2 5 1 3
Conditional Use 2 8 1 6
Rezoning - 2 - -
- -
Moving -
Electric 44 263 30 236
Plumbing & Heating 49 364 36 308
Razing Permits
Residential - 1 1 2
- 2
Comm./Ind./Inst. - -
Total dwelling units in City after completion of all construction permitted
to date 4, 588
Jeanette Shaner
Building Department Secretary
CITY OF SHAKOPEE
BUILDING PERMITS ISSUED IN SEPTEMBER, 1991
9192 Dean Frick 1136 Clover Court Deck 700
9193 Timothy Walters 1009 Dakota Street Deck 1, 680
9194 Novak Fleck 963 Goldenrod Lane House 75, 000
L13 B 2, Meadows 5th
9195 Northstar Auto 4908 Valley Ind. Blvd. No. Sign 15, 000
9196 Michael Kurvers 1198 Jefferson Street Porch 4, 300
9197 LeRoy Menke 1760 E. 4th Avenue Remodel 6, 000
9198 Bernard Jeurissen 2967 Marschall Road Grain Bin 5, 000
9199 Marlyn Estenson 723 West 1st Avenue Sign 2,500
9200 Lawrence Sign Inc. 327 So. Marschall Road Sign 6,700
9201 John O'Loughlin 2988 Valley View Road Ag 30, 000
9202 Rick Jeurissen '
2967 Marschall Road Mobile Home 9, 000
9203 Novak Fleck 1064 11th Avenue East House 71, 900
L 2 B 2, Meadows 5th
9204 Gary Sorenson 4915 Eagle Creek Blvd. Deck/remodel 6,400
9205 Fine Line Homes 1308 llth 'Avenue East House 74, 150
L 16 B 2, Prairie Estates
9206 Harold Olson 940 So. Holmes Stg Bldg 2, 000
9207 Joan Rosentreter 1271 Sapphire Lane Remodel 3,800
9208 Edman Builders 2043 Eaglewood Drive House 155, 000
L 1 B 1, Eaglewood 2nd
9209 Twin City Fireplace 1057 Van Buren Stove 1, 600
9210 Jeff Flood 7700 Highway 101 Comm. 10, 000
9211 Ronald Pallansch 430 East 5th Avenue Stg Bldg 2, 000
9212 Michael Koehnen 1192 Murphy Court Deck 2, 900
9213 Great Scapes Inc. 320-330 Shawnee Trail Decks 6,500
9214 Kraus Anderson 380 Marschall Road Comm. 1, 350, 000
9215 Timothy Platt 8615 Boiling Springs Ln. Stg Bldg 9, 000
9216 John Trutnau 1016 Dakota Street Addn. 25, 000
9217 Novak Fleck 1008 Goldenrod Lane House 67, 500
L 2 B 3, Meadows 5th
9218 Novak Fleck 1043 Goldenrod Lane House 61,700
L 5 B 1, Meadows 5th
9219 Cole VanHorn 437 East 4th Avenue Stg Bldg 2, 000
Total: $2, 007,330
TO: Dennis R. Kraft, City Administrator
FROM: Gregg Voxland, Finance Director
RE: Riva Ridge Industrial Revenue bonds
DATE: October 1, 1991
I have received a copy of a letter from the trustee for the above mentioned
bonds to Mr. Hauser. The ownership of Rive Ridge has apparently failed to supply
the trustee with certain management information. Unless the information is
supplied shortly, the trustee will declare a technical default on the bond issue.
The actual payment of the debt service on the bonds is current as far as I know.
The impact of this is that while the City has no financial obligation for
bond payments, the bonds are issued in the name of the City and a default can
have a negative impact on Shakopee's image in the market place.
This is for Council informational purposes only.
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TENTATIVE AGENDA
PLANNING COMMISSION
Special Session October 17 , 1991
Scott County Courthouse: Assembly Room #111 7 :30 P.M.
Chairperson Melanie Kahleck Presiding
1. 7 : 30 P.M. CONTINUED PUBLIC HEARING: To consider an
application for a Mineral Extraction and Land Rehabilitation
and a Conditional Use Permit for gravel Mining.
Applicant: David McKenna
Action: Resolution No. 604
2 . 8 : 00 P.M. CONTINUED PUBLIC HEARING: To consider an
application for a Mineral Extraction and Land Rehabilitation
and a Conditional Use Permit for gravel Mining.
Applicant: Raymond Ames
Action: Resolution No. 624
3 . Adjourn
Lindberg S. Ekola
City Planner
NOTE TO PLANNING MEMBERS :
1. If you have any questions or need additional information on
any of the above items, please call Terrie or Aggie on the
Monday or Tuesday prior to the meeting at 445-3650 .
2 . If you are unable to attend the meeting, please call the
Planning Department prior to the meeting.
TENTATIVE AGENDA
ADJ.REG.SESSION SHAKOPEE, MINNESOTA OCTOBER 15, 1991
Mayor Gary Laurent presiding
Swearing in of new police officer, Craig Robson
1] Roll Call at 7 : 00 P.M.
2] Reading by Mayor Laurent of City' s Non-Discrimination Policy
3] Approval of Agenda
4] Liaison Reports from Councilmembers
5] Mayor' s Report
6] RECOGNITION BY CITY COUNCIL OF INTERESTED CITIZENS
7 ] Approval of Consent Business - (All items listed with an
asterisk are considered to be routine by the City Council
and will be enacted by one motion. There will be no
separate discussion of these items unless a Councilmember
so requests, in which event the item will be removed from
the consent agenda and considered in its normal sequence
on the agenda. )
8] Approval of Minutes of September 17th, and 24th, 1991
9] Communications:
10] 7 : 30 P.M. Public Hearing on the vacation of cartways
(Breegeman, Mielke, and Petsch)
11] Boards and Commissions: Planning Commission:
*a] Correcting Grammatical Errors in the Zoning Regulations,
Ordinance No. 320
12 ] Reports from Staff:
a] Report by City Attorney on Roberts Rules - Consideration
of suspension of rules to reconsider amending zoning
ordinance_
b] Early Retirement
*c] Approve Paying Assessment Against City Property
*d] Comprehensive Sewer Plan
*e] Request for Deferment of Special Assessments
*f] Application for Premises Permit
*g] Approve Bills in Amount of $612 , 275. 54
*h] Purchasing Error
13 ] Resolutions and Ordinances:
*a] Ord. No. 321 - Changing Snow Emergency Routes
14] Other Business:
15] Adjourn
Dennis R. Kraft, City Administrator
OFFICIAL PROCEEDINGS OF THE SHAKOPEE CITY COUNCIL
ADJ. REG. SESSION SHAKOPEE, MINNESOTA SEPTEMBER 17 , 1991
Mayor Laurent called the meeting to order with Cncl. Vierling,
Clay, Zak, Sweeney and Wampach present. Also present were Dennis
Kraft, City Administrator; Barry Stock, Asst. City Administrator;
Dave Hutton, City Engineer; Karen Marty, City Attorney; Lindberg
Ekola, City Planner; and Judith Cox, City Clerk.
The following items were added to the agenda:
16 . 5 - Special HRA meeting.
13A - Discussion on assessments for 2nd Avenue.
Sweeney/Vierling moved to approve the agenda as amended. Motion
carried unanimously.
Liaison reports were given by Councilmembers.
Mayor Laurent gave the Mayors report.
Mayor Laurent asked if there was anyone from the audience who
wished to address anything not on the agenda. There was no
response.
The following items were added to the consent business:
10A - Clete Link rezoning request.
11F - Stop sign at Bluff Avenue.
lli - Vacation of Cartways.
12C - Resolution No. 3468 .
The following items were removed from consent business:
10E - Preliminary and final plat of Mulberry Meadow.
11h - Shakopee Bypass - Letter of Understanding.
Vierling/Zak moved to approve the consent business as amended. _
Motion carried with Cncl. Sweeney abstaining from 11F.
Wampach/Zak moved to approve the minutes of August 20, 27 , and
28th, 1991. Motion carried unanimously.
Mr. Jim Stillman was present to give a review of the Municipal
Facility Task Force Report. He said the goal of the task force was
to identify and analyze needs within the moratorium area and south
of the Senior High School, and to look at the different funding
options available. The high priorities the task force identified
were a Community Civic Center, Sr. High School addition, Additional
Athletic Fields, Soccer, Football, etc. , Sr. Housing, City Hall ,
Library, Band Shell .
Official Proceedings of the September 17 , 1991
Shakopee City Council Page -2-
Sweeney/Wampach moved to direct the appropriate city officials to
place the Municipal Facility Task Force Report on the next
Committee of the Whole agenda for further discussion. Motion
carried unanimously.
Clay/Sweeney moved to direct staff to prepare necessary documents
to release a portion of the land South of High School from the
moratorium. Motion carried unanimously.
Mayor Laurent opened the public hearing on an amendment to the
zoning ordinance which would delete mineral extraction as a
conditional use in the Agricultural and Rural Residential districts
- Ordinance No. 304 .
Mr. Ekola explained that City Council directed staff to schedule
another public hearing to reconsider the proposed ordinance
amendment to delete mineral extraction as a conditional use in the
AG and R-1 districts. Subsequent to this action the Planning
Commission reaffirmed their earlier action to recommend to City
Council to delete mineral extraction as a conditional use in the Ag
and R-1 districts. He stated that the four alternatives identified
by staff are to adopt the ordinance amendment, amend the ordinance
as drafted, table the ordinance, or take no action.
James Bates, 16670 Franklin Trail, representing Richard and Dave
McKenna, said the McKenna ' s have been working on this project since
September of 1990 and have spent a large amount of money in
pursuing the permit for a gravel operation on the border of Prior
Lake and Shakopee. He said it would be unfair to the McKenna 's to
delete mineral extraction as a conditional use now as they have
followed all the rules to obtain a permit. They requested that the
matter be delayed to allow additional time for their permit
application to be completed.
Dave McKenna, 8221 Horizon Dr. , addressed the mediation that will
be taking place on Friday, September 27th. He said they are
prepared to go to the Planning Commission when the Environmental
Assessment Worksheet is completed.
Mayor Laurent closed the public hearing.
Dennis Kraft said that if the ordinance is passed, their
alternative is to either sue or apply for a rezoning from AG to
Industrial . Melanie Kahleck was present and said the Planning
Commission would require that an Environmental Assessment Worksheet
be done.
Discussion was held on adopting the ordinance but postponing its
effective date.
Official Proceedings of the September 17 , 1991
Shakopee City Council Page -3-
Zak/Sweeney offered Ordinance No. 304 , An Ordinance of the City of
Shakopee amending City Code, Chapter 11, Zoning Ordinance by
amending Section 11. 24 , Agricultural Preservation District (AG) ,
and Section 11. 25, Rural Residential District (R-1) , to delete
mineral extraction as a conditional use, and moved its adoption.
Sweeney/Zak moved to amend the ordinance to become effective as of
November 7 , 1991. Motion carried with Cncl. Clay opposed.
Motion carried unanimously on main motion as amended.
Dave Hutton reviewed the request for street light improvements to
6th Avenue between Jackson and Van Buren Street. The total cost
would be approximately $1, 375, with $45. 83 cost per parcel .
Jim Realander, 1679 6th Avenue, was present and said he is in favor
of having the street light put in and assessed to the property
owners.
Mayor Laurent stated that the City appreciated Mr. Jasper' s giving
an easement for the street light at no cost to the City.
Mayor Laurent closed the public hearing.
Wampach/Zak offered Resolution No. 3469 , A Resolution Ordering a
Street Light on 6th Avenue, Between Jackson Street and VanBuren
Street, Project 1991-9 , and moved for its adoption. Motion carried
unanimously.
Vierling/Zak offered Ordinance No. 318 , an Ordinance of the City of
Shakopee, Minnesota, Rezoning Certain Land From R-4 to B-1, Which
Land is Located at 1440 West 3rd Avenue, and moved for its
adoption. (Motion approved under consent business) .
Lindberg Ekola reviewed an ordinance amendment which would allow
additional conditional uses in the I-1 and I-2 districts. It would
allow the sale of industrial equipment and licensed recreational
vehicles. He said the Planning Commission has recommended denial.
Rod Krass, representing the Brambilla ' s suggested some changes such
as allowing retail sales of passenger automobiles, and light duty
trucks that could be taken in on trade, and also to delete the
provision to allow these commercial uses in the I-1 district and
limit them only to the I-2 district. Mr. Brambilla would like to
relocate to an I-2 zone which is in his financial reach and is a
good location. Jon Albinson, representing the three property
owners adjacent to the proposed Brambilla site, said that he feels
this would be spot usage and should be looked at carefully by the
City Council . He said the sale of trade in vehicles should not be
allowed at all. Steve Korte, Conklin Company, said they are a
proponent of the Planning Commission recommended denial of this
Official Proceedings of the September 17 , 1991
Shakopee City Council Page -4-
amendment. He feels the City should follow the Planning
Commission' s recommendations and that this would constitute leap
frogging from one zone to the I-2 zone. He feels it would open up
the chance of many other businesses wanting to come into this area.
He said he had a concern on the traffic safety issue, a business
such as this would create more traffic on the thoroughfare.
Melanie Kahleck, Chair of the Planning Commission, said that the
Planning Commission voted against this proposed amendment because
of their responsibility to protect the rights of the residents
within the Valley Industrial Park.
Monique Brambilla, 620 Monroe Street, said she does not feel a
traffic safety issue would arise. Rod Krass said that in all
probability Mr. Brambilla ' s request would be the only one in 20
years. Cncl . Wampach said he feels the City should try and help
Mr. Brambilla out as best they can. He said he is in support of
the Brambilla ' s request, he has a good business and has been a good
citizen. Cncl. Vierling said that it is not Mr. Brambilla that is
being voted on, it is simply the usage of this land. Cncl. Zak
asked if the old Malkerson property would serve his needs. Mr.
Brambilla said the Malkerson property would require too much
extensive work on the already existing garages to accommodate RVs.
He said he has been in the City for 32 years and that it is not his
idea to move, he is being forced. He said he is simply asking the
City for help, this is the only available parcel that he can
afford.
Zak/Vierling offered Ordinance No. 319, An Ordinance of the City of
Shakopee, Minnesota, Amending Chapter 11, Land Use Regulation
(Zoning) , Section 11 . 32 , Light Industry (I-1) , and Section 11. 33 ,
Heavy Industrial (I-2) , By Adding 'One New Paragraph to Subd. 3 ,
Conditional Uses, In Each Section, Relating to Retail Sales, and
moved its adoption. Motion fails with Cncl . Clay, Vierling, Zak,
Mayor Laurent opposed and Cncl . Sweeney and Wampach in favor of the
ordinance.
Mayor Laurent called a recess at 9: 20 p.m.
Mayor Laurent reconvened the City Council at 9 : 35 p.m.
Vierling/Zak offered Resolution No. 3461, A Resolution Approving
the Preliminary and Final Plat of West End Addition, and moved for
its adoption. (Motion approved under consent business) .
Vierling/Zak offered Resolution No. 3462 , A Resolution Approving
the Preliminary and Final Plat of Mark J. Weinandt Addition, and
moved for its adoption. (Motion approved under consent business) .
Sweeney/Zak offered Resolution No. 3471 Resolution Authorizing
Issuance, Awarding Sale, Prescribing the Form and Details and
Providing for the Payment of $1, 725, 000 General Obligation
Official Proceedings of the September 17 , 1991
Shakopee City Council Page -5-
Improvement Bonds, Series 1991A, and moved for its adoption. Motion
carried unanimously.
Vierling/Wampach moved to direct the appropriate City officials to
enter into design agreements with Boarman, Kroos, Pfister and
Associations and Intra Design for design work on the new City Hall
in the amounts indicated in the proposals submitted by those
respective firms. Motion carried unanimously.
Sweeney/Clay offered Resolution No. 3463 , A Resolution Approving
the Preliminary and Final Plat of Mulberry Meadow 1st Addition, and
moved for its adoption. Motion carried unanimously.
Vierling/Zak offered Resolution No. 3464 , A Resolution Approving
the Final Plat of the Meadows, 6th Addition, and moved for its
adoption. (Motion approved under consent business) .
Sweeney/Vierling moved to refer the 1992-1996 Capital Improvement
Program to the Committee of the Whole for further discussion.
Motion carried unanimously.
Vierling/Zak moved to remove from table the applications from
Dangerfield ' s Restaurant, Inc. for On Sale and Sunday Intoxicating
Liquor Licenses. (Motion approved under consent business) .
Vierling/Zak moved to approve the applications and grant On-Sale
and Sunday Intoxicating Liquor Licenses to Dangerfield' s Restaurant
Inc. , 1583 East 1st Avenue and direct staff to deliver the licenses
upon their compliance with the City Code. (Motion approved under
consent business) .
Vierling/Zak moved to ratify waiving the 30 day review period for
the application for exemption from lawful gambling license by
Shakopee Ducks Unlimited for September 17 , 1991 at the Shakopee VFW
Club in Shakopee. (Motion approved under consent business) .
Vierling/Zak moved to approve the bills in the amount of
$599 , 731. 38 . (Motion approved under consent business) .
Vierling/Zak moved to authorize the appropriate City officials to
execute an agreement with the Shakopee Jaycees for the funding on
the Tahpah Park Sprinkler System, Project No. 1991-4 , whereby the
Shakopee Jaycees will contribute a total sum of $33 , 665 . 00 towards
this project. (Motion approved under consent business) .
Vierling/Zak moved to direct the appropriate City staff to make the
following changes to traffic signage on Bluff Avenue:
1. Remove the stop signs at Market Street and Bluff Avenue
because they do not meet State warrants.
Official Proceedings of the September 17, 1991
Shakopee City Council Page -6-
2 . Remove the stop signs at Prairie Street and Bluff Avenue
because they do not meet State warrants.
3. Install "No Trucks Allowed" signs at Naumkeag Street and
Bluff Avenue and any other locations on Bluff Avenue as deemed
necessary by the Public Works Department to prohibit trucks
from using that portion of Bluff Avenue between Naumkeag
Street and Main Street.
4. Install "No Parking" signs on Bluff Avenue between
Naumkeag Street and Marschall Road to prohibit trucks from
parking overnight on a city street.
(Motion approved under consent business) .
Vierling/Zak moved to appoint Dave Hutton, Public Works Director,
as the City of Shakopee's Commissioner in the Shakopee Basin
Watershed Management Organization for the terms of December 31,
1988 - December 31, 1990 and December 31, 1990 - December 31, 1992 .
(Motion approved under consent business) .
Sweeney/Clay moved to authorize the appropriate City officials to
execute a revised Letter of Understanding dated August 21, 1991
between the City of Shakopee and Mn/DOT regarding the Shakopee
Bypass (DOC #CC-190) . Motion carried with Cncl. Sweeney opposed.
Vierling/Zak offered Resolution No. 3465, A Resolution Setting a
Public Hearing to Consider Vacating 3 Unnamed Roads in the City of
Shakopee Commonly Referred to as the Mielkle driveway, the
Breegemann driveway and the Petsch driveway, and moved for its
adoption. (Motion approved under consent business) .
Dave Hutton reviewed the Scott County Transportation Plan.
Sweeney/Vierling moved to direct Dave Hutton to carry on further
discussion with Brad Larson, Scott County, and bring back the
information to Council. Motion carried unanimously.
Vierling/Clay moved to direct staff to solicit proposals for
consultant services to add two additional Engineering Consultants,
in addition to retaining Orr-Schelen-Mayeron and Associates, as the
City's consultants. Motion carried unanimously.
Vierling/Zak moved to approve the payment in the amount of
$6, 000. 00 to S. M. Hentges & Sons, Inc. , P.O. Box 212 , Shakopee, MN
55379 for the Valley Industrial Blvd. , North, Project No. 1990-8.
(Motion approved under consent business) .
The City Administrator updated the Council on meetings he has
attended regarding the Bloomington Ferry Bridge and the Highway
101/CR 18 interchange.
Official Proceedings of the September 17 , 1991page -7-
Shakopee City Council
Sweeney/Wampach moved that the first Council meeting in November be
changed to the first Wednesday in November, which is November 6th,
at 7 : 00 p.m. Motion carried unanimously.
Vierling/Zak offered Resolution No. 3466, A Resolution Accepting
Bids on Tahpah Park Sprinkler System, Project No. 1991-4 , and moved
for its adoption. (Motion approved under consent business) .
Vierling/Zak offered Resolution No. 1467 , A Resolution Accepting
Bid on Jefferson Street Watermain from 12th Avenue to Tahpah Park,
Project No. 1991-8 , and moved for its adoption. (Motion approved
under consent business) .
Vierling/Zak moved to approve a contingency in the amount of 15%
for use by the City Engineer in authorizing change orders or
quantity adjustments on the 1991-8 project. (Motion approved under
consent business) .
Vierling/Zak offered Resolution No. 3468 , A Resolution Declaring
Adequacy of Petition and Ordering the Preparation of a Report for
Improvements to Vierling Drive, Between County Road 79 and County
Road 17 , and moved for its adoption. (Motion approved under consent
business) .
Vierling/Zak offered Resolution No. 3470 , A Resolution Accepting
Bid on the 1991 Pavement Preservation Program, Project No. 1991-6,
and moved for its adoption. (Motion approved under consent
business) .
Vierling/Zak moved to authorize the appropriate City staff to
increase the contract quantities by a maximum of 25% by adding
additional streets to the 1991-6 project. (Motion approved under
consent business) .
Cncl . Sweeney stated that he had some concerns about the access of
citizens to the system. He noted that in the past residents have
contested their assessments because they were knowledgeable about
the system and how it worked. He is concerned that there may be
people who live in the 2nd Avenue improvement area with large
assessments who are not comfortable in approaching city hall and
dealing with the system and consequently are denied equal access to
the system. He suggested a pilot program where the City could
assure that the people whom the City is assessing actually
understand what their rights are and how to exercise those rights.
He suggested that we recruit some staff members whose skills are
that of dealing with people. He suggested that they draft a letter
to the people within the 2nd Avenue Improvement area offering to
meet with them on a one to one basis and explain to them what their
rights are and how to access those rights. Consensus was that the
pilot program was a good idea.
Official Proceedings of the September 17, 1991
Shakopee City Council Page -8-
The next Committee of the Whole meetings were set for October 8th
and October 22nd, at 7:00 p.m.
Mayor Laurent recessed for an executive session at 10:45 p.m.
Mayor Laurent re-convened the City Council at 11:54 p.m. and stated
that no action was taken during the executive session.
Zak/Vierling moved to direct the appropriate City officials to
execute stipulation agreements with MnDOT for the property to be
acquired as a result of the Mini By-pass project. Motion carried
unanimously.
Sweeney/Vierling moved to appoint the City Attorney as Deputy City
Clerk for the purpose of taking minutes of the City Council meeting
on September 24th at 8:30 a.m. at the Scott County Courthouse.
Motion carried unanimously.
Sweeney/Vierling moved to adjourn to September 24, 1991 at 8:30
a.m. Motion carried unanimously. [The meeting will take place at
the Scott County Courthouse prior to the trial regarding the
revocation of the conditional use permit for NBZ formerly Scott
County Lumber. ] The meeting adjourned at 11:56 p.m.
Tic
Ji d'th S. Cox
it Clerk
Carol Schultz
Recording Secretary
OFFICIAL PRECEEDINGS OF THE CITY COUNCIL
ADJ.REG.SESSION SHAKOPEE, MINNESOTA SEPTEMBER 24 , 1991
Mayor Laurent called the meeting to order at 8 : 51 a.m. Council-
members Gloria Vierling, Steve Clay, and Robert Sweeney were
present. Councilmembers Joe Zak and Jerry Wampach were absent.
Also present were Dennis R. Kraft, City Administrator; Karen Marty,
City Attorney; and Lindberg Ekola, City Planner. The meeting was
convened in a courtroom at the Scott County courthouse.
The mayor recessed the meeting for an executive session to discuss
pending litigation regarding the Council ' s revocation of the NBZ
conditional use permit.
The mayor re-convened the city council and stated that no action
had been taken during the executive session.
The meeting was adjourned at 9 : 00 a.m.
(/
Karen:'Ma `qty '
Deputy City/Clerk
RecordingLSecretary
96Q)
MEMO TO: Dennis R. Kraft, City Administrator
FROM: Dave Hutton, Public Works Director
SUBJECT: Vacation of Cartways
DATE: October 11, 1991
INTRODUCTION:
A public hearing has been scheduled for October 15, 1991 to
consider vacating three unnamed cartways/driveways.
BACKGROUND:
In 1972 , the City of Shakopee and Eagle Creek Township
consolidated. At that time, all of the township roads and
maintenance responsibilities were inherited by the City of
Shakopee. According to staff' s review of the file on this case, at
the Minnesota municipal hearings Shakopee informed the township
residents that the same level of services would be provided after
the consolidation as before. The Order of Consolidation on file at
the courthouse does not address road maintenance as it pertains to
these specific cartways.
There are 3 previously owned township roads that have long been
called cartways, which the City assumed and provides maintenance on
them. The maintenance provided consists of snow plowing, sanding,
grading, weed control , etc. The level of maintenance varies for
each of the 3 cartways. The 3 cartways are unnamed but are
commonly referred to as the Mielke, Breeggemann and Petsch
cartways. These cartways are basically driveways and in staff ' s
opinion there is some question as to whether or not they serve a
public purpose, but rather are benefiting private properties.
Based on the financial position of the City and reductions in state
aids, all departments have been asked to look for areas to reduce
expenditures . These cartways are just one of many areas being
reviewed. The Public Works Department was one of the City
departments that was being considered for layoffs in 1992 based on
the Financial Analyst ' s Report, yet more and more streets and parks
are being constructed and developed each year. It is being
increasingly more difficult to provide the same levels of service
with no staff increases.
Staff believes that the commitment to township residents in 1972 by
the City to provide the same levels of service was made in good
faith and with good intentions, but obviously the City of Shakopee
is not in the same financial position today as it was in 1972 .
Staff would like the City Council to reconsider the maintenance
responsibilities of these cartways. In that regard, a public
hearing has been scheduled for October 15, 1991.
The City Council reviewed these cartways in 1983 but based on the
opposition to the vacation by the effected property owners, elected
not to change their status.
There are some complex legal issues and property rights issues
involved. Because of those, staff would like to offer some basic
definitions and terminology that will be used during the
discussion.
"Easements" are rights given by a property owner for the use of a
strip of land by the public or any other person for any specific
purpose (City Code definition) . Easements can be private (between
property owners) or public (open to anybody) .
"Dedicated right-of-ways" are roads dedicated to the general public
use, rather than specific persons. Legally, there is no difference
between a public easement and a public right-of-way. A private
easement is different in that it is only for specific persons.
"Roads or streets" mean those public easements or right-of-ways
that are constructed to minimum City standards. For rural roads,
the minimum standards are as follows:
Right-of-way - 60 feet
Pavement width - 28 feet
Gravel shoulders width - 5 feet
Maximum cul-de-sac length - 1000 feet
"Land locked parcels" are those parcels that do not have access
directly to a public road, either by a private easement or a public
easement. If they have access by a private easement, they are not
landlocked.
"Driveways" are typically narrow roads serving only one or two
parcels. They do not have to meet any street standards for width
or type of driving surface. The City Code does not allow more than
2 homes to share a driveway.
Dead end streets are not allowed in the City Code. They must end
in a cul-de-sac.
Because the legal issues and levels of maintenance are different
for each driveway, staff is proposing to discuss each one
separately with specific alternatives for each.
CartWay Locations
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MIELKE DRIVEWAY
BACKGROUND INFORMATION:
Physical Condition of Driveway:
This driveway extends south of County Road 42 for
approximately 1/2 mile. (See following map) . It is a dead
end driveway with no cul-de-sac.
The driveway is gravel and is approximately the width of an
alley (16 feet wide) . There is an existing electric line
along this roadway and, if vacated, an easement would need to
be retained for that utility.
Public Use:
This driveway appears to have been constructed to serve two
landlocked parcels, namely the Stemmer and Mielke parcels.
There is a house on each of those parcels that share the
driveway. The driveway also abuts 3 other parcels, namely two
Theis parcels and the Goldberg parcel. The properties
abutting the driveway are essentially agriculture in nature.
There is another parcel located in Prior Lake that is
landlocked just east of the southerly Theis parcel, but has
access to this driveway by virtue of a private easement with
Theis. This parcel is legally landlocked now and vacating
this road will not change that existing condition.
The Mdewakanton Sioux Community recently purchased the Mielke
property and will be using the driveway for certain community
events (i. e. pow wows, etc)-. Since the Community owns
adjacent contiguous parcels which abut County Road 82 , this
property (old Mielke) is no longer landlocked, but rather
directly abuts County Road 82 . (See attached map on their
preliminary development proposal) .
Extent of City Maintenance:
The City maintains the entire 0. 5 miles of driveway by plowing
the road after each snowfall, sanding if necessary, grading (3
- 4 times annually) , adding several loads of gravel as needed
and weed mowing (as needed) .
Cost Savings Resulting from Vacation:
Maintenance costs are largely dependent on the severity of
winter. Based on existing salaries, equipment, and material
costs it is estimated that the City maintenance costs range
from $2 , 500 during a light winter to $3 , 500 during heavy
winters. Due to the narrow driveway it is sometime difficult
to plow without damaging the adjacent fields and ditches.
Status of Easements:
The status of any easement for this driveway are somewhat
confusing and difficult to ascertain.
It appears that originally, there was a private easement (50 '
wide) allowing the Mielke parcel to utilize adjacent Theis
parcels to access County Road 42 . It does not appear that a
public easement was ever obtained or recorded. By virtue of
maintaining the driveway, the City has assumed the public
interest but only that portion of the driveway being
maintained (16 ft. wide) .
In 1983 , when the City held the last vacation hearing, the
City Council informed the affected property owners that all
maintenance would cease unless a 50 ft. easement were
dedicated to the City and recorded. (See attached letters)
The subject easement was drafted but never signed or recorded.
The City, though, continued all maintenance.
Based on the property research, it is the City Attorney' s
opinion that there is a public easement (due to maintenance)
which is a minimum of 16 feet wide and maybe 50 feet wide.
The historical records are somewhat ambiguous making a
positive opinion impossible.
Landlocked Parcels:
The Mielke property is no longer landlocked due to a change in
ownership.
The Theis and Goldberg parcels abut County Road 42 and are not
landlocked.
The Stemmer parcel may or may not be landlocked now, but
certainly would be if the public easement were vacated.
Unless a private easement is obtained first, staff does not
believe that this driveway should be vacated. Prescriptive
easement rights may exist based on the years the driveway has
been used by Stemmer, but this law does not apply to public
easements, only private.
Other considerations:
The Sioux Community has submitted a preliminary concept plan
to develop their parcel by constructing roads to their
property from County Road 42 and County Road 83 (See attached
map) . Their proposal would be to construct those roads within
their boundaries with their own funds, but petition the City
to construct the connector roads outside of their property.
The Community' s proposal was just submitted to staff recently
and is still under review by the Community. No timetable for
the requested improvement is given.
Due to the fact that this road is substandard and does not
conform to City requirements and only wide enough for one
vehicle, staff does not feel that this road could be used for
major traffic generating events such as a pow wow without
first upgrading the road to minimum City standards. It is
also quite difficult to maintain in its present condition.
The City' s existing policy for new road construction is to
assess them 100% to the abutting benefitted properties.
Comprehensive Plan:
This area is zoned R-1 and is essentially agriculture in
nature. It will probably remain rural for some time. The
City' s Comprehensive Plan does not identify a future street in
this location, although the aforementioned preliminary
development plan should be considered.
ALTERNATIVES:
1. Vacate the road.
2 . Cease all maintenance (abandon) .
3 . Do nothing - Keep maintenance as is.
4 . Upgrade this road to minimum City standards (28 feet of
pavement with 5 ft. shoulders) .
RECOMMENDATION:
Based on the legal research done by staff and the preliminary
development proposal submitted, staff recommends No. 3 , not
vacating the road.
Staff also recommends Alternative No. 4 , but the timing of this
construction should be in conjunction with the proposed Sioux
Community development. Additional right-of-way would be necessary
to construct a City street. Consideration should be given to
placing this improvement on the City' s 5 Year Capital Improvement
Program.
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BREEGGEMANN DRIVEWAY
BACKGROUND INFORMATION:
Physical Condition of Driveway:
This driveway extends east of County Road 17 for a distance of
approximately 1. 0 miles. (See following map) . The driveway
is essentially a non-existent, substandard road. There is no
gravel base, nor is it suitable for any vehicular traffic or
safety vehicles. The driveway is approximately 8 - 10 feet
wide and is essential two wheel paths wore in the ground. It
is only wide enough for one vehicle to occupy it at a time.
Public Use:
This driveway is basically used by farm equipment (tractors,
combines, etc. ) to access adjoining fields. There are no
homes on this driveway.
Extent of City Maintenance:
Prior to 1983 , the City maintained this driveway on an "as
needed" basis, consisting of snow plowing and occasional
grading. Since 1983 (as a result of the last vacation
hearing) , the City Council ordered all maintenance on this
road to cease. There has been no City maintenance since 1983 .
(Note: If there is no maintenance done what is the public
benefit and purpose of this road?)
Cost Savings Resulting from Vacating:
None, as there is no maintenance being performed. If future
maintenance is requested, though, the City may need to resume
maintenance again.
Status of Public/Private Easements:
Based on research at the County Recorders Office, it appears
that the first segment, abutted by Hauer and Bernhagen,
contains a 16 foot easement (8 feet on each side of the
property line) . It is not clear as to whether this is a
private easement or public easement. By virtue of maintaining
this easement from 1972 to 1983 , the City Attorney feels that
it is a public easement.
The next segment, abutted by Hauer and Bernhagen, has a 33
foot public road easement on the north side of the section
line.
The next segment, abutted by Hauer and Breeggemann has a 66
foot public road easement.
West of Breeggemann there is a 33 foot public road easement
abutted solely by Hauer property.
Landlocked parcels:
Based on the review of property descriptions, it appears that
only the Breeggemann parcel could be considered landlocked if
the public road were vacated. This parcel may have
prescriptive easement rights to the 16 foot easement but would
not have any on the remaining 33 ft. public easement if
vacated.
Comprehensive Plan:
The Comprehensive Plan does not identify a future street in
this area. If this area were to develop, any future street
needs would be obtained through the platting process.
ALTERNATIVES:
1. Vacate the road.
2 . Close the road (Abandon) .
3 . Obtain the necessary right-of-way and construct a City street
to minimum standards.
4 . Do nothing.
RECOMMENDATION:
Staff seriously questions the public purpose of this road but does
not recommend vacating the roadway because it may or may not
landlock the Breeggemann parcel. If the first 16 foot easement is
private, Breeggemann would have prescriptive rights to continue
using the driveway without it being a public road. It cannot be
determined if this easement is public or private though.
Since the condition of the road makes it unsuitable for vehicular
traffic, staff recommends simply installing a "road closed" sign at
the entrance of the road (essentially abandoning it) until such
time as the road is constructed to minimum City standards. By
officially closing the road, the City is informing the public that
there will be no maintenance on this road, thereby reducing any
liability associated with a non-standard City road.
Staff does not feel that a City street should be built on this road
at this time, but rather when development warrants it. Due to the
present condition of this road, abutting land parcels will not be
permitted to develop until the proper infrastructure is in place.
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PETSCH DRIVEWAY
BACKGROUND INFORMATION:
Physical Condition of Driveway:
This driveway extends east of McKenna Road for approximately
0. 6 miles. (See following map) . This driveway is located
just north of the City corporate limits and just north of the
proposed McKenna gravel mine.
The first part of the driveway (0 .2 miles) has a substandard,
gravel base and is only 8 - 10 feet wide. The remainder of
the driveway from the first curve to the farmhouse has no
gravel and is basically wheel ruts with vegetation in the
middle. This is essentially a dead end road with no cul-de-
sac.
Public Use:
This driveway currently serves the Petsch land. there is a
vacant unoccupied house at the end of the driveway. The
abutting properties are essentially farm fields.
Extend of City Maintenance:
The City maintains the first 0 . 2 miles of the driveway (to the
first curve) . Maintenance consists of plowing the road after
each snowfall and grading it once or twice per year (more if
requested) . Every other year or so, additional gravel is
placed if needed. Weeds are mowed as needed.
Cost/Savings Resulting from Vacation:
Maintenance costs are largely dependent on the severity of
winter. Based on existing salaries and equipment costs, it is
estimated that the maintenance costs on this road ranges from
$1, 500 during an easy winter to $2 , 500 during a heavy winter.
Depending on the type of equipment used, due to the narrow
driveway, the plows must sometimes back out of the driveway.
Status of Easements:
In researching this driveway, it appears that Petsch obtained
a private easement from McKenna/Shutrop to have access to his
landlocked parcel. Shortly after that (in 1960) the township
designated the first section of the driveway as a township
road and assumed maintenance. From the first curve to the
home is a private driveway.
If the City were to vacate this road, the easement will revert
back to Petsch, since that is where it was taken over from by
the governing body. Hence, Petsch would still have access
rights to McKenna Road, only the maintenance of the driveway
would not be the City' s.
Landlocked parcels:
None, based on the above discussion.
Comprehensive Plan:
This area is currently in the R-1, Rural Residential zone and
is basically in an agricultural area. This area will probably
remain rural in nature for many years.
The Comprehensive Plan does not identify the need for a future
City street in this are. As the area develops, City streets
can be secured through the platting process.
ALTERNATIVES:
1. Vacate the road.
2 . Stop maintenance and close the road.
3 . Do nothing.
RECOMMENDATIONS:
Staff recommends vacating this road. Staff feels that this is
basically a driveway and questions the public purpose and expending
the maintenance dollars. By vacating it, the easement rights
revert back to Petsch, thereby avoiding landlocking the property.
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PLANNING COMMISSION RECOMMENDATION:
Per Minnesota Statute 462 . 356, the Planning Commission must first
review any proposed vacations to make sure it is not in conflict
with the City' s Comprehensive Plan.
In Staff' s report to the Planning Commission, it was pointed out
that none of the 3 cartways are shown as future streets in the
City' s Comprehensive Plan. There is inadequate right-of-way to
construct a street to minimum City standards. Planning staff feels
that any future streets needed in this area could be obtained as
development occurs (i.e. platting) . The current maintenance by the
City may benefit the adjacent property owners, but currently
provides minimal public service.
The Planning Commission spent a considerable amount of time
discussing these cartways and obtaining testimony from the public.
At the conclusion of the discussion, the Planning Commission voted
to oppose any vacations that would create landlocked parcels.
FINAL SUMMARY AND RECOMMENDATIONS:
Staff seriously questions the public purpose of those roads and
questions the expenditure of public funds to maintain them. But
based on the additional deed research done, it appears that
vacating all 3 of them is not the best alternative legally.
By all outward appearances, those roads are driveways. There are
no other such situations in Shakopee where the City is maintaining
such woefully, substandard roads.
Unfortunately, the issues are somewhat more complex, as previously
discussed. Staff recommends the following:
1. Do not vacate the Mielke driveway, but instead add it to
the City' s 5 Year C. I.P. for potential future upgrade.
2 . Abandon the Breeggemann driveway by installing a "Road
Closed" sign at the entrance.
3 . Vacate the Petsch driveway. It should be noted that it
would take a 4/5 vote for Council to pass this action.
ACTION REQUESTED:
1. Move to deny the request to vacate the Mielke driveway and
direct staff to add this road to the City' s 5 Year C. I . P. for
future upgrade. (Some thought should be given to officially
naming this street also. )
2 . Direct staff to abandon the Breeggemann driveway by installing
a "Road Closed" sign at its entrance.
3 . Vacate the Petsch driveway by offering the attached Resolution
No. 3481 and move its adoption.
RESOLUTION NO. 3481
A RESOLUTION VACATING THAT PART OF A CARTWAY,
COMMONLY REFERRED TO AS THE PETSCH'S DRIVEWAY,
LOCATED EAST OF MCKENNA ROAD, ALONG A LINE BETWEEN
SECTIONS 15 AND 22 , RANGE 22, TOWNSHIP 115,
SCOTT COUNTY, MINNESOTA
WHEREAS , it has been made to appear to the Shakopee City
Council that the . 2 miles of cartway, commonly referred to as the
Petsch' s Driveway, located east of McKenna Road and described as
follows:
The south 1 Rod of the SW 1/4 of the SE 1/4 of Section
15, Township 115 Range 22 and the north 18 1/2 feet of
the NW 1/4 of the NE 1/4 of Section 29 , Township 115
Range 22 .
no longer serves any public interest or use save and except for the
installation and maintenance of public utilities; and
WHEREAS, a public hearing to consider said vacation was held
in the Council Chambers of the City Hall in the City of Shakopee at
7 : 30 P.M. on the 15th of October, 1991; and
WHEREAS, two weeks published notice has been given in the
SHAKOPEE VALLEY NEWS and posted notice has been given by posting
such notice on the bulletin board on the main floor of the Scott
County Courthouse, the bulletin board at the U.S . Post Office, the
bulletin board at the Shakopee Public Library, and on the bulletin
board in the Shakopee City Hall ; and
WHEREAS , all persons desiring to be heard on the matter were
heard at the public hearing in the Council Chambers in the City of
Shakopee; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SHAKOPEE, MINNESOTA:
1. ) That it finds and determines that the vacation
hereinafter described is in the public interest and
serves no further public need as a street;
2 . ) That all that part of the Petsch' s Driveway lying east of
McKenna Road, along a line between Sections 15 and 22 ,
Range 22 , Township 115, Scott County, Minnesota, be, and.
the same hereby is vacated;
3 . ) That the City reserves, however, to the City of Shakopee,
its licensees and franchise holders a perpetual easement
on, under, and over the said vacated street for utilities
with the right to install, maintain, repair, lay and
relay the utilities by the City, its licensees and
franchise holders; and
4 . ) After the adoption of the Resolution, the City Clerk
shall file certified copies hereof with the County
Auditor and County Recorder of Scott County.
Adopted in regular session of the City Council of the City of
Shakopee, Minnesota, held this 15th day of October, 1991.
Mayor of the City of Shakopee
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
1983 ACTION
CITY OF SHAKOPEE
INCORPORATED 1870
129 E. First Ave. - Shakopee, Minnesota 55379.1376 (612) 445.3650
November 10 , 1983 .?•, ;
Mr. Peter Breeggemann
615 Sommerville
Shakopee , MN 55379
Mr. Eugene Hauer
2088 Hauer Trail
Shakopee, MN 55379
Dear Sirs :
On September 20, 1983 the City Council of the City of Shakopee
Minnesota discussed maintenance of the cartways serving your pro-
perty and other cartways in rural Shakopee .
As a result of that discussion, City Council agreed to con-
tinue the maintenance of all cartways now maintained by the City,
provided they met specific conditions established by the City
Council . The conditions are as follows :
1 . Maintenance will continue as long as the property is
owned by the immediate property owner and heirs , but
no assigns .
2 . Maintenance will be performed only on public right-of-
way . The public right-of-way must be 50.00 feet wide .
The cartways serving your parcel is a private easement and
has not been dedicated to the public. The City must cease all
maintenance of that roadway until a public dedication of right-of-
way, including a turn around, is made. The minimum width of
right-of-way required by City ordinance is 50 feet . In order
to continue maintenance of the cartway serving your property,
a 50 foot public road easement must be dedicated along the present
road alignment .
Should you have any questions regarding the requirements
specified and approved by City Council , or if you have any
questions about the easement dedication, contact me at 445-3650.
The City Engineer will contact you to discuss how you want the
additional right-of-way dedicated .
Sincerely ,
z,V` , it 157l"N-.----_
John K. A'nderson
- City Administrator
JKA/jms
cc : Charles 7Bdirnhdge•n.t r t o 1 Bd' Spuairi.e r CilE.y: E//guneer
IDS Karkanen, Public Works Director
Scott l a nd An Equal Opportunity Employer
1983 ACTION eggra
CITY OF SHAKOPEE
,
INCORPORATED 1870 ' 401 :4
129 E. First Ave. • Shakopee, Minnesota 55379-1376 (612) 445-3650 KOt
November 10 , 1983 ` ' 1
Mr. Clarence R. Petsch
RFD 2
Jordan, MN 55352
Dear Mr. Petsch:
On September 20 , 1983 the City Council of the City of Shakopee
Minnesota discussed maintenance of the cartways serving your pro-
perty and other cartways in rural Shakopee.
As a result of that discussion, City Council agreed to con-
tinue the maintenance of all cartways now maintained by the City,
provided they met specific conditions established by the City
Council . The conditions are as follows :
1 . Maintenance will continue as long as the property is
owned by the immediate property owner and heirs , but
no assigns .
2 . Maintenance will be performed only on public right-of-
way. The public right-of-way must be 50.00 feet wide.
The cartways serving your parcel is 35 .00 feet wide. The
City must cease all maintenance of- that roadway until a public
dedication of right-of-way, including turn around, is made. The
minimum width of right-of-way required by City ordinance is 50
feet . In order to continue maintenance of the cartway serving
your property, an additional 15 .00 feet of public road easement
must be dedicated along the present road alignment .
Should you have any questions regarding the requirements
specified and approved by City Council , or if you have any
questions about the easement dedication, contact me at 445-3650.
The City Engineer will contact you to discuss how you want the
additional right-of-way dedicated.
Sincerely ,
John K. Anderson
City Administrator
JKA/jms
cc : Bo Spurrier , City Engineer
6.„J4fn Karkanen , Public Works Director
Harold Araenndi ; .t r 1 / P r It r c : _ l 'Ale !,
George Shutrop
An Equal Opportunity Employer
1983 ACTION
CITY OF SHAKOPEE rid°
INCORPORATED 1870
129 E. First Ave. • Shakopee, Minnesota 55379-1376 (612) 445-3650 i% KU\�
November 4, 1983 - ''(z
rr
Mr. Eugene Mielke
2706 County Road 42
Shakopee , MN 55379
Mr. Peter Stemmer
2704 County Road 42
Shakopee , MN 55379
Dear Sirs :
On September 20, 1983 the City Council of the City of Shakopee ,
Minnesota discussed maintenance of the cartways serving your pro-
perty and other cartways in rural Shakopee .
As a result of that discussion, City Council agrees to continue
the maintenance of all cartways now maintained by the City, provided
they met specific conditions established by the City Council . (This
cartway designation does not include that private portion of your
drive from the wye to your house . ) The conditions are as follows :
1 . Maintenance will continue as long as the property is
owned by the immediate property owner and heirs , but
no assigns .
2 . Maintenance will be performed only on public right-of
way.
The cartways serving your parcel is a private easement and
has not been dedicated to the public. The City must now cease
all maintenance of that roadway until a public dedication of
right-of-way is made. The minimum width of right-of-way required
by City ordinance is 50 feet . In order to continue maintenance
of the cartway serving your property, a 50 foot public road ease-
ment must be dedicated along the present road alignment .
In the past , the City has maintained your driveway up to
your farm yard because there was no turn around. Now that there
is a turn around at the wye , the City will limit plowing and
maintenance to that 1 ,320 feet of wye drive between the wye and
County Road 42 .
T 1t II earll o / Pro a r c s _ V a / / ' tl
An Equal Opportunity Employer
Mr. Eugene Mielke/Mr. Peter Stemmer
Page Two
November 4 , 1983
Should you have any questions regarding the requirements
specified and approved by City Council , or if you have any
questions about the easement dedication, contact me at 445-3650 .
The City Engineer will contact you to discuss how you want the
additional right-of-way dedicated.
Sincerely,
7"‹ f
/ John K. Anderson
City Administrator
JKA/jms
cc : Bo Spurrier, City Engineer
Karkanen, Public Works Director
Norbert Theis
Martin Theis
Sioux Community Proposal
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DRAWING NO.1
/ -
RESOLUTION NO. 3481
A RESOLUTION VACATING THAT PART OF A CARTWAY,
COMMONLY REFERRED TO AS THE PETSCH' S DRIVEWAY,
LOCATED EAST OF MCKENNA ROAD, ALONG A LINE BETWEEN
SECTIONS 15 AND 22, RANGE 22, TOWNSHIP 115,
SCOTT COUNTY, MINNESOTA
WHEREAS , the City Council of Shakopee has determined to vacate
the . 2 miles of cartway east of McKenna Road, commonly referred to
as the Petsch' s Driveway;
WHEREAS, a public hearing was held on October 15, 1991 before
the City Council in the City Hall after due published and posted
notice had been given by the Clerk on September 20, 1991, a
reasonable attempt was made to give notice to all affected property
owners, and all persons interested were given an opportunity to be
heard;
WHEREAS , it appears that it will be in the best interest of
the City to vacate such street and that the cartway no longer
serves any public interest or use, save and except for the
installation and maintenance of public utilities;
WHEREAS , any person, corporation or City owning or controlling
easements contained upon the property vacated, reserves the right
to continue maintaining the same or to enter upon such way or
portion thereof vacated to maintain, repair, replace, remove or
otherwise attend thereto;
WHEREAS , four-fifths of all members of the City Council concur
in this resolution;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City
of Shakopee, Minnesota:
1. That it finds and determines that the vacation
hereinafter described is in the public interest and
serves no further public need as a street;
2 . That the cartway described as follows is hereby vacated:
The south 1 Rod of the SW 1/4 of the SE 1/4 of
Section 15 , Township 115, Range 22 and the
north 18 1/2 feet of the NW 1/4 of the NE 1/4
of Section 29 , Township 115, Range 22 .
3 . That the City reserves, however, to the City of Shakopee,
its licensees and franchise holders a perpetual easement
on, under, and over the said vacated street for utilities
with the right to install, maintain, repair, lay and
relay the utilities by the City, its licensees and
franchise holders;
Adopted by the Council this 15th day of October, 1991.
Approved:
Mayor
Attest:
Clerk
ONSENT
MEMO TO: Dennis Kraft, City Administrator
FROM: Terrie Sandbeck, Assistant City Planner
RE: Ordinance Amendment to correct grammatical errors in the
list of Permitted Uses within the Highway Business (B-1)
District
DATE: October 15, 1991
INTRODUCTION:
The Shakopee Zoning Ordinance currently lists motor homes as a
Permitted Use within the Highway Business (B-1) Zoning District.
This is the result of an error in copying and updating the Zoning
Ordinance that was adopted by the City on April 1, 1978 .
BACKGROUND:
Attached is a copy of the Permitted Uses within the B-1 Zoning
District from the Shakopee Zoning Ordinance that was in effect
between April 1, 1966, and April 1, 1978 . (See Appendix A. ) At
that time, the B-1 District was titled the "Thoroughfare Business
District" . Section 11. 1 (1) of this Ordinance listed "Motels,
motor hotels, and hotels" as permitted uses within this zone.
However, that same portion of the Ordinance that was adopted on
April 1, 1978, lists "Motels, motor homes, and hotels" as permitted
uses. (See Appendix B. )
PLANNING COMMISSION RECOMMENDATION:
To avoid confusion and clarify the intent of the Ordinance, the
Planning Commission recommends that the Ordinance be amended to
correct grammatical errors, and that the Permitted Uses within the
Highway Business District be amended to change "motor homes" back
to "motor hotels" .
ALTERNATIVES:
1. Adopt the proposed Ordinance Amendment correcting grammatical
errors in the list of Permitted Uses within the Highway
Business District (B-1) .
2 . Deny the proposed Ordinance Amendment correcting grammatical
errors in the list of Permitted Uses within the Highway
Business District (B-1) .
ACTION REQUESTED:
Offer Ordinance Amendment No. 320, amending City Code Chapter 11,
Land Use Regulation (Zoning) , by Repealing Section 11. 29, Highway
Business (B-1) , Subd. 2 , Permitted Uses, and Enacting One New
Subdivision in Lieu Thereof Relating to the Same Subject, and move
for its adoption.
Ech.I b 4- H
SECTION 11 i "B-1")THOROUGHFARE BUSINESS DISTRICT PAGE 7
Section 11.1 Permitted Uses CH. 10.1
Within the "B-1" Thoroughfare Business Use District, no struc-
ture or land shall be used except for one (1) or more of the following
uses; in areas sery•• • . • •1' sewerage system.
it11.1 (1) Motels, motor hot:Bland hotels provided the site shall
contain not less tha• our •un•red (400) square feet of lot area per
unit.
11.1 (2) Drive-in businesses as regulated in Section 19.2.
11.1 (3) Seasonal produce stands.
11.1 (4) Motor fuel stations subject to the regulations of Section
19.1.
11.1 (5) Nursery and garden supply stores.
11.1 (6) Commercial recreation including bowling alleys, jump
centers, golf driving ranges, miniature golf, skating, and swimming
pools. „pert II
J 11.1 ('7) Restaurants, cafes, taverns and liquor stores. D
11.1 (8) Car wash,provided off-street parking space is constructed DIST.
to accommodate that number of vehicles which can be washed during t�
a maximum fifteen (15) minute period. �-- 1 . ,
Section 11.2 Conditional Uses as prescribed by Council Resolution. V�-
I Section 11.3 Accessory Uses
f Within the "R-1" Thoroughfare Business District, the following
uses shall be permitted accessory uses:
11.3 (1) Any incidental repair or processing necessary to con-
duct a permitted principal use.
11.3 (2) Private garages, off-street parking and loading spaces
as regulated in this Ordinance.
• 11.3 (3) Signs appurtenant to_any permitted use, as regulated
in Usk e. 'S i IN) C1 . c�.-..c_P
11.3 (4) Buildings temporarily located for purposes of construc-
tion on the premises for a period not to exceed time necessary to
complete said construction.
11.3 (5) Decorative landscape features.
113 (6) Public telephone booths provided all yard requirements
are met.
11.3 (7) Dwellings when combined with a permitted principal
use and not occupying the first floor.
11.3 (8) Other accessory uses and structures customarily appurt-
enant to a permitted use, such as incidental storage facilities.
Section 11.4 Lot Area, Lot Width, Height and Yard Requirements
Within the "B-1" Thoroughfare Business District, the following
minimum lot area, lot width and yard requirements and maximum
height limitations shall apply subject to the additional requirements,
exceptjons and modifications as set forth in this Section, Section 18,
and Section 19. .. - -. •
Height-2 stories or 25' - - • . . . -
Lot Area-9,000 sq. ft. :- _ -
Lot Width-60 ft. vt, .. •
Front Yard-30 ftp;,/
Side Yards-10' o 20'.when ffbutting the "R"Residential District.
Rear Yard-10' in uding i of alley width, or 20' when abutting
the "R" Residential Dist -- -
_____________ ' SECTION 12 "B-2" NEIGHBORHOOD BUSINESS DISTRICT_
Section 12.1 Purpose
To provide a center for convenience shopping in a residents "B_2"
neighborhood. New "B-2" Districts shall have a minimum area of
two(2)acres in Locations where analysis of residential population dem DIST.
onstrates that such facilities are required.
Section 12.2 Application
The owner or owners of any tract of land in the "B-2" Neighbor-
hood Business District may submit to the Council a plan for the use
,_, U/p`I: and development of all or part of such tract subject to the require-
ments set forth in this Section. The proposed plan shall be referred
to the Planning Commission for study and report. The Planning
- Commission shall transmit to the Council their findings and recom-
mendations for consideration and action. •
Section 12.3 Permitted Uses
Within the "B-2" Neighborhood Business District. so structure
or land shall be used except for one or more of the following neigh-
borhood retail sales and service business uses supplying commodities
or performing a service primarily for residents of the surrounding
neighborhood, and in an area served by a public sewerage system.
t, li -.r.•,-- =';;- le ... L ••-• -, - . . . . .
f)
1-
Sou : Shakopee Zo n;n Orel i!X111 GE- '
41/1/Gt. +0 4/// /7g •
Cxhi bi 4 13 1
SEC . 11 . 28. 13-1 - THOROUGHFARE BUSINESS DISTRICT.
IPermitted Uses Conditional Uses
1. Motels ,(Motor Homes) Hotels 1. Mobile Home Parks .
's r- 2 . Public or Quasi-Public
(Lot must have 400 sq. ft.
per unit) Uses for needs of Tra-
2 . Drive-in Businesses . veling Public.
3 . Seasonal Produce Stands . 3 . Animal Hospitals and
4. Nursery and Garden Supply Stores . Veterinary Clinics .
5 . Commercial Recreation 4. Private Clubs and Lodges .
6 . Restaurants , Cafes , Taverns , 5 . Open Sale Lots .
Liquor Stores . 6 . Historical Buildings ,
7 . Car Wash. Museums .
8 . Auto Sales , Services and 7 . Art Institutes .
Repairs . 8. Funeral Homes .
9 . Wholesale Businesses . 9. Play Houses .
10. Home and Trailer Sales . 10 . Multiple Dwellings .
11. Parking Lots . 11. Supply Yards .
12 . Public Buildings .
13 . Public Utility Buildings .
14 . Offices and Banks .
15 . Retail Businesses .
16 . Motor Fuel Stations .
_ i Accessory Uses
11
Permitted Conditional ; i
ii
1. Any incidental repair or pro- 1. Dwellings when combined
cessing necessary to conduct a with a permitted use ,
11
permitted principal use . - not on first floor. 3i
2. Private Garages , Off-Street
Parking, Loading Spaces . ;
3 . Temporary construction buildings . i
4. Decorative landscape features . !
•
5 . Public telephone booths .
6 . Other accessory uses customarily ;
appurtenant to a permitted use .
Height and Yard Requirements
1. No building shall exceed 2 stories or 25 feet. : i
: f
! i
i
is
i
j Ste: C� ofSe
,pt
1-andd use 12sul .WonS (zon;r ) 4-1-78
T/I/-ry it, 1%.5/-79 -292-
ORDINANCE NO. 320, FOURTH SERIES
AN ORDINANCE OF THE CITY OF SHAKOPEE, MINNESOTA, AMENDING CITY
CODE CHAPTER 11, LAND USE REGULATION (ZONING) , BY REPEALING SEC.
11. 29 , HIGHWAY BUSINESS (B-1) , SUBD. 2 , PERMITTED USES, AND
ENACTING ONE NEW SUBDIVISION IN LIEU THEREOF RELATING TO THE SAME
SUBJECT.
THE CITY COUNCIL OF THE CITY OF SHAKOPEE, MINNESOTA, ORDAINS:
Section 1 - That City Code Chapter 11, Land Use Regulation
(Zoning) , Sec. 11.29, Highway Business (B-1) , is hereby amended
by repealing Subd. 2 , Permitted Uses, and enacting one new
subdivision in lieu thereof, which shall read as follows:
Subd. 2 . Permitted Uses. Within any Highway Business District,
no structure or land shall be used except for one or
more of the following uses:
A. Motels, motor hotels [homes] , hotels (lot must have 400
square feet per unit) .
B. Drive-in retail business.
C. (Repealed by Ordinance No. 158 , 4th Series, adopted
1-22-85. )
D. Churches.
E. Restaurants, Class I.
F. Retail business.
G. Liquor stores.
H. Essential services.
I. Offices and banks.
J. Car washes.
K. Service establishments.
L. Auto sales, service[s] and repair[s] businesses.
M. Wholesale businesses.
N. Class II day care facilities when located in the home
of the day care provider.
Note: The bracketed language [thus] is deleted; the underlined
language is inserted.
Section 2 - General Provisions. City Code Chapter 1,
General Provisions and Definitions Applicable to the Entire City
Code Including Penalty For Violation, and Section 11. 99,
Violation a Misdemeanor, are hereby adopted in their entirety by
reference, as though repeated verbatim herein.
Section 3 - Effective Date. This ordinance becomes
effective from and after its passage and publication.
Passed in session of the City Council
of the City of Shakopee, Minnesota, held this day of
, 1991.
Mayor of the City of Shakopee
Attest: City Clerk
Approved as to form: City Attorney
Published in the Shakopee Valley News on the day of
, 1991.
[11. 28]
-2-
MEMORANDUM /a 0, .
TO: Mayor and Members of City Council
FROM: Karen Marty, City Attorney
DATE: October 11, 1991
RE: Reconsideration of Past Actions
At the October 1, 1991, City Council meeting, the Council
requested information on a series of related questions dealing
with reconsideration of Jack Brambilla ' s requests for rezoning or
adoption of an amendment to the zoning ordinance. These
questions are discussed below.
1. Can a motion to reconsider be made at this time,
relating to either the rezoning or ordinance amendment request?
No. Under Robert' s Rules of Order (1990 ed. ) , a motion to
reconsider "enables a majority in an assembly, within a limited
time and without notice, to bring back for further consideration
a motion which has already been voted on. " (Sec. 36) A motion
to reconsider is done without notice, at the same meeting as the
original action. Paragraph (b) specifically limits these motions
to being made on the date of the meeting.
The making of this motion is subject to time limits, as
follows: In a session of one day - such as an ordinary
meeting of a club or a one-day convention - the motion to
reconsider can be made only on the same day the vote to be
reconsidered was taken. In a convention or session of more
than one day, a reconsideration can be moved only on the
same or the next succeeding day after the original vote was
taken (not counting a legal holiday, weekend, or other
single day on which no business meeting is held) . These
time limitations do not apply to standing or special
committees.
Robert ' s Rules therefore prohibits reconsideration of a motion
voted on at a previous meeting. If the City Council holds a two-
day meeting, then the motion could be made on the second day
relating to action taken on the first day. This section does not
authorize reconsideration of a motion acted on at a meeting two
weeks previously, even if the later meeting is an "adjourned"
continuation of the first meeting.
2 . Can the City Council suspend its rules to take up the
issue again?
Yes, if there is no conflict with state and local law.
Under Robert' s Rules, a motion to suspend the rules is sometimes
appropriate.
When an assembly wishes to do something that it cannot do
without violating one or more of its regular rules, it can
adopt a motion to Suspend the Rules interfering with the
proposed action - provided that the proposal is not in
conflict with the organization' s bylaws (or constitution) ,
local, state, or national law, or the fundamental principles
of parliamentary law.
(Sec. 25) Suspension of the rules is allowed, except when the
action proposed would violate local or state law. In Chanhassen
Estates Residents v. City of Chanhassen, 342 N.W. 2d 335 (Minn.
1984) , the Minnesota Supreme Court reviewed a motion to
reconsider which was made one month after the initial action.
The Court questioned the motion, but noted that the city council
had the authority to waive the rules of procedure by a 4/5 vote
of the council .
A. Does state law prohibit reconsideration of the
amendment? Maybe. Under Minn. Stat. Sec. 462 . 357 , Subd. 3 , and
City Code Sec. 11. 04 , notice and a public hearing is required
prior to adopting an amendment to the zoning ordinance. For each
of Mr. Brambilla ' s requested actions, the City provided proper
notice and public hearings. The question thus arises whether the
previous notice and public hearings can be relied upon in a new
reconsideration of the same issues. A review of case law
indicates that our courts have not decided this question. In the
Chanhassen case, the opponents to the issue were given new notice
prior to the reconsideration. It could be argued that the
matters were voted down, and therefore any new consideration is a
new issue needs new notice and hearing. On the other hand, it
could be argued that this is the same issue revisited, and since
concerned citizens very recently had the opportunity to be heard,
new notices and public hearings are unnecessary.
B. Does local law, other than that discussed in paragraph A
above, prohibit reconsideration of the amendment? Yes, unless
certain requirements are met. City Code Sec. 11. 04 , Subd. 7 .J
prohibits reconsideration of any amendment for six months, unless
the Planning Commission feels new evidence has been discovered.
Any amendment which is denied wholly or in part by the
Council shall not be resubmitted for a period of six (6)
months from the date of said order of denial, except on
grounds of new evidence or proof of change of conditions
found to be valid by the Planning Commission.
Prior to reconsideration of any particular rezoning or amendment
of the zoning ordinance, either six months ' time must pass, or
the Planning Commission must accept as valid a claim that new
evidence has been found. The "new evidence" or "change of
conditions" presented so far consists of a petition and letter;
Planning Commission could be asked to determine whether it finds
these to be valid.
2
3 . Can the City Council simply undo what it did previously?
Yes. A motion to rescind or to amend something previously
adopted is allowed under Robert' s Rules of Order. (Sec. 34)
Unlike the motion to reconsider, these are not limited in time.
" [T]here is no time limit on making these motions after the
adoption of the measure to which they are applied, and they
can be moved by any member, regardless of how he voted on
the original question. "
If the City Council desired, it could rescind or amend its
previous denials. The City Council also can rescind and expunge
from the minutes its previous action. Arguably, once the
previous action is rescinded or amended, the original motion
again is before the Council. This would avoid the six-month
prohibition set forth in paragraph 2 .B above. However, the
concerns set out in paragraph 2 .A above relating to notice and
public hearing would remain.
4 . If the City Council does not take any of the above
actions, can the request for an amendment be raised again before
six months is over?
Yes, if modified. City Code Sec. 11. 04 , Subd. 7 .J prohibits
reconsideration within six months of any amendment which is
denied wholly or in part. It does not prohibit consideration of
any other amendments. If Mr. Brambilla were to come forward with
a new request for a zoning map amendment, or a zoning ordinance
amendment, the City Council could consider it without waiting the
six months, and without the need for Planning Commission to
review the validity of the new evidence or proof of change.
If you have questions regarding this, please let me know.
Signed , A074_ 11 /"41 L`,
Karen Marty, Ci y •ttorney
KEM:bj m
[BRAMB]
cc: Dennis Kraft
Lindberg Ekola
3
MEMO TO: Honorable Mayor and Council
FROM: Dennis R. Kraft, City Administrator
RE: Reconsideration of Zoning Ordinance Amendment
DATE: October 11 , 1991
INTRODUCTION\BACKGROUND:
At the Council meeting of October 1st the City Council directed the
City Attorney to research the question of whether the Council has
the authority to suspend Robert' s Rules and reconsider an earlier
vote on amending the zoning ordinance in such a manner as to allow
the sale of motor homes as a conditionally permitted use in the I-2
zone. (This item was considered by the City Council and the
Planning Commission in conjunction with a request made by Mr. Jack
Brambilla to relocate his business from downtown Shakopee to a
parcel of land in the I-2 district immediately south of
Valleyfair. )
Mayor Laurent and I met with Jack and Doris Brambilla and their
attorney, Rod Krass and discussed this item on October 11th. Mr.
Krass indicated that he would like the City Council to reconsider
the suspension of Robert' s Rules and to subsequently reconsider the
amending of the I-2 district as described above. Mr. Krass and the
Brambilla' s both recognize that a 75% affirmative vote (at least 5
of 6 Councilmembers) must vote in the affirmative in order to amend
the zoning ordinance. A simple majority vote would be required for
the City Council to suspend Robert' s Rules. Mr. Krass further
indicated that the reason he will appear before the City Council at
this time is to deal with this question with a degree of finality
so that Mr. Brambilla can proceed with his plans to relocate his
business.
Attached is a memo from Police Sergeant Kaley to Chief Steininger
relating to the impact of traffic flow on the public safety for the
rezoning request as submitted by Jack and Doris Brambilla. This
information was received by the staff along with information from
many other departments and was considered prior to the drafting of
the staff memo to the City Council on the early rezoning request
(to rezone the subject property from I-2 to B-1) . This information
is specifically being submitted to the City Council at this time as
requested by Jack Brambilla. The question of traffic safety was
not an issue during the rezoning consideration and came before the
Council at a much later date (October 1, 1991) during which time
the conditional use permit amendment question was before the City
Council .
ALTERNATIVES:
1. Suspend the rules and reconsider the amending of the I-2
district to allow the sale of recreational vehicles and motor
homes in the I-2 zoning district.
2 . Do not suspend the rules and allow for the above mentioned
reconsideration of amending the zoning ordinance.
RECOMMENDATION:
It is recommended that the City Council consider the information
contained in the City Attorney' s memo and all other relevant
information presented to them on this issue and decide whether they
desire to reconsider this item after the suspension of Robert' s
Rules. A staff recommendation is not included at this point
because this is purely a policy question to be addressed by the
City Council . In the past the Council has received staff
recommendations, recommendations from the Planning Commission and
testimony from many individuals both in favor of and opposed to the
project.
ACTION REQUESTED:
Move to suspend Robert ' s Rules and reconsider the amendment of the
zoning ordinance to allow the sale of motor homes as a
conditionally permitted use in the I-2 district.
SHAKOPEE POLICE DEPARTMENT
IN HOUSE MEMO
TO: Chief Steininger
FROM: Sgt. Kaley
DATE: July 20, 1991
SUBJECT: Rezoning requested by Jack and Doris Brambilla
Police staff were asked to review concerns for rezoning property
located at Hwy. 101 and Valley Park Drive. Jack and Doris
Brambilla have requested property that is currently zoned I-2 to be
rezoned as B-I.
The concerns of the police department are limited to traffic flow
and public safety.
After observing this area and reviewing information I do not see
any concern for traffic flow or public safety. The light traffic
flow in this area would not experience a significant increase by
rezoning to B-i as requested by Jack and Doris Brambilla.
Valloy
BUSINESS PARK
October 8 , 1991
Mr. Lindberg Ekola
CITY OF SHAKOPEE
129 East First Avenue
Shakopee, MN 55379
Re : Brambilla Issue
Dear Lindberg:
I believe the enclosed letter from FMG/Tsumura dated October 2 ,
1991 is self-explanatory. Please file accordingly.
Respectfully,
VAfEY GREEN BUSINESS PARK
/
41/k-
Jon/ R.
Albinson
Pr6ject Director
JRA: jmcx-72 . 2
Enclosure
5276 Vaiiey Industrial Boulevard South • Shakopee, Minnesota 55379•Telephone: (612) 445-9286• Facimile: (612) 445-9372
FMG Ti TSUMURA
Prestige Home Fragrances and Luxury Bath Products
October 2, 1991
Mr. John Albinson
Valley Green Business Park
5276 Valley Industrial Boulevard South
Shakopee, MN 55379
Dear John:
Mr. Bill Henning was at our Shakopee facility on Monday,9/30/91 asking us to sign
a petition to relocate the Brambilla Motor Homes to the Industrial Park.
I have informed him that I will not sign this petition, and that we at Tsumura International
oppose such an installation.
Best : • !ards/
Ron Whi. ►-rman
Senior 'ce President-
Operations
RW/jm
12800 WHITEWATER DRIVE•MINNETONKA, MN 55343•(612)945-9400•FAX(612)945-2080
DIVISION OF TSUMURA INTERNATIONAL INC.
1(21
T iy
October 15, 1991
The Hon. Gary Laurent
Mayor, City of Shakopee
129 East First Avenue
Shakopee, MN 55379
City Council Members
CITY OF SHAKOPEE
129 East First Avenue
Shakopee, MN 55379
Re: Amendment to CUP Ordinance - Brambilla
Dear Mayor Laurent and Council Members :
By this letter, we wish to clarify our positions as they may relate
to the ongoing, above-referenced process .
On August 8, the Planning Commission for the City of Shakopee held
a public hearing for Jack Brambilla' s requested rezoning of a
parcel of land located at the corner of Valley Park Drive and
Highway 101 . The Planning Commission accepted testimony from
interested citizens and weighed the merits of the rezoning request
based on the philosophies of sound land use planning, the
Comprehensive Plan and other issues pertinent to the request.
Staff ' s memo of August 8 to the Planning Commission suggested that
denial of this rezoning would be appropriate. The Planning
Commission agreed with Staff and recommended denial to the City
Council . On August 20, the City Council addressed this rezoning
issue, taking into consideration Staff ' s recommendation, the
Planning Commission' s recommendation and additional testimony given
by us and other interested parties . City Council, based on the
information provided and after a thorough discussion of good land
use practices, concurred with the Planning Commission and voted for
denial of the rezoning request. Additionally, Council directed
Staff to look at opportunities for amending the Conditional Use
Permit (CUP) Ordinance to address the Petitioner' s needs .
On September 5, the Planning Commission addressed an amendment to
the CUP ordinance which would create the opportunity for Mr.
Brambilla to do business under a CUP in the I-2 zone. Staff ' s
report to the Planning Commission included a draft of an ordinance
Mayor Gary Laurent
City Council Members
Page Two
October 15, 1991
that could have served the needs of Mr. Brambilla. It detailed the
various land use issues which should be discussed by the Planning
Commission in making its determination if an amendment to the CUP
Ordinance was appropriate. The Staff provided the Planning
Commission with as much information as possible to make a decision
on the merits of amending the ordinance. Once again, Staff ' s
recommendation was for denial. Planning Commission accepted
testimony from the general public, including us . We presented the
land use issues and suggested that the amendment to the ordinance
was not in the best interest of the City as a whole. Also, we
suggested modifications to the proposed ordinance that we think
would have improved the ordinance in ways that would clarify areas
left open for misinterpretation by future CUP applicants wishing to
use this ordinance, while at the same time establishing an amended
ordinance which would be far more acceptable to the community than
the draft presented to the Planning Commission. After thorough
discussion of all the issues, the Planning Commission voted to
recommend denial of the amended CUP Ordinance.
On September 17, the City Council addressed the issue of the
amendment to the CUP Ordinance. At that meeting, the Staff ' s
recommendation for denial, the Planning Commissions ' recommendation
for denial and the testimony presented by a variety of individuals,
of which we were one, was taken into consideration. Our
presentation to the Council was almost identical to that which was
presented to the Planning Commission on September 5 . Again we
presented logical reasons for denial of this ordinance amendment
and also suggested ways we believed the draft of the ordinance
could be improved if the Council chose to pass this ordinance. We
believe the decision of the Council is in the long term best
interests of the City.
On October 1, the City Council was approached by the attorney for
Mr. Brambilla with a request that the Council reconsider its
September 17 action denying the amendment to the CUP Ordinance.
During the hearing it was suggested there was pertinent information
to warrant Council ' s reconsideration of this issue. One of those
items was the suggestion we made representations that Mr. Brambilla
could purchase land owned by Valley Green Business Park and that he
would have no difficulty with rezoning, variance or CUP
requirements if he were to purchase our land. No such
representations were made by us . On the contrary, we told Mr.
Brambilla that his efforts to locate his retail business on any I-2
zoned land would be extremely difficult because of the zoning. Mr.
Brambilla said this would not be a problem because the City owed
him and he would be taken care of.
0:
Mayor Gary Laurent
City Council Members
Page 3
October 15, 1991
A letter from us to Mr. Brambilla dated June 12 , 1991, also was
placed in the hearing record. This letter was presented to support
the alleged representations by us to Mr. Brambilla. This letter is
taken out of context. It was written after we met with Mr.
Brambilla and told him that we thought he would not succeed with
his rezoning. He said he could. We wished him luck. We also
tried to find him other suitably zoned properties, including a
possible combination of an existing B-1 parcel for his sales and an
I-2 parcel for his servicing. It is in this context that we made
the offer in the letter to help with the City.
We thank you for the opportunity to place this information in the
public record. We would have preferred to be able to handle this
testimony in person, but were unable to do so due to conflicts in
schedules .
Respectfully,
VALLEY GREEN BUSINESS PARK
6
on R. Albinson
Project Director
JRA: jmcx-77
cc : Dennis Kraft
/,
2 . Do not suspend the rules and allow for the above mentioned
reconsideration of amending the zoning ordinance.
RECOMMENDATION:
It is recommended that the City Council consider the information
contained in the City Attorney' s memo and all other relevant
information presented to them on this issue and decide whether they
desire to reconsider this item after the suspension of Robert' s
Rules. A staff recommendation is not included at this point
because this is purely a policy question to be addressed by the
City Council . In the past the Council has received staff
recommendations, recommendations from the Planning Commission and
testimony from many individuals both in favor of and opposed to the
project.
ACTION REQUESTED:
Move to suspend Robert' s Rules and recon
zoning ordinance to allow the sale of motor homes as a
conditionally permitted use in the I-2 district.
1) MOVE TO RESCIND THE ACTION OF SEPTEMBER 17 , 1991 TO DEFEAT
ORDINANCE NO. 319 , WHICH ORDINANCE ADDS CONDITIONAL USES IN
THE I-2 ZONE.
2) OFFER ORDINANCE NO. 319 , TO ADD CONDITIONAL USES IN THE I-2
ZONE.
��- b.
MEMO TO: Dennis R. Kraft, City Administrator
FROM: Barry A. Stock, Assistant City Administrator
RE: Early Retirement Policy - Resolution No. 3483
DATE: October 10, 1991
INTRODUCTION:
On October 8, 1991, the Shakopee City Council met in a
Committee of the Whole meeting to discuss a proposed Early
Retirement Policy. At that time, the Committee of the Whole moved
to have the Early Retirement Policy placed on the next agenda of
the City Council.
BACKGROUND:
Attached is Resolution No. 3483 , A Resolution of the City of
Shakopee Adopting an Early Retirement Policy. Several minor
changes have been made to the Resolution since the Committee of the
Whole meeting. New language that has been added to the Resolution
is underlined. Language which is proposed for deletion has a
dashed line through it.
Staff is in the process of meeting with each of the employees
that are eligible for the Early Retirement Incentive Program.
Unfortunately, at the time the Council packet was assembled we do
not have a clear indication of how many persons would be interested
in the program. At the Council meeting on October 15, 1991, staff
will be prepared to present more concrete data on which employees
intend to take advantage of the Early Retirement Policy. Staff
will also prepare a cost benefit analysis to illustrate the impact
of the Early Retirement Incentive Program on the 1992 budget.
ALTERNATIVES:
1. Offer Resolution No. 3483 , A Resolution of the City of
Shakopee Adopting an Early Retirement Policy for the City of
Shakopee.
2 . Make amendments to Resolution No. 3483 and offer the
resolution as amended.
3 . Do not adopt a Early Retirement Policy for the City of
Shakopee in 1991.
4 . Table action pending further information from staff.
STAFF RECOMMENDATION:
Staff recommends Alternative #1.
ACTION REQUESTED:
Move to offer Resolution No. 3483 , A Resolution of the City of
Shakopee Adopting an Early Retirement Policy.
BAS/tiv
RESOLUTION NO. 3483
A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOTA, ADOPTING AN
EARLY RETIREMENT POLICY.
WHEREAS, the City is in the process of budgeting for the
upcoming fiscal year, and has learned it may face a reduction in
work force; and
WHEREAS, the City has been approached by employees who are
interested in taking early retirement; and
WHEREAS, before the budget is finalized, the City would like
to allow employees desiring to take early retirement an option to
do so; and
WHEREAS, the City has a small number of employees, and
therefore would be crippled if a large number of employees in any
given department took early retirement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
SHAKOPEE, MINNESOTA, AS FOLLOWS:
That the an Early Retirement Policy is hereby adopted, which
shall provide as follows:
EARLY RETIREMENT.
City employees may elect early retirement, subject to the
provisions set forth below.
An employee is eligible for early retirement if (a) the
employee has worked for the City of Shakopee for at least 15
years; (b) the employee is eligible for a full or reduced pension
upon retirement; and (c) the employee shall be at least 55 years
old on or before December 31, 1991, unless the employee is a
police officer, in which instance the minimum age shall be 50 .
Such a retiring employee would receive a lump sum payment
covering the following items:
1. All accumulated unused vacation time.
2 . Up to one-third of accumulated unused sick leave, up to
a maximum of 960 hours. (Police officers 45% of 960
hours. )
3 . A percentage of the salary times years of service based
on the following formula: 1% for each of the first 15
years of service, plus an additional 0 . 2% for each year
thereafter, up to a maximum rate of 3% .
These payments for vacation, sick leave, and years of service
would all be calculated on the basis of the employee ' s current
1991 base salary or wage scale (excluding overtime) .
These benefits would be in lieu of any benefits described in
any existing personnel policy or contract. This early retirement
package must be requested accepted, in writing to the City
Administrator, by an interested employee on or before 4 : 30 p.m. ,
November 29 , 1991, with the employee retiring by December 31,
1991. A partial or conditional acceptance will not be
considered. Any employee taking early retirement shall be
required to sign appropriate documents prepared by the City
Attorney.
A maximum of two employees per department may take early
retirement. If more than two employees in the same department
request it, they shall be selected on the basis of the following:
the most highly placed (with department head being the highest
position) employees shall have priority over lower employees. If
two employees are in the same job position, the employee with the
most months of service with the City shall have priority over the
employee with fewer months.
Passed in session of the City Council
of the City of Shakopee, Minnesota, held this day of
, 1991.
Mayor of the City of Shakopee
Attest: City Clerk
Approved as to form: _ City Attorney
[EARLYRET]
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EARLY RETIREMENT BUDGET ANALYSIS
Asst. Police Chief
1992 1993 1994
Asst. Police Chief
budgeted wages & benefits $52 , 819 . 16 $52 , 819 . 16 $52 , 819 . 16
Less Retirement Package Cost (36, 082 . 13) --- ---
Less Cost of Replacement 1.
(patrolman-entry level) (21, 474 . 64) (32 , 211 . 96) (32,211.96)
2 .
Less Cost of Addn Sergeant ( 2, 400. 00) ( 4 , 056. 00) ( 4 , 056. 00)
65,,oo
Actual Budget Savings $ (7 , 137 . 61) $16, 551 . 20 $16, 551 . 20
1 . 5/1/92 Start
2 . 1/1/92 Start
3 . Wage and benefit calculations do not include
sick leave/vacation benefit differentials.
4 . The amounts depicted will increase or decrease dependent upon
when and if certain positions are filled. The retirement
package cost may also vary dependent upon the amount of sick
or vacation time logged by the Asst. Police Chief prior to
Dec. 31, 1991 .
5. Calculations do not include COLA adjustments
EARLY RETIREMENT BUDGET ANALYSIS
Building Official
1992 1993 1994
Building Official
budgeted wages & benefits $51, 176. 63 $51, 176 . 63 $51, 176. 63
Less Retirement Package Cost (15, 423 . 42) --- ---
Less Asst Inspector Wage & 1 . 2 . 3 .
Benefits (43 , 498 . 84) (46 , 057 . 39) (48 , 615. 93)
Plus Budgeted
Unemployment Exp. $ 6, 500 . 00 --- -__
Actual Budget Savings $ (1, 245. 63) $ 5, 119 . 24 $ 2 , 560. 70
1. Step 3 - Bldg. Official
2 . Step 4 - Bldg. Official
3 . Step 5 - Bldg. Official
4 . Wage and benefit calculations do not include
sick leave/vacation benefit differentials.
5. The amounts depicted will increase or decrease dependent upon
when and if certain positions are filled. The retirement
package cost may also vary dependent upon the amount of sick
or vacation time logged by the Asst. Police Chief prior to
Dec. 31 , 1991 .
6. Calculations do not include COLA adjustments
TO: Dennis R. Kraft, City Administrator
FROM: Gregg Voxland, Finance Director
RE: Assessment Against City Property
DATE: October 3, 1991
Introduction
Council has levied an assessment against City property for the Shumway
project.
Background
Council has levied an assessment against city property parcel number 27-
001454-0 in the amount of $4,622.66 for the Shumway project. Council can let the
assessment run and pay the annual installments plus interest out of the general
fund or another fund. Alternatively, Council can prepay the assessment using the
Capital Improvement Fund which is the course usually taken.
Alternatives
1. Pay the assessment over time out of the General Fund.
2. Prepay the assessment out of the Capital Improvement Fund.
Recommendation
Alternative number 2.
Action
Move to prepay the assessment for the Shumway project levied against city
owned property parcel number 27-001454-0 in the amount of $4,622,66 out of the
Capital Improvement Fund.
# lad.
CONSENT
MEMO TO: DENNIS KRAFT, CITY ADMINISTRATOR
FROM: DAVID HUTTON, PUBLIC WORKS DIRECTOR
SUBJECT: COMPREHENSIVE SEWER PLAN
DATE: OCTOBER 9, 1991
INTRODUCTION
Staff is seeking City Council authorization to execute a contract
with the consultant selected to prepare the Comprehensive Sewer
Plan, namely Short-Elliot-Hendrickson, Inc.
BACKGROUND
The proposed Shakopee Comprehensive Plan recommended that a
Comprehensive Sewer Plan be completed as a supplement to the Comp
Plan. On April 16, 1991 the City Council of Shakopee authorized
staff to seek proposals from consultants to prepare this plan.
An extensive Consultant Selection Process was completed with a
recommendation to the City Council that if a consultant were
utilizied, the consultant recommended by the Committee was
Short-Elliot-Hendrickson, Inc. (SEH) . Staff also prepared a
proposal to complete this study utilizing in-house staff and
resources.
On August 20, 1991 the City Council reviewed the recommedation of
the Selection Committee as well as discussed the option to utilize
in-house staff. At the conclusion of the discussion, the City
Council determined that this project was best suited for an outside
consultant and directed staff to negotiate a contract with SEH to
complete the project and finalize the scope of services desired.
Staff has had numerous meetings with the consultant to finalize the
desired scope of services. City departments that were involved in
this process included Engineering, Planning, Administration and
MIS. In addition a contract has been negotiated which is substan-
tially in comformance with the original proposal submitted by SEH.
Attached is the final contract for consideration by the City of
Shakopee. The City Attorney has reviewed and approved of the
language in this proposed contract.
The final contract indicates that the Scope of Services can be
completed for an estimated cost of $100, 000. The actual payments
will be based on hourly rates and actual hours worked. The
contract is requesting that maximum payment allowed without
revising the contract be $110,000, in case additional work is
desired by the City. All funds for this study will come from the
Sanitary Sewer Enterprise Fund.
ALTERNATIVES:
1. Direct the appropriate City officials to execute the contract
with Short-Elliot-Hendrickson, Inc. for completing the
Comprehensive Sewer Plan.
2 . Deny the request.
3 . Table the request in order to revise the contract per City
Coucil direction.
RECOMMENDATION:
Staff recommends Alternative No. 1.
ACTION REQUESTED:
Move to authorize the appropriate City officials to execute a
contract with Short-Elliot-Hendrickson, Inc. for the purposes of
completing a Comprehensive Sewer Plan for a not-to-exceed fee of
$110, 000, which includes a $10, 000 contingency.
AGREEMENT FOR ENGINEERING AND PLANNING SERVICES BETWEEN
THE CITY OF SHAKOPEE, MINNESOTA
AND
SHORT-ELLIOTT-HENDRICKSON, INC.
THIS AGREEMENT made as of the day of in the
year Nineteen Hundred and Ninety-One by and between the CITY of
SHAKOPEE, MINNESOTA, hereinafter called the CITY, and SHORT-ELLIOTT-
HENDRICKSON, INC. , 3535 Vadnais Center Drive, St. Paul, Minnesota,
hereinafter called SEH.
WHEREAS, CITY requires cost effective quality professional
engineering and planning services in a timely manner, and
WHEREAS, the CITY intends to retain SEH to provide professional
engineering and planning services associated with a Comprehensive
Sanitary Sewer Plan and associated reports on project feasibility, and
WHEREAS, the CITY and SEH deem it mutually advantageous to set
forth the general details herein.
NOW, THEREFORE, the CITY and SEH agree that the following shall
constitute a joint Agreement.
SECTION I - BASIC SERVICES OF SEH
A. GENERAL
1. SEH agrees to perform professional services in connection
with the Project as hereinafter stated.
2. SEH shall serve as the CITY' S professional representative
in all Engineering and Planning phases of the Project, and
shall give consultation and professional advice to the CITY
during the performance of their services.
- 1 -
B. COMPREHENSIVE SANITARY SEWER PLAN
Services performed by SEH shall include the following:
1. Establish and Document Existing Conditions
a. Add the City' s current sanitary sewer system to the
AutoCAD base map.
b. Add physical data attributes of all sanitary sewer
systems. Information will be obtained from asbuilt
drawings for all systems installed since 1974. Add
all data contained in the 1974 Sanitary Sewer Capacity
Report. This data includes:
i. Manhole numbers
ii. Manhole inverts
iii. Pipe sizes, grades, and capacities
c. Determine average and peak flows for each existing
sanitary sewer subdistrict and for all pipes over 8"
diameter.
2. Update the 1982 Infiltration/Inflow Study Analysis
a. Utilize fluorometric flow calibration techniques to
quantify the wet weather (high river level )
infiltration in the River District. Alternatively,
SEH will set weirs or flumes with the assistance of
City staff. City staff will check and read them
daily. Flows will be measured during a two month
period encompassing late winter (dry weather flow) and
early spring (wet weather/high river level flow) .
Flows entering the River District will be measured
simultaneously.
b. Using six metering points, subdivide the River
District into four segments and compare measured flows
to calculated sewage flow to identify problem areas.
- 2 -
c. City of Shakopee to bypass pump and video tape
selected sanitary sewer mains during times of high
river levels as requested by SEH.
d. Recommend rehabilitation where cost effective.
e. Estimate flow rate anticipated from River District
after rehabilitation.
f. Field check four private industrial service meters to
verify accuracy of current user measured flows.
Meter' s manufacturer' s literature, installation, and
calibration will be reviewed.
g. Provide a report documenting results.
3. Review the Facility Plan being Completed by the MWCC on
Lift Station L-16.
a. Meet with the MWCC to review the System Improvement
Study.
b. Meet with the MWCC to review their recommended
Facility Plan.
c. Incorporate this data into the Comprehensive Sewer
Plan.
4. Determine Future Flows
a. Review the market study being prepared for Valley
Green Business Park and compare to the growth rate for
the Industrial District as forecasted in the
Comprehensive Plan.
- 3 -
b. Estimate future flows based on the City' s projected
growth and appropriate sewage generation rates.
c. Consider the impact of Rahr Malting' s proposals to
expand their plant and provide their own treatment and
disposal system.
d. Consider a flow diversion from the East District to
the VIP District to relieve lift station L-16 as
necessary per the MWCC Facility Plan.
5. Monitor Chaska Interceptor Planning
a. Review the preliminary System Improvement Study and
meet with the MWCC to discuss alternatives.
b. Provide projected flow data to the MWCC for their use
in preparing the study.
c. Meet with the MWCC to review their preliminary
Facility Plan and provide input and recommendations.
d. Incorporate the final Facility Plan information into
the Comprehensive Sewer Plan.
6. Prepare a 20-year Sanitary Sewer Expansion Plan
a. Consider flow diversions from the VIP District via the
Chaska Interceptor or South Shakopee Trunk Sewer to
the Prior Lake Interceptor to relieve MWCC Interceptor
7023 to the extent necessary.
b. Subdivide sewer districts based on the foregoing data
and develop an ultimate trunk sewer system consistent
with Comprehensive Plan goals, policies, and
objectives.
- 4 -
c. Identify all projected sanitary sewer extensions with
possible interim solutions for temporary service prior
to new trunk/interceptor installation (e.g. , new
regional hospital ) .
d. Consider the long-term cost effectiveness between deep
trunk sewers and lift station and forcemain systems.
e. Prepare a 5, 10, and 20-year plan for the orderly
expansion of the MUSA line in conformance with
Metropolitan Council guidelines. Prepare a MUSA line
expansion map.
f. Address any other sanitary sewer issues raised in the
Comprehensive Plan and offer recommended solutions.
7. Coordinate with the City and with Regulatory Agencies on
the Status of the Comprehensive Sewer Plan
a. Coordinate with MWCC, Metropolitan Council, and other
consultants working for the City.
b. Meet with Shakopee Public Utilities to coordinate with
the Implementation of the Comprehensive Water System
Plan.
c. Meet with City staff at least once a month to discuss
progress on the Comprehensive Sewer Plan.
8. Prepare an Improvement Schedule
a. Develop a schedule of improvements acceptable to the
City.
- 5 -
b. Estimate budget costs for each improvement to provide
a means of projecting future financial needs.
c. Incorporate the results of the feasibility studies.
9. Develop a Comprehensive Sanitary Sewer Plan Document
a. Review and assemble data. Prepare text, drawings, and
schedules. Present the document to the City Council
once in a draft form, and once in a final form.
b. Complete the document in the format necessary for the
City to submit a comprehensive plan amendment to the
Metropolitan Council for approval. Deliver 20 copies
to the City.
c. All work will be performed and delivered in an
automated format. SEH will provide the City with data
presented in an AutoCAD-based comprehensive sewer plan
package. This includes providing the FMS/AC software
and two days of on-site training for the City' s
AutoCAD operator. The FMS/AC software installation
consists of a planning package plus a sanitary sewer
system template. This includes graphics, a data base,
and a tie of sanitary districts to a Lotus 1-2-3
spreadsheet for flow calculation.
C. PRELIMINARY REPORT PHASE
When authorized to perform the Preliminary (Feasibility) Report
Phase, SEH shall:
1. Consult with the CITY representatives to determine the
scope of the project. The scope is anticipated to include
preparation of Report(s) for the Valley Industrial Park and
South Shakopee Trunk Sewer(s) as applicable:
- 6 -
a. Study trunk sewer routing(s) which will serve the
Industrial District north of the T.H. 101 bypass, the
VIP District diverted flow, and South Shakopee
District.
b. Study the impact of MWCC construction/coordination on
the proposed Chaska Interceptor.
c. Review MUSA line concerns with MWCC and Metropolitan
Council.
d. Accomplish preliminary designs which include
construction staging as necessary to accommodate
growth.
2. Make such investigations and perform other tasks determined
by SEH to be necessary to complete the Preliminary Report
for the proposed project.
3. Prepare a Preliminary Report in sufficient detail to clearly
describe the project. The Preliminary Report will include
the following unless otherwise agreed to by the City and
SEH:
a. Background Information
b. Reason(s) for Report
c. Design Criteria as needed
d. Proposed Plan(s)
e. Easement Requirements
f. Permit Requirements
g. Proposed Project Schedule
h. Estimate of Cost
i. Project Financing
j . Results and Conclusions
- 7 -
4. A completed draft copy of the Preliminary Report shall be
submitted to the City staff for their review and comments.
5. Twenty (20) copies of the final Preliminary Report(s) will
be furnished to the City after the comments of the City
staff have been received by SEH.
6. SEH shall participate in the presentation of the contents
of the Preliminary Report if requested by the City at the
following:
a. A City Council Meeting
b. A Public Hearing
c. A Public Informational Meeting
D. OPTIONAL SERVICES
If authorized in writing by the CITY, SEH shall furnish optional
services of the following type:
1. Preparation of applications and supporting documents for
government grants, loans or advances in connection with the
project. Preparation or review of environmental assessment
worksheets and environmental assessment impact statements.
Review and evaluation of any statements or documents
prepared by others and their effect on the requirements of
the project. Assistance in obtaining approvals from
authorities having jurisdiction over the project.
2. Additional services due to significant changes in the
general scope of the Project or its design including but not
limited to, changes in size, complexity of character or type
of construction.
3. Providing services of professional consultants for other
than the basic services stated in the Agreement.
- 8 -
4. Preparation of descriptions for permanent and/or temporary
easements.
5. Serving as an expert witness for the CITY in any litigation
or other proceedings involved in the Project.
6. Additional services in connection with the Project not
otherwise provided for in this Agreement.
SECTION II - THE CITY'S RESPONSIBILITY
A. THE CITY SHALL:
1. Provide full information as to its requirements for the
Project.
2. Assist SEH by furnishing all available information pertinent
to the Project.
3. Guarantee access to and make all provisions for SEH to enter
upon public and private lands as required for SEH to perform
work under this Agreement.
4. Provide such legal, accounting, and financial services as
may be required for the Project.
5. Give prompt written notice to SEH whenever the CITY observes
or otherwise becomes aware of any defect in the project.
6. Furnish television inspection of sewers, land surveys, soil
borings, laboratory material tests, soil tests and other
special items pertinent to the Project.
7. Be responsible for the accuracy and/or omissions of data
furnished by the CITY consisting of, but not limited to,
computations, asbuilt drawings, and maps.
- 9 -
8. Examine all studies, reports, sketches, opinions of
construction costs, drawings, proposals and other documents
presented by SEH and promptly render in its decision
pertaining thereto.
9. Pay all costs incidental to acquisition of regulatory or
review agencies' permits and/or approvals.
10. Designate a person to act as CITY'S representative with
respect to SEH' S service to be performed under this
Agreement; such person shall have complete authority to
transmit instructions, receive information, interpret and
define the CITY' S policies and decisions with respect to
service covered by this Agreement.
11. Furnish (or instruct SEH to provide at the CITY'S expense)
necessary Optional Services as provided in this Agreement or
other services as they may be required.
12. Bear all costs incidental to compliance with the re-
quirements of this Section II.
SECTION III - PERIOD OF SERVICES
A. COMPREHENSIVE SANITARY SEWER PLAN
The schedule for completing the services called for in the
Comprehensive Sanitary Sewer Plan phase is highly dependent on
the input and activity of others, including but not limited to
the Metropolitan Council, MWCC, the City of Shakopee, and others.
It is estimated that all work will be completed within twelve
months after authorization to proceed.
- 10 -
B. PRELIMINARY REPORT PHASE
It is estimated that the services called for in the Preliminary
Report phase of this Agreement will be complete and the final
report submitted to the City within two months of separate
authorization to proceed on the Preliminary Report phase.
C. GENERAL
Unless sooner terminated as provided in Paragraph VI .D. , this
Agreement shall remain in force for a period which may reasonably
be required for the completion of the services called for in that
phase of work last authorized.
SECTION IV - PAYMENTS TO SEH
A. BASIC SERVICES
SEH shall be compensated monthly for the work described in
Section I . Said compensation shall be the total payroll cost of
the personnel assigned to the project times a factor of 2. 13 plus
the cost of expenses as outlined in Section IV.C. and the cost
of equipment utilization as outlined in Section IV.D. An
estimate of the cost for the work, anticipating the need for two
feasibility studies, is $100, 000. This includes expenses and
equipment utilization and providing the FMS/AC software ( $3, 600) .
It is agreed that after 90% of the costs have been incurred, SEH
will notify the CITY and confer with representatives of the CITY
to determine the basis for completing the work. It is agreed
that the cost of the work will not exceed $110, 000 unless the
scope of work is modified.
B. PAYMENTS FOR OPTIONAL SERVICES
The CITY shall pay SEH monthly for optional services performed
described in Section I .D. Monthly payments shall be based on
the total payroll cost of personnel assigned to the project
times a factor of 2. 13 plus the cost of expenses as outlined in
IV.C. plus equipment utilization as outlined in Section IV.D.
- 11 -
C. EXPENSES
The following expenditures made by SEH employees or professional
consultants specifically for the Project are not included in
Basic Services and shall be paid for as agreed in Section IV of
this Agreement.
1. Transportation expense.
2. Fees paid in the name of the CITY for securing approval of
authorities having jurisdiction over the Project.
3. Report and plan reproduction expenses.
4. Special travel and expenses connected therewith required in
connection with the Project and authorized by the CITY.
5. The cost of special consultants or technical services as
required.
D. EQUIPMENT UTILIZATION
The utilization of equipment (computers, electronic survey
equipment and automatic data plotting equipment) for data
acquisition, detailed engineering computations and plan
preparation is recognized as benefiting the CITY through more
efficient production of project documents and minimization of
costs involved with document modification when the project scope
or other conditions change. The CITY, therefore, agrees to pay
the reasonable cost for the use of such specialized equipment on
the project. SEH invoices to the CITY will contain detailed
information regarding the use of specialized equipment on the
project and charges will be based on the standard rates for the
equipment published by SEH.
- 12 -
The CITY shall pay SEH monthly for equipment utilization.
E. DEFINITION
The payroll cost of salaries and wages as the basis for payment
under Paragraph V.A, and V.B. shall mean the cost of salaries
and wages paid to principals and employees engaged directly on
the Project, including, but not limited to, engineers, planners,
surveyors, technicians, drafters, specification writers,
estimators, stenographers and clerks, plus cost of fringe
benefits including, but not limited to, Social Security
contributions, unemployment, excise and payroll taxes,
Workmen' s Compensation, Health and Retirement Benefits,
incentive compensation, sick leave, vacation and holiday pay
applicable thereto.
SECTION V - GENERAL CONSIDERATIONS
A. INDEMNIFICATION
Not withstanding the Scope of Services to be provided by SEH
pursuant to this Agreement, it is understood and agreed that SEH
is not a user, handler, generator, operator, treater, storer,
transporter or disposer of hazardous or toxic substances, .
pollutants or contaminants as any of the foregoing items are
defined by Federal, State and/or local law, rules or regulations,
now existing or hereafter amended, found or identified in the
CITY.
It is further understood and agreed that services SEH will
undertake, for the CITY'S benefit, are potentially uninsurable
obligations involving the presence or potential presence of
hazardous or toxic substances, pollutants or contaminates.
Therefore, the CITY agrees to hold harmless, indemnify and defend
SEH and SEH' s officers, subcontractor( s) , employees and agents
from and against any and all claims, losses, damages, liability
and costs, including but not limited to costs of defense, arising
- 13 -
out of or in any way connected with, the presence, discharge,
release, or escape of hazardous or toxic substances, pollutants
or contaminants of any kind, except for such liability as may
arise out of SEH' s negligence or intentional acts in the
performance of services under this Agreement.
B. LIMITATIONS ON SEH' S LIABILITY
The CITY hereby agrees that to the fullest extent permitted by
law SEH' s total liability to the CITY for any and all injuries,
claims, losses, expenses, or damages whatsoever arising out of or
in any way related to this Agreement from any cause or causes
including, but limited to, SEH's negligence, errors, omissions,
strict liability, breach of Contract or breach of warranty shall
not exceed SEH' S total fee for the services rendered on the
project.
C. REUSE OF DOCUMENTS
All documents including computer data files and drawings prepared
by SEH pursuant to this Agreement are instruments of service in
respect to the Project. All data (printed and electronic) for
this project is intended for comprehensive sanitary sewer
planning and maintenance purposes. Prior to making sanitary
sewer extensions, system connections, or capital expenditure
decisions, field verification of critical comprehensive sanitary
sewer plan data is necessary. Data compiled as part of this
project is from a variety of sources, including City records,
agency records and reports, and consultant reports or asbuilts.
Compiled data is not intended or represented to be suitable for
design purposes by the CITY or others on any other Project. Any
such use without written verification or adaptation by SEH for
the specific purpose intended will be at the CITY'S sole risk and
without liability or legal exposure to SEH; and the CITY shall
indemnify and hold harmless SEH from all claims, damages, losses
and expenses including attorneys' fees arising out of or result-
ing therefrom.
- 14 -
D. ASSIGNMENT
SEH shall not, without the written consent of the CITY assign any
interest or obligation in this Agreement.
E. INSURANCE
SEH shall secure and maintain such insurance as SEH deems
necessary or appropriate, but as a minimum as required by City of
Shakopee specifications, to protect him from claims under
Workmen' s Compensation, accidents or claims for bodily injury,
death or property damage which may arise from the performance of
SEH services under this Agreement.
F. TERMINATION
This Agreement may be terminated by either party upon seven days
written notice should the other party fail substantially to
perform in accordance with its terms through no fault of the
party initiating the termination. In the event of termination
SEH shall be compensated for services performed to termination
date, including expenses and equipment costs then due and all
terminal expenses.
G. FAILURE TO MAKE PAYMENTS
If the OWNER fails to make any payment due SEH for services and
expenses within thirty days after receipt of SEH ' S statement
therefor, the amounts due SEH will be increased at the rate of 1%
per month from said thirtieth day, and in addition, SEH may,
after giving seven days ' written notice to the OWNER, suspend
services under this Agreement until SEH has
been paid in full all amounts due for services, expenses and
charges.
- 15 -
APPROVED:
CITY OF SHAKOPEE, MINNESOTA SHORT-ELLIOTT-HENDRICKSON, INC.
BY: BY:
TITLE: TITLE:
BY: BY:
TITLE: TITLE:
BY:
TITLE:
ADDRESS FOR GIVING NOTICES:
129 East First Avenue 3535 Vadnais Center Drive
Shakopee, MN 55379 St. Paul, MN 55110
- 16 -
CONSENT
i 1 -e)
MEMO TO: Dennis R. Kraft, City Administrator
FROM: Judith S. Cox, City Clerk
RE: Request for Deferment of Special Assessments
DATE: October 9 , 1991
INTRODUCTION:
The City has received an application from Roger O. and Eunice
M. Dedeker for the deferment of special assessments against their
property as a result of the reconstruction of Shumway Street
between 3rd Avenue and 6th Avenue.
BACKGROUND:
As you are aware, both Minnesota Statutes and the City Code
have provisions for Senior Citizens to defer their special
assessments if it would be a hardship for them to make the
payments. Mr. Dedeker has completed an application stating that it
would be a hardship for him to make payments for the special
assessments against his property as a result of the recent
reconstruction of Shumway Street. According to Mr. Dedeker' s
application, he and his wife do meet the conditions outlined in the
City Code.
ALTERNATIVES:
1. Approve the request.
2 . Deny the request.
RECOMMENDATION:
Alternative #1, Approve the request.
REQUESTED ACTION:
Approve the application from Roger O. and Eunice M. Dedeker,
610 West 3rd Avenue, and grant deferment of special assessments to
parcel #27-001310-1 for the 1991-1 Shumway and Scott Streets public
improvements, pursuant to the conditions outlined in Section 2 . 82
of the City Code.
O1SENT / f
MEMO TO: Dennis R. Kraft, City Administrator
FROM: Judith S. Cox, City Clerk
RE: Application for Premises Permit for Shakopee Youth
Baseball/Softball
DATE: October 9 , 1991
INTRODUCTION & BACKGROUND:
The Shakopee Youth Baseball/Softball is applying for a
Premises Permit to sell pulltabs at the Dangerfield' s Restaurant
and Bar (formerly the Shakopee House) . The Association currently
has a Premises Permit for Cheer' s 2 Ya.
The State Gambling Board requires the City Council to adopt a
resolution approving the permit prior to their consideration of the
application.
RECOMMENDED ACTION:
Offer Resolution No. 3482 , A Resolution of the City of
Shakopee, Minnesota, Approving a Premises Permit for the Shakopee
Youth Baseball/Softball, and move its adoption.
RESOLUTION NO. 3482
A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOTA,
APPROVING A PREMISES PERMIT FOR THE
SHAKOPEE YOUTH BASEBALL/SOFTBALL
WHEREAS, the 1990 Legislature adopted a law which requires
Municipal approval in order for the Gambling Control Board to issue
or renew a Premises Permit; and
WHEREAS, the Shakopee Youth Baseball/Softball is seeking a
Premises Permit for Dangerfield' s Restaurant and Bar, 1583 East 1st
Avenue, Shakopee, Minnesota.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the
City of Shakopee, Minnesota, as follows:
That the Premises Permit for Shakopee Youth Baseball/Softball,
at Dangerfield' s Restaurant and Bar, 1583 East 1st Avenue,
Shakopee, Minnesota be approved.
Adopted in Adjourned Regular Session of the City Council of
the City of Shakopee, Minnesota, held this 15th day of October,
1991.
Mayor of the City of Shakopee
ATTEST:
City Clerk
Approved as to form.
City Attorney
/ J6
CONSENT
Without detailed checking, Finance staff is not aware of any bills
in the attacsthat
respective
division
to exceed the division totalbudgets adopted byCouncil .
Included in the bill list is a bill from Kustom Signals, Inc. in the amount
of $1,860.00 for a radar unit ordered by the Police Chief. At this point there
are sufficient appropriations left in the Police Division capital equipment
account to cover the purchase.
However, this item is not listed in the detail budget as an item to be
purchased this year. In accordance with the purchasing policy, an item not
listed in the budget and costing over $1,000 requires prior Council approval and
I am not aware of such approval.
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CONSENT
TO: Dennis R. Kraft, City Administrator
FROM: Tom Steininger, Chief of Police
SUBJECT: Purchasing Error
DATE: October 11, 1991
INTRODUCTION:
I made a mistake and purchased a Radar Set contrary to City Policy.
BACKGROUND:
A month ago, I purchased a radar set. At the time, I knew there
were provisions in my budget for this. When the Finance Department
advised me this was not the case, I checked and discovered that
there is in fact no radar set in the 1991 Police Budget.
Last year, we put a new car on the road and equipped it with the
radar out of the Sergeant' s car. As part of our attempt to save
money last year, we did not purchase a radar.
Last month, when the Sergeant ' s asked for replacement radar for
their car, I apparently got my years mixed up, thought it was in
the budget and authorized the purchase.
There is money set aside in the 1992 Police Budget for Cellular
Telephones.
I am requesting to be allowed to spend $1, 860 of this money to pay
for the radar set.
ALTERNATIVES:
1. Disallow the purchase.
2 . Allow the purchase and authorize use of funds set aside for
cellular telephone equipment to pay for it.
RECOMMENDATION:
Alternative #2 .
ACTION REQUESTED:
Move to amend the 1991 Budget to allow an expenditure of $1, 860 for
the purchase of a radar unit and to decrease the amount budgeted
for a cellular telephone by a like amount.
cONSENT
cu
MEMO TO: Dennis R. Kraft, City Administrator
FROM: David Hutton, Public Works Director
RE: Snow Emergency Route Amendments - Ordinance #321
DATE: October 8, 1991
INTRODUCTION:
Staff would like to propose several minor amendments to the
snow removal ordinance in regard to designated snow emergency
routes prior to this year' s snow season.
BACKGROUND:
The snow season parking restrictions were last amended in
November of 1989 . The amendments that were made at that time
clarified when calendar parking restrictions were in effect and
enforced. The 1989 amendments also designated certain streets in
the City as snow emergency routes. The designation of snow
emergency routes provided the City with the ability to
immediately tow vehicles parked along designated snow emergency
routes. In other cases, towing may only occur after a four (4)
hour time period has elapsed since the issuance of the citation
for said parking violation.
After monitoring snow plowing operations in 1990, I would
like to recommend several amendments to the designated snow
emergency routes. The proposed changes are minor in nature but
will serve to enhance snow plow operation while still allowing
most residents within the urban area to be within two (2) blocks
of a designated snow emergency route.
ALTERNATIVES:
1. Move to offer and adopt Ordinance No. 321.
2 . Do not offer or approve Ordinance No. 321.
3 . Amend Ordinance No. 321 as drafted and move its adoption.
4 . Table action pending further information from staff.
STAFF RECOMMENDATION:
Staff recommends Alternative #1.
ACTION REQUESTED:
Offer Ordinance No. 321, AN ORDINANCE OF THE CITY OF
SHAKOPEE, MINNESOTA, AMENDING CHAPTER 9, PARKING REGULATIONS,
SEC. 9 . 50, PARKING DURING STREET MAINTENANCE AND PARKING BETWEEN
NOVEMBER 15 AND APRIL 1, BY REPEALING SUBD. 8 , RELATING TO SNOW
EMERGENCY ROUTES, AND ENACTING ONE NEW SUBDIVISION IN LIEU
THEREOF, RELATING TO THE SAME SUBJECT, and move its adoption.
[9 . 50]
ORDINANCE NO. 321, FOURTH SERIES
AN ORDINANCE OF THE CITY OF SHAKOPEE, MINNESOTA, AMENDING CHAPTER
9 , PARKING REGULATIONS, SEC. 9 . 50, PARKING DURING STREET
MAINTENANCE AND PARKING BETWEEN NOVEMBER 15 AND APRIL 1, BY
REPEALING SUBD. 8 , RELATING TO SNOW EMERGENCY ROUTES, AND
ENACTING ONE NEW SUBDIVISION IN LIEU THEREOF, RELATING TO THE
SAME SUBJECT.
THE CITY COUNCIL OF THE CITY OF SHAKOPEE, MINNESOTA, ORDAINS :
Section 1 - That Chapter 9, Parking Regulations, Sec. 9 . 50,
Parking During Street Maintenance and Parking Between November 15
and April 1, is hereby amended by deleting Subd. 8 , relating to
snow emergency routes, and enacting one new subdivision which
shall read as follows:
Subd. 8. Snow Emergency Routes. The following streets
shall be designated as snow emergency routes:
[Adams St. from Sixth Ave. to Third Ave. ]
Apgar St. from Sixth Ave. [First Ave. ] to Tenth Ave.
Fourth Ave. from Holmes St. [Fuller Street] to Marschall Rd.
Harrison St. from Third Ave. to Sixth Ave. and Tenth Avenue
to Vierling Drive
Holmes St. from First Ave. to Tenth Ave.
Market St. from Fourth Ave. to Tenth Ave.
Minnesota St. from First Ave. to Fourth Ave.
Scott St. from First Ave. to Sixth Ave.
Shakopee Ave. from Tenth Ave. [Holmes Street] to Eleventh
Ave.
Sixth Ave. from Holmes St. [Main Street] to Adams St.
Spencer St. from First Ave. to Tenth Ave. [Eleventh Ave. ]
Tenth Ave. from Marschall Rd. to Shakopee Ave. [Harrison
Street]
Third Ave. from Harrison St. to Scott St. [Highway 169 to
Holmes Street]
Twelfth Ave. from Adams St. to Taylor St.
Vierling Dr. from County Rd. 16 to County Rd. 79
Note: The bracketed language [thus] is deleted; the underlined
language is inserted.
Section 2 - General Provisions. City Code Chapter 1,
General Provisions and Definitions Applicable to the Entire City
Code Including Penalty For Violation, and Section 9 . 99 , Violation
a Misdemeanor or Petty Misdemeanor, are hereby adopted in their
entirety by reference, as though repeated verbatim herein.
Section 3 - Effective Date. This ordinance becomes
effective from and after its passage and publication.
Passed in session of the City Council
of the City of Shakopee, Minnesota, held this day of
, 1991.
Mayor of the City of Shakopee
Attest: City Clerk
Approved as to form: ib'�4,d;%)
,/ City Attorney
Published in the Shakopee Valley News on the day of
, 1991.
[9 . 50]
-2-
CITY OF SHAXOPEE
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