HomeMy WebLinkAbout2001-06-20 PACKET 08.G.REQUEST OF CITY COUNCIL ACTEON COUNCIL AGENDA
MEETING ITENI # Q
DATE 6/20l01 C.� • ��
PREPARED BY Community Deveiopment Kim Lindquist
ORIGINATING DEPARTMENT STAFF AUTHOR
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COUNCIL ACTION REQUEST
Hoid a hearing to discuss revocation of the conditional use permit for A& F Auto.
STAFF RECOMMENDRTION
Adopt the resolution revoking the canditional use permit for A& F Auto.
ADVISORY COMMISSION ACTION
❑ PLANNING
❑ PUBLIC SAFETY
❑ PUBLIC WORKS
❑ PARKS AND RECREATION
❑ NUMAN SERVICES/RIGHTS
❑ ECONOMIC DEV. AUTHORITY
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APPROVED
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DENIED
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REVIEWED
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� MEMO/LETTER:1) PNemo from Kim Lindquist dated 6/15/01
� RESOLUTION: Draft
❑ ORDINANCE:
❑ ENGINEERING RECOMMENDATIOtV:
❑ �EGA� RECOMMENDATION:
� OTHER: Back up information
ADMINISTRA COMMENTS
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MEMORANDUM
TO: Honorable Mayor and City Council
Ryan Schroeder, City Administrator
FROM: James Strommen, Assistant City Attorney
Kennedy & Graven, Chartered
DATE: June 12, 2001
RE: Disciplinary Action, A& F Auto Conditionai Use Permit
infroduction
On October 4, 2000, the City Council referred this matter to an administrative law judge
(ALJ) with the Minnesota O�ce of Administrative Hearings to establish a factual record
and receive a recommendation from the ALJ as to whether the Conditional Use Permit of
A& F Auto Parts should be revoked. Pursuant to this statutory procedure, hearings before
the ALJ were held on December 18, 2000 and March 16, 2001
Discussian
The ALJ determined that there have been numerous violations of the conditionai use
permit that have occurred over a period of years. The ALJ determined that current
violations include: improper storage of tires, batteries, motor fluids, and gas tanks; parking
and storage of vehicles outside the fenced area of the property; failure to maintain fire
access lanes; and improper storage of equipment and materials outside a screened area;
all in violation of the conditional use permit. The ALJ has recommended disciplinary action
against "the licensee, up to and including revocation of the 1995 CUP."
As the attorney acting on behalf of the City in the administrative hearing on this matter, it
is clear that the City now has the factuai and legai basis to revoke the conditionai use
permit. This wili eliminate A& F's right to operate and store equipment on the property,
except for a one acre area that constitutes the original area of nonconforming use.
If the conditional use permit is revoked, any continuing use of the property (otner than the
one —acre site) for automotive reduction and recycling purposes will violate the City's
zoning ordinance. Mr. Martin should be given a reasonable period of time to comply with
the ordinance before the City takes further action to compel compiiance. The City staff
and our office are expioring alternatives for obtaining compiiance, including estimated
costs, and will provide that information to the City Council at a future councii meeting, if Mr.
Martin fails to voluntarily comply with the City's zoning ordinance.
Recommendation
Adopt the resolution revoking the conditional use permit.
CAH-198853v1
CT160-04
RESOL.UTION NO. 01-XXX
A RESO�UTION REVOKING A CONDITIONAL USE PERMIT FOR
A& F AUTO PARTS, 10876 IDEAL AVENUE SOUTH
WHEREAS, A& F Auto Parts was granted a conditional use permit by the City of
Cottage Grove on June 7, 1995, which amended Resolution #79-68; and
WHEREAS, A& F Auto Parts operates an automotive reduction/wrecking yard located
in a residentiai zoning district, which is Iocated on property legally described as:
Part of the Southeast Quarter (SE'/4) of Section Twenty-Nine (29), Township
Twenty-Seven (27) North, Range Twenty-One (21) West, beginning at a point
on the east line of Section Twenty-Nine (29), 744.2 feet north of the southeast
corner of Section Twenty-Nine (29); thence west 1316 feet to the west line of
the Southeast Quarter (SE Y4) of the Southeast Quarter (SE Y<} of Section
Twenty-Nine (29); thence South 247.6 feet; thence east 1316 feet; thence
North 248.07 feet to the point of beginning; excluding therefrom the east 33
feet of said tract for public right-of-way, Cottage Grove, Washington County,
Minnesota.
Commoniy described as A& F Auto, 10876 ideal Avenue South, Cottage
Grove, Washington County, Minnesota. (Exh. 36).
WHEREAS, the Pianning staff has repeatedly notified the property owner, Alvin Martin,
that he is in violation of the conditions of the conditional use permit (#95-79); and
WHEREAS, the City has continued to monitor the property over the last several years
and noted continued violations: and
WHEREAS, the Planning staff informed the City Councii that some of the conditions
specified in Resolution #95-79 are not complied with and requested the City Council to hold a
hearing for purposes of reviewing and revoking the conditional use permit; and
WHEREAS, tt�e City Gounci! held the hearing on October 4, 20Q0 and forwarded the
item to an administrative law judge to make a formal recommendation regarding the
conditianal use permit; and
Resolution No. 01-XXX
Page 2 of 6
WHEREAS, the hearing was heid on December 18, 2000 and continued until March 16,
2001 when it concluded, and the record closed on April 30, 2001 when the final exhibits were
received by the administrative law judge; and
WHEREAS, the administrative law judge issued a findings of fact, conclusion,
recommendation and memorandum on May 9, 2001; and
WHEREAS, the administrative law judge found the following findings of fact:
City is a municipality and a political subdivision of the State of Minnesota, located
in Washington County. The City is statutory and governed by a Mayor and City
Council.
2. Permittee A& F Auto Parks is a Minnesota corporation in the business of
operating an automotive reduction/wrecking yard including junked vehicles
("Business"), ai 10876 Ideai Avenue South in the City. This property consists of
seven and one-half (7.5) acres and is identified or legally described in several
exhibits entered into the record ("Property"). (Exhs. 1, 3, 36, 67; Transcript
December 18, 2000, pp. 6.1, 17; 19.1, 7("12-18-2000 Tr.")). Alvin Martin owns
and operates the Business and also resides on the Property. (12-18-2000 Tr. P.
5). The Business has operated on portions of the Property at least since the
1950s (City stipulation).
3. By ordinance passed on July 27, 1959, the Township of Cottage Grove
established a zoning code and classified the area containing the Property as
Residential-Agricultural, establishing the Business on the Property as a non-
conforming use (Exh. 2). The code required all junkyards to be contained "within
a continuous solid fence...; as to screen completely the operation of the
junkyard" and prohibited anyjunkyard from continuing as a non-conforming use
for more than one year after the passage of the ordinance, unless the required
screening was maintained. (Id.).
4. By ordinance passed March 1, 1963, the Township re-zoned the area containing
the Property as R-3 (�ow Density Residential). Auto wrecking yards and
junkyards were only allowed in Industrial Districts and continued as non-
conforming uses in R-3 Districts, provided, however, that non-conforming uses
could be enlarged by special use permit on such terms and conditions as
established by the Town Board. (Exh. 3, Sect. II.C.1; III.C.2; III.D.11.).
5. The area of the Property on which the Business was operated at the time of the
1959 and 1963 ordinance changes establishing the Business as a non-
conforming use was a total of one (1) acre. This was identified by an aeriai
photograph and sketches submitted by Martin and the Permittee predecessor as
a fenced area within the Property. (Exhs. 4, 6, 14).
6. In 1964 and again in 1979 the Township and City denied and the� approved
expansions of the non-conforming use of the Property through special or
Resolution No. 01-XXX
Page 3 of 6
conditional use permits establishing terms and conditions on which the Business
could expand. (Exhs. 15, 16, 17, 23, 28).
7. Throughout the history of Martin's operation of the Business on the Property
leading up to the 1995 CUP at issue, the City observed numerous violations of
the permits and provided notice to Martin of the violations. (Exhs. 6, 19, 20, 25).
8. As a result of repeated violations and compiaints, the City considered revocation
of the 1979 CUP or amendments thereto for the purpose of obtaining CUP
compiiance from the Business. (Exhs. 32, 33). Following review of and hearings
on the Business and compliance with the 1979 CUP, the City adopted a
resolution amending the 1979 CUP by Resolution 95-79 ("1995 CUP"). (Exhs.
35, 36, 37). The 1995 CUP currently governs Martin's use of the Property for the
Business, the Property legally described as:
Part of the Southeast Quarter (SE'/4) of Section Twenty-Nine (29), Township
Twenty-Seven (27) North, Range Twenty-One (21) West, beginning at a point
on the east fine of Section Twenty-Nine (29), 744.2 feet north of the southeast
corner of Section Twenty-Nine (29); thence west 1316 feet to the west line of
the Southeast Quarter (SE Y4) of the Southeast Quarter (SE '/<) of Section
Twenty-Nine (29); thence South 247.6 feet; thence east 1316 feet; thence
North 248.07 feet to the point of beginning; excluding therefrom the east 33
feet of said tract for public right-of-way, Cottage Grove, Washington County,
Minnesota.
Commonly described as A& F Auto, 10876 Ideal Avenue South, Cottage
Grove, Washington County, Minnesota. (Exh. 36).
9. Since granting the 1995 CUP, the City has identified numerous CUP
violations and repeatedly informed Martin in writing of the specific violations.
(Exhs. 38, 40, 42, 44, 45, 47, 50, 51, 52, 53, 54, 55, 56).
10. Martin has been further informed by the Minnesota Pollution Control Agency
("MPCA") by letter dated August 24, 1999, that the MPCA and Washington
County have identified violations on the Property of hazardous waste storage
requirements under state law. (Exh. 47). These conditions have not been
abated. (Exh. 68A, C-K, 69, 3-16-2001 Tr.).
11. The violations to the 1995 CUP, including violations of MPCA regulations
regarding tire storage and hazardous waste storage and removal (Exhs. 47.5,
7), are set forth in exhibits, including, the December 13, 2000 memorandum
by John Burbank of the City (Exh. 68A), photographs (Exhs. 68C-K, 69, 73A-
F, 74A-G), the testimony of Mr. Burbank on December 18, 2000 and again on
March 16, 2001 (Tr.) and by the testimony of Mr. Martin on December 18,
2000 (Tr. P. 191, 7) and March 16, 2001 (Tr. Pp. 9-15, 49).
12. The evidence of ongoing, substantial, and current 1995 CUP violations, as of
March 16, 2001, is either stipulated to by Martin or credible and unrebutted.
Resolutio� No. 01-XXX
Page 4 of 6
13. Martin has done little to correct the violations, as of March 16, 2001 hearing,
and has apparent physica� difficulty in carrying out the required remediation of
the Property to bring it in compliance with the 1995 CUP.
14. The City's most recent inspection of the Property was March 16, 2001 and
carried out by Burbank. At that time, the violations one through six described
in the December 13, 2000 memo existed, and by stipulation of the parties,
items seven, eight, and nine in the December 13, 2000 memo and the
electrical wiring violation in item five of the memo have been dropped by the
City. (3-16-2001 Tr. pp. 16-26). The current proven and stipulated violations
are:
a. Ongoing and current parking of vehicles and equipment outside of the
approved fenced storage area on the Property in violation of 1995 CUP
conditions 2, 3, and 5 and incorporated provisions 6 and 11 of the 1979
CUP (Exhs. 28, 36, 37, 68A, C-K, 69, Burbank and Martin Testimony}.
b. Failure to provide and maintain twenty-foot wide and multiple fire vehicle
access aisies wifhin the storage area in violation of 1995 CUP condition
11. (Exhs. 36, 37, 66, 68A, GK, 69, Burbank and Martin testimony).
c. Ongoing and current storage of parts, materials, wood pallets, firewood,
equipment, and machinery stored outside of screened area in violation of
City Code provisions incorporated into the 1995 CUP, Title 11, Chapter 2,
Section 9(f)(4) a�d Chapter 6, Section 2. (Exhs. 36, 37, 68A, C-K, 69,
Burbank and Martin Testimony, Exh. 79, Title 11 ch. 6, City Code)).
Improper storage or disposai of motor fluids, freon gas, and batteries in
violation of condition 12 of the 1995 CUP and of Title 11, chapter 2,
Section 9(f)(4) of the City Code incorporated into the 1995 CUP. (Exhs.
36, 37, 49, 57, 68A, C-K, 69, 73, 74, Burbank and Martin Testimony).
e. Improper storage of gaseous tanks in violation of the Uniform Fire Code
and Titie 11, Chapter 2, Section 9(f)(4) of the City Code incorporated into
the 1995 CUP. (Exhs. 36, 37, 68A and B, Burbank and Martin Testimony,
Exh. 77, Articie 74, Sections 7401.5.1, 7401.6.1, 7401.6.3, 7401.6.4,
7401.8.3, 7401.8.6, 7401.14, 7402.1.2, and 7403.1.7, 1997 Uniform Fire
Code, adopted by reference in City Code Section 9-6-1. see Exhs. 68E-2,
68G-3-G-8}.
improper storage of tires on the Property creating a heafth and safety
hazard. and storage of more than 500 tires without a County permit in
violation of Title 11, Chapter 2, Section 9(f)(4) of the City Code
incorporated into the 1995 CUP. (Exhs. 36, 37, 49, 57, 68A and B, 73, 74,
Burbank and Martin Testimony).
WHEREAS, the administrative law judge concluded the foilowing:
Resolution No. 01-XXX
Page 5 of 6
The City Council has }urisdiction over this subject matter of this proceeding. The
City is acting in its quasi-judicial capacity in determining whether a CUP has
been violated. Honn v. Cify of Coon Rapids, 313 N W2d 409, 417 (Minn. 1981).
2. Proper notice of the hearing was timely given, and all relevant substantive and
procedural requirements of law and the City's Code have been fulfilled and,
therefore, the matter is properly before the Administrative Law Judge pursuant to
Minn. Stat. § 14.55 and the resolution of the Cottage Grove City Councii on
October 4, 2000 (Exhibit 60).
3. City Code Title 11, Section 2-9G provides that "A violation of any condition set
forth in a conditional use permit shail be a violation of this Title and shali
constitute grounds for revocation of the conditional use permit by the City
Council."
4. Substantial evidence exists in the record that Permittee A& F Auto Parts has
materiaily and repeatedly violated muitiple conditions of the 1995 CUP affecting
or potentially affecting the health, safety, and welfare of residents in the City.
5. A nonconforming use is established if a permitted use of property becomes a
prohibited use because of a city zoning change. See, Oswalt v. County of
Ramsey, 371 N W 2d 241 (Minn. Ct. App. 1985). City ordinances may prohibit
expansion of or improvement to the nonconforming use, unless such expansion
or improvement is done with the approval of the city in the permit process. Id At
246. The right to and scope of a non-conforming use is fixed at the time of the
zoning change. Id.
6. The total acreage on which Alvin Martin and A& F Auto Parts have a
nonconformi�g use on the Property is the one (1) acre fenced-in area depicted in
the aerial photograph taken on April 24, 1962. (Exh. 4). The balance of the
Property used for the Business is ailowed pursuant to City CUP approval and
Permittee's compiiance with the terms of the CUP. Permittee has violated the
terms of the 1995 CUP.
WHEREAS, the administrative lawjudge recommended the foliowing:
That the City take disciplinary action against the licensee, up to and including the
revocation of the 1995 CUP.
2. That the City Council consider, upon revocation of the GUP, that the automotive
wrecking/reduction junkyard business on the property be limited to the one (1)
acre depicted in the aerial photograph taken on April 24, 1962 (Exhibit 4).
WHEREAS, the City Council held a hearing on June 20, 2001, to discuss the revocation
of the conditianal use permit.
Resolution No. 01-XXX
Page 6 of 6
NOW, THEREFORE BE IT RESOLVED the City Council of the City of Cottage Grove.
Washington County, Minnesota hereby adopts the findings of fact and conclusions of the
administrative law judge.
BE IT FURTHER RESOLVED that based upon said findings and conciusions, the City
Council revokes Resolution 95-79, a conditional use permit allowing expansion of a non-
conforming use.
BE IT FURTHER RESOLVED that the automotive wrecking/reduction junkyard business
on the property be limited to one (1) acre as depicted in the aerial photograph taken on April
24, 1962 (the "Original Nonconforming Area")
BE IT FURTHER RESOLVED that with respect to all of the property except the Original
Nonconforming Area, A& F Auto Parts is ordered to discontinue ail automotive
wrecking/reduction activities and to bring the property into conformance with the requirements
of the City's zoning ordinance no later than
Passed this 20th day of June, 2001.
Sandra Shiely, Mayor
Attest:
Caron M. Stransky, City Clerk
•' � �
TO: Honorable Mayor and City Council
Ryan Schroeder, City Administrator
FROM: Kim Lindquist, Community Development Director
DATE: June 15, 2001
RE: Alvin Martin
The attached information is made available to the Council to aid in
discussion relating to the A& F Auto Parts CUP. On September 1, 1999
the City Council held a workshop to discuss continued violations at A& F
Auto Parts. It was during this time, the City decided to be more rigorous in
inspection and follow-up at the site. At the August 2, 2000 Council meeting
the item was again discussed, and in October 2000, the Council forwarded
the item to an administrative law judge. Excerpts of the mi�utes from
these meetings as weil as the staff report from October are provided.
Additionally, the recommendation from the administrative law judge is
provided. Staff will have available the exhibits from the hearing at the June
20 council meeting should the Council wish to review particular items.
Excerpt from September 1, 1999 Minutes
CLOSED SESSION
MOTION BY WOLCOTT, SECONDED BY RICE, TO C�OSE THE MEETING.
Present: Mayor Denzer
Councii Member Jim Wolcott
Council Member Pat Rice
Council Member Cheryl Kohls
Council Member Sandy Shiely
Also present: Ryan Schroeder, City Administrator
Caron Stransky, City Cierk
Kim Lindquist, Community Development Director
Bob Long, City Attorney, Kennedy & Graven
Pursuant to the open meeting law, there was discussion with the City Attorney relating to
attorney/client privileged informatio� regarding continued code violations at A& F Auto
Parts, 10876 Ideal Ave�ue South.
MOTION BY WOLCOTT, SECONDED BY KOHLS, TO ADJOURN THE CLOSE
SESSION AND RECONVENED THE REGULAR MEETING. MOTION CARRIED. 5-0.
WORKSHOP SESSION (Continued) — Open to the Public
Code Enforcement
Council briefly discussed the four enforcement alternatives available to the City with
respect to Code vioiations:
1. Issue an administrative citation
2. issue a criminal citation
3. Initiate proceeding to consider revocation of a permit
4. I�itiate civil action in District Court to compei enforcement.
Long stated another option would be to abate a nuisance or violation pursuant to the
procedures outlined in Chapter 15 of City Code relating to Nuisances. in essence, the
City could remove the nuisance and biil the property owner the actual cost to do so. If
unpaid, the abatement costs are certified to Washington County as an assessment on
the property. He suggested that the existing abatement procedures be updated.
Council reconvened the regular meeting.
Excerpt from August 2, 2000 Minutes
A. Conditional Use Permit Discussion — A& F Auto
Community Development Director Lindquist briefly discussed the history and details of
the non-compliance situation with A& F Auto. She recommended pursuing revocation of
their CUP as opposed to criminal or civil action.
Councii Member Shiely asked if the situation constituted a health threat. Ms. Lindquist
replied that it is possibie considering the improper storage of tires.
Council Member Woicott suggested prosecution as a solution, noting that if the City
revokes the CUP, they can expect a lawsuit. City Attorney Bob Long noted that an
injunction might be necessary to enforce a revocation.
Excerpt from October 4, 2000 Minutes
A. Revoke the conditional use permit for A& F Auto or refer the item to an
administrative law iudqe
Community Development Director Lindquist explained that staff has compiled materials
to proceed with the revocation, but she suggested that the issue be fonvarded to an
administrative Iawjudge.
It was noted that Mr. Alvin Martin of A& F Auto requested a continuance of the hearing
in order to have time to retain an attorney.
Council Member Kohis informed Council that she has pictures documenting that several
non-complying cars have been removed from the property. Council Member Shiely
suggested that the pictures be presented to the admi�istrative law judge.
City Attorney Corrine Thomson described the duties of the administrative iaw judge,
including taking testimony, swearing in witnesses, and making a decision as a
recommendation to Council. She emphasized, however, that it is ultimately Council's
decision to revoke the permit.
Council inquired about the administrative law process. City Attorney Thomson informed
that, considering the time it might take Mr. Martin to retain an attorney, the parties then
arrange a time mutuaily acceptable, about 30-60 days out, and then the decision comes
back within 30 days depending upon the compiexity of the issues at hand.
MOTION BY SHIE�Y, SECONDED BY WOLCOTT TO FORWARD THE ITEM TO AN
ADMINISTRATIVE LAW JUDGE TO TAKE TESTIMONY FROM THE PROPERTY
OWNER AND THE CITY AND TO MAKE A FORMAL RECOMMENDATION TO THE
COUNCIL. MOTION CARRIED 5-0.
MEMORANDUM
TO: Honorable Mayor and City Council
Ryan Schroeder, City Administrator
FROM: Kim Lindquist
DATE: September 28, 2000
RE: Revocation of Conditional Use Permit for A& F Auto, 10876 Ideal Avenue South
introduction
The City is conducting a hearing to discuss possible revocation of the conditional use permit
(Res. No. #95-79) for expansion of a non-conforming use for A& F Auto, 10876 Ideai Avenue
South. The applicant has been notified by regular mail and certified mail (the letter was re-
turned as refused) of the hearing and the hearing notice, although not required, was published
in the Washington County Bulletin. The revocation proceedings have been initiated, consistent
with tne City Ordinance, due to repeated violations of several of the conditions set forth in the
current conditional use permit.
Background
Around 1958, Frank Martin began operation of an auto reductionlwrecking yard o� the property
now know� as 10876 and 10870 Ideai Avenue. At that time the property was one Iegal lot, ap-
proximating 15 acres. City records indicate that any business activity was located on the south
7.5 acres of the site, where A& F Auto Parts & Recycling, 10876 Ideal Avenue, is located.
On July 27,1959, the Town Board adopted Ordinance No. 15, which designated zoning dis-
tricts by legal description. The 15-acre site was specifically exempt from the industrial district
and therefore was zoned residential-agricultural. The zoning made the existing wrecking yard
use a legal non-conformity. The ordinance aiso stated "Section 6, Subdivision 2, No junk yard
may continue as a non-conforming use for more than one year after the passage of this ordi-
nance, except that a junkyard may continue as a non-conforming use in the commercia!/in-
dustrial and agriculturai districts if within that period it is completely enciosed within a building
or within a continuous solid fence of such height, not less than eight feet in any case, as to
screen completely the operation of the junk yard. Plans for such buiiding or fence shall be
approved by the Town Board before it is erected."
In 1963, the Town Board adoo#ed Qrdinance No. 38 �nd tne property was rezoned to R-3, Low
Density Residence District.
On S�ptemb�r 6, 1963, the Town Board of Suparvisors der�i�d a special us� p�rmit to �nlarge
the auto wrecking yard for Frank Martin at the subject (15 acre} site.
Mayor, City Council, Ryan Schroeder
CUP Revocation Hearing for A& F Auto
September 28, 2000
Page 2 of 5
In March 1964, Frank Martin and Alvin Martin (A & F Auto Parts) requested an expansion to
their auto salvage business. On the application, the site size was listed as 15 acres. On March
23, 1964, the Planning Commission recommended approval of the special use permit applica-
tion for Alvin and Frank Martin to operate an automobile junkyard subject to the following con-
dition: Erection of a fence before intended use of land is started. The April minutes of the
Planning Commission modified the March minutes as they relate to the vote for A& F Auto.
On May 1, 1964, the Town Board directed the Police Chief to make weekly inspections at
A& F Auto until compliance with ordinance and conditions of the 1963 special use permit were
met.
On June 5, 1964, the Town Board declined the special use permit for A& F Auto Parts for ex-
pansion of the present operation. The Town Board noted they wouid entertain a new petition if
the facility operated within the requirements of the ordinance.
On June 17, 1964, Frank Martin and his attorney appeared before the Town Board to inquire
about obtaining a permit to enlarge the present junkyard operation. The Board indicated that if
the site was in compliance with ordinance regulations, they could re-apply for the special use
permit.
On June 22, 1964, Frank Martin, Mrs. Frank Martin, and Cecil Martin appeared before the
Planning Commission to request an opinion and direction on the re-application for a special
use permit for extension of their salvage parts operation. During the meeting, Cecil Martin ex-
plained that the property was now split into a north and south portion with the southern prop-
erty being the site of the present A& F Auto salvage operation. (The City has no record of the
lot division.) He indicated that the soutn part would have additionai fencing surrounding the
saivage yard and later have a residence built on it and the north part would be used for truck
parking and later for truck servicing. The Commission approved a motion to grant two special
use permits, one for each parcei, limited to a maximum of one year each.
On July 20, 1964, Aivin and Frank Martin applied for a speciai use permit and were assigned
Case 64-13. On July 24, 1964, Cecil Martin applied for a special use permit and was assigned
Case 64-14. Cecil's application indicates that the property was currently used as a farm and
home and the proposed use was for truck parking and auto salvage.
On July 27, 1964, the Planning Commission heid deliberations on the two special use permit
applications. Case 64-13 was to expand the auto salvage yard to the entire parcel. The re-
quest was recommended for approval subject to a one-year limit and co�struction of a properly
maintained solid eight-foot high board fence.
On August 7, 1964, the Town Board approved a special use permit for Alvin and Frank Martin
to extend his present auto wrecking facility. There is no record of the Board taking action on
Case 64-14 regarding the request by Cecil Martin.
On May 22, 1978, A& F Auto Parts (Alvin Martin) filed an application for a conditional use
permit for another expansion to the non-conforming auto red�ctionlwrecking yard. The staff re-
Mayor, City Gouncil, Ryan Schroeder
CUP Revocation Hearing for A& F Auto
September 28, 2000
Page 3 of 5
port at the time noted that the business had been in existence since 1963 and that the use was
considered a legal non-conformity. The planning staff recommended denial, and the Planning
Commission concurred, for three reasons. One of which was tnat the area had "been zoned
residential for many years and homes are bei�g constructed adjacent to A& F Auto Parts
causing land use conflicts." On June 7, 1978, the City Council recommended the Conditional
Use Permit for expension of A& F Auto Parts be denied. On August 16, 1978, the City Council
approved the resolution of deniai.
In the latter part of 1978, the City pursued legal action against A& F Auto Parts due to contin-
ued violations of their conditional use permit; to remove inoperable, unlicensed motor vehicles
and debris to a location inside of the existing fence. The court ordered the defendant to comply
with City ordinances. Eventually, A& F Auto complied with the conditions stipulated in the
court order.
In 1979, A& F Auto Parts re-applied for a conditional use permit (CUP). This application
depicts expansion of the auto salvage yard onto both Alvin's and Cecil's properties, thereby
encompassing the entire (originai) 15-acre site. The Planning Commission reviewed the appli-
cation on March 26, 1979, and tabled the item to work out details for approval. The primary
change was to recommend a smaller expansion than that requested and keep the entire
expansion on the southern 7.5 acres (Alvin's property). On April 23, 1979, the Planning Com-
mission recommended approval to expand the storage area and salvage operations onto the
southern, A& F Auto, site. The Town Board approved the request (Resolution No. 79-68) on
May 16, 1979. This resolution replaced the conditional use permit resolution of 1964.
An aerial photograph taken in April 1985 indicates that the salvage yard use had expanded to
the northern lot with the same intensity of use as the southern A& F Auto operation. It does
not appear that there is any physical separation between the salvage operations on the two
properties.
On June 7, 1995, the City Council held a hearing for purposes of reviewing, modifying, or re-
scinding the conditional use permit for A& F Auto Parts due to repeated violations of the cur-
rent permit conditions. The City, during this review, separated the iwo conditional use permits
for the southern and northern properties. Prior to the hearing, the property owner brought the
site into compliance with their conditional use permit. The City Council adopted a new resolu-
tion amending Resoiution No. 79-68, adding a condition that stated, "All subsequent violafions
shall be immediately investigated by appropriate City staff and forwarded to City Council for
review and action to modify or rescind the conditional use permit."
Since that time, City staff has been monitoring the site to assess compliance with the condi-
tional use permit requirements. in September of 1999, staff and Councii heid a workshop ses-
sion and discussed enforcement options for non-complying properties such as A& F Auto. A
decision was made to review the site for the next year and provide additional documentation.
More recently, staff took this item to the Council after severai enforcement letters were sent to
NIr. Martin. We have aiso received information from the MnPCA about violations associated
with fluids and materials storage. it was after this meeting that the Council decided to hold a
t��ayor, City Council, Ryan Schroeder
CUP Revocation Hearing for A& F Auto
September 28, 2000
Page 4 of 5
revocation hearing. Additionally, staff discussed the idea of using an administrative law judge
process.
Discussion
City records show a pattern of enforcement problems with this property dating back to 1964.
Previous attempts to obtain compliance through revocation proceedings, the amended condi-
tional use permit in 1995, and regular inspections and warnings have all proved unsuccessful.
City staff has been working to try and enforce the conditions of the 1995 conditional use permit
for the property, most aggressively in the past year. The following lists the enforcement letters
sent to the property owner in the past year; they are attached for the Council's information.
• September 1, 1999
• October 12, 1999
• November 17, 1999
• January 7, 2000
• May 12, 2000
. June 30, 2000
• July 24, 2000
These Ietters indicate that there are documented violations of the conditional use permit. In
particular, the exterior storage (not behind the screen fence) of business-related vehicles, as
shown by the number of vehicles licensed to persons not residing on the property. The number
of vehicles has varied over the course of the inspections. Additionally, an area previously used
as open space associated with the existing residence has recently been converted to an addi-
tional vehicle storage area. This is a violation of the conditional use permit in total. Likewise,
maintenance of the solid eight-foot fence has been at issue for some time. A fire, on March
30, 1999, removed a portion of the fence, which, as of the last inspection, was stiii not com-
pletely repaired. This would be a violation of condition #2 and #3 of the conditional use permit.
Intermittently, there have been parts and equipment stored outside of the fenced area, incon-
sistent with condition #5 of the 1995 CUP.
Staff has also received information from the Minnesota Pollution Control Agency regarding
storage of materials at the site. On August 24, 1999, the MnPCA sent a letter to Mr. Martin
regarding the amount and storage of approximately 8,000 tires on the site. More recently, on
September 6, 2000, Mr. Burbank atte�ded a meeting with MnPCA staff and others regarding A
& F Auto. The notes from the meeting indicate issues with tire storage due to potential for fire
or a mosquito breeding ground, failure to collect oil and other fluids from the crushing of cars
resulting in the ground being stained with petroleum products and the potential pollution of the
ground and ground water, and the fail�re to properly store spent lead acid batteries. it is the
City's understanding that the MnPCA wiil be pursuing these violations. The above violations
represent noncompiiance with condition #12 of the 1995 conditional use permit, which requires
"a!i motor fluids (e.g. oil, gasoline, anti-freeze, etc.) freon gas, and batteries shall be removed
in the dismantling area and stored or disposed of appropriately. Co�tainers used for storing
motor fluids shall be clearly labeled."
Mayor, City Council, Ryan Schroeder
CUP Revocation Hearing for A& F Auto
September 28, 2000
Page 5 of 5
Conclusion
Under Title 11-2-9G, Revocation of Permit, "A violation of any condition set forth in a condi-
tional use permit shall be a violation of this Title and shali constitute grounds for revocation of
the co�ditional use permit by the City Council." Given the current status of the site and the
continuous non-compliance with conditions of the 1995 conditional use permit, staff is recom-
mending revocation of the permit. Should the property owner wish to provide testimony in op-
position to the recommendation, staff is recommending the City Council refer the matter to an
administrative law judge for review and recommendation.
Recommendation
Revoke the conditional use permit or refer the item to an administrative law judge to take
testimony from the property owner and the City and make a format recommendation to the
Councii.
�6-;0-C1 11:21 Prom-KENNEDY $ GRAVEY
+61233?9:t0 T-865 P C2/OB F-378
�• � ..
6-fiO31-13267-3
STATE OF MINNESOTa �
OFFiGE QF AOMINISTRRTIV� HEARINGS MAY 1 � 1 2vDI
FOR THE CITY QF COTTAGE GROVE
�'n'oF conae_ ;,;;��.
in the Matter of the Conditional Use FiNDINGS OF FACT,
Permit of Alvin Martin and A& F Auto G4NCLUSI�NB,
Parts and Recycling RECQMMENpATION ANp
MEMORANpUM
This mattar came on for hearing on Friday, December 18. 2000 at the
Cottage Grove City Hali in Cottage Grove, Minnesota. Tne hearing continued on
March 16, 2001, when �t canoiuded. The record ciosed on Aprii 30, 2Q01, upon
receipt of finai exhipits fram the City.
James M. Strommen, Esq., of the firm of Ke�nedy & Graven, 47D Pillsbury
Center, Minneapol;s, Minnesota 55�}02 appeared on behalf of ttte City of Cottage
Grove.
Qaniel N. Rosen, Esq., of the firm of Rosen 8 Rosen, 150 South Fifth
Street, Suite 3250, Minneapolis, Minne&ota 55q02 appeared pn pehaif of Alv�n
MaRin and A& F Auto PaRs and Recycling for the March 16, 2001 hearing Mr,
Martin and A& F appeared without legal representation at the pecember 18,
200Q hearing
NOTICE
This Report is a recommendation to the City of Cottaga
Councii may adopt, reject, or modify the Fi�dings of Fact,
RecommendaTion. Hawever, the City Gouncil may noE maKe i
this matter unti{ this report has been availapie to ihe parties f
working days, dnd any patty adversely atfected by it has
opportunity to file exceptions and present aigument to the Cit
should oontact the City Cierk, City of Cattage Grov�, Cottag
�516 80`" Street, Cottage Grove, Minnesota 55Q'16 to obtain i
to file objections or present argument to the Ciry Council.
STATEM�NT OF ISSU�
Grove. The City
Concius;ons, ana
ts fina� qec�sion �n
or at least ten (1d)
been of�ered ihe
y Council. Parties
e Grove City Haii,
nformation on how
Should che City take disciplinary action against the conditionai use permit?
Subissues ar�:
(1) Whether the permitee is in via3atian of the terms of the permit?
05-10-01 11:22 Prom-KENNEDY & GRAVEN
+6123378310 T-865 P 03/OB F-319
(2) What was the area comprising permitee's non-conformfng use
automotive reduction/wreckin� ya�d — junkyard operatian ai the
time ihe City otiginallY zoned the properry residential?
Based upan ali the files anp exhibits in the record, the Administrative Law
Judge makes the following:
FINDlNGS OF FACT
1. City is a municipaliry and a political subdivisian of the State of
Minnesotd, located in Washington County. The Gity is statutory and govemed by
a Mayor and Gity Council.
2. Permittee A 8� F Auto PaRs is a Minnesota corpcaration in the
business of operdting an automotive reductionlwrecking yard inciuding junked
vehicles ("Business"}, at 10876 ldea! Avenue South in ihe City. This property
consfsts of se�en and one half (7.5) acres anp is identifieq o� legally descr�ped in
several exhibits ente�ed irito the record ("PropeRy"}. (Exhs. 1,3,38,67, Transcript
pecember 18, 2Q0� pp 6 1. 17; 19 1. 7("12-18-2000 Tr. ")). Alvin Martin owns
and operates the Business and also resides on the Properry. (12-18-ZOOQ Tr. P.
5). The �usiness has operated on portions of the Property at least since the
1950s. (City stipulatian).
3. By ordinance passed on July 27, 1959, the 7ownship of Cottage
Grove estaplisheq a zoning code and classified the area eontaining the Property
as ResidEntial-Agriculturai, esiabiishing the �usiness on ths Property as a non-
conforming use. (Exh. 2). The code required ali junkyards to be contained "w�thin
a continuous solid fence.., as to screen completeiy the operation of the junkyard"
anq prohipRed any junkyard from conti�uing as a non-conforming use for rtto�e
than one year after the passage of the orqinance, urtiess the required screening
was maintai�eq. (id.j.
4. By orq�nance passed March 1, 1963, the Township re-zoned the
area cantaining the Praperty as R-3 (Low pensity Residentia!). Auto wrecking
yards and junkyards were only alloweq in Industria! Districts and continued as
non-conforming uses in R-3 Qistricts, provided, however, that non-conforming
uses couid be enlargeq py special use permit on such terms and canditions as
establishEd by the Town Board. (Exh. 3, Sect. I!. C 1; IIi. C. 2.; ill D. 11 ).
5- The area of the Property An which the Business was operated at
ttie time of the 1959 and 196a ordinance changes estaplishing the Business as a
non-conforming use was a totai of one(1) acre. 7his was iqentlfied py an
aeriai photograph and sketches submitted by MaRin and the Permittee
predecesso� as a fenced area within the Property. (Exhs. A, 6, 14}.
6. In 19fi4 and again in 1979 the Township and City denied and chen
approveq expansions of the nan-co�forming use of the Property ihrough spec�ai
z
05-10-�1 11:22 from-KENNEDY d GRAVEN +6!233?831� T-889 P 04/�8 F-378
pr conditional use permits astablishing tetms and conpitions on which the
Business cou�d expand. (Exhs. 15, 16, 17, 23, 28).
7. ThroughQUt the history of Mart�n's operation of the Business on the
Property leading up to ine 1995 CLiP at issue, the City observed numerous
violations of the permits and proviqed not�ce to Martin of the violations. (Exhs.
6,19,2a,25).
8. As a resul2 of repeated violat�Qns and complaints, ihe City
consiqered revocation of the 1979 CIIP or amendments thereto for tne purpose
of obtaining CUP compiiance from the Business. (Exhs. 32,33) Foqowing review
of and heatings on the Business and compliance with the 1979 CUP, the City
adapted a resolution amending the 1979 CUP by R�solution 95-?9 ("1995 CUP").
(�xhs. 35,36, 37). The 19a5 CUP currentiy gaverns MaRin's use of the Property
for the Busmess, the PropeRy legaily described as:
Part af ihe 5outheast Quarter (S� 1/4) of 5ection Twenty-Nine
(29), Township Twenty-Seve� t27) Narth, Range Twenty-One (z1)
West, beg�nning at a point on the east line of Sect�on Twenty-N�ne
(29), 744.2 feet noRh of the southeast corner of Section TwenCy-
Nine (29}; thence west 1316 feet to the west line of the Southeast
Quarter (S�114) of the Southeast QuaRer (S�11a) of Section
7wenty-Nine (28); thence South 247.6 feet; thence east 1316 feet;
thertce NpRh 2A8.07 feet to the paint of beginnin�; excluding
therefrom the east 33 feet of said tract for pudlic right-af-way,
Cottage Grove, Washington Gounty, Minnesota.
Commanly described as A& F Auto, 10876 Ideal Avenue South,
Cottage Grove, Washingtan Caunty, Minnesota. (Exh. 36).
9. Since granting the 1995 CUP the City has ident�f�eq numerous CuP
violations and repeatediy informed. MaRin in wtiUng of the speaific v�alations.
(�xhs. 38, 40,42,44,45,q7,50,51,52,53,54,55,56).
10 Martin has taesn further informed by th� Minnesota Pollution
Control A�ency ("MPCA°) by letter dated Au�ust 24, 1999, that ths MPCA and
Washington Counry have id�ntified violations on the Propetty of hazardous waste
storage requ�rem�nts under state law. (Exh. 47). These cond;ifons h8ve not been
abated. (Exh• B�A,C-K, 69, 3-1&-2001 Tr.)
11. The violatlons to the 1995 CUP, mc{uqing violations af MPCA
�sgulations regarding tire starage and hazardaus waste storage anq remavai
(�xhs. 47,5 7); are set forth in exhi6its, including, the Recember 13, 200d
memorandum by �ohn 6urkank of the Ciry (Exh. 68A), photographs (Exhs 88C-
K,69, 73A-F, 74A-C}, the testimony of Mr. Su�bank on December 16. 20Q0 and
again on March 1F, 2001 (Tr.) and by the testimony af Mr Martin on Qecemper
18, 200� (Tr. P.�91 7) and March 16,2001 (Tr. Pp 9-15,�}9).
3
OS-10-01 11:22 From-KENNEDY 8 GRAVEN +5 T-B65 P OS/OB P-378
12. The evidence of ongoing. substantial and current 1995 CUP
violations, as of March16, 2001, is eithef stipulated to by Martin or credible and
unrepuited.
13. MaRin has qone little to correct the violations, as of t�iarch 16, 2Q01
hearing, and has apparent physical difficulty in carrying out the required
rerTiediation of the PropeRy to b�ing it in compliance with the 1995 CUP.
14. The City's most recent inspection of the Propzrty was March 16,
2001 and carried out by 9urbank. At that time, the violations one through six
descriped in the December 13, 200D memo existad, and by stipufatton of the
parties, items seven, e�ght and nine in the pecemper 13, 2000 memo anq the
el�cttical wi�ing violation in item five of the memq have been dropped py the City.
(3-16-2001 T�. pp.1fi-26). The current proven and stipulated vio�ations are
a. dngoing ana currant parking of vehicles and equipment
outside of the approved fenceq s4orage area on the Property fn violation of
1995 CUP conditions 2, 3 and 5 and incarporated prouisions 6 and 11 of
the 1979 CUP (Exhs, 28, 36, 37, 68A, C-K, 69, Burbank and Mamn
Testimony).
p. Failure to provide and maintajn twenty-foot wide and muitiple
fire vehicle access aislas within the storage area in v�olation of 1995 CUP
condition 11. (Exhs 36, 37, 66, 68A, G-K. 89. Burba�k and MaR+n
testimony).
c Ongoing and current storage of parts, materials, wooq
pallets, fire wood,equipment and machinery storea outside of screeneq
area in vialatfon of City Coqe provisions incorparated into the 1995 CUP,
Title 11 chapter 2, Seetion 9(� (q) and chapter6, Section 2. (�xhs 36, 37.
68A, GK, 69, Surbank and Martin Testimony, �xh 79,Titie 11 ch. fi, City
Code)}.
d. Improper storage or disposa! of motor fiuiqs, fraon gas, anp
battenes fn viqiation of condition 12 of the 1995 CUP and of Title 11,
chaptef 2, Sec2iqn 9(f� {q) of the Ciry Code incorporated mto the 1995
CUP. (Exhs. 36, 37, 49, 57, 68A, C-K, 69, 73, 7A, Ruraank and Mart�n
Testimony).
e- Imprapar storage of gaseous tanks in violaLon of the
Unifoft't� Fire Code and Title 11, Chaptet 2, SeCtion 9(fl (4) of the GRy
Code incorporatea into the 1995 CUP (Exhs. 36, 37, 68A and B, BurpanK
and Martin TesUmony, Exh. 77, ARicle 74, Sections 74�1.5.1, 7401.6.1,
7441.6.�. 7401.6.4, 7401.8.3, �401.8 6, 7401.14. 7402.1,2 and 74�3.1 7
1997 Unifarm Fire Code, aqoptec! by reference in Gity coqe Section 8-6-1.
see �xhs 68�-2, B8G-3-G8}.
�. !mp�ope( S;oC2ge Of iit2S o!t the ?tops[ty C�ea?I�tg a health
OS-10-01 11:23 From-KENNEDY G GRAVEN +6123378310 '-BE5 P O6/G6 F-378
and safery hazard, and sto�age of more than 500 tites without a County
permit in violation of Title 11, cnapter 2, Section 9(� (A) of the Ciry Coqe
incorporated into the 1995 CL1P. (�zhs. 3B, 37, 49, 57, 6aA and 6, 73, 74,
BurpanK and Martin Testimony).
Based upon the foregoing Findings of Fact, the Administfative Law Judge
makes the foltawing:
GpNCI�USIONB
1. The City Council has juristliction over ihis subject matter af this
praceeding. 7he Ciry ,s acting in its quasi-judicial capacity in determining
whether a GUP has peen violated. Honn v. City of Coon Rapids, 313 N W2d a09,
417 (Minn. 1981).
2 Proper natice of the hsaring was timely given, and al! relevant
substantive and pfflcetluraf requiremsnts of law and the City's Code have peen
fulfilled and, therefore, the matter is properiy befote the Admin�strative Law
Judge pursuant tra Minn. Stat. § 14 55 and the resplution of the Cottage Grove
City Council on Qctpber 4, 2000 (Exhibit 60).
3. City code Title 11, Section 2-9G provides that "A violation of any
condition set forth in a conqitional use permit shali be a violation of tllis Titie and
shall constitute �rounds for revocat�on of tne conditionai use permit by the City
Councii."
q. Supstantiai evidence exists in the recarcl that Permitte� A 8 F Auto
Parts has materially and repeate�ly violated muitiple conditlans of the 1995 GUP,
affecting or potentially effecting the heaith, safety and welfafe of resldents in the
City.
5. A nonconfo�mirtg use is estabiished if a permitted use af property
becomes a prohibited use because of a city zoning change. See, Oswalt v.
Caunty of Ramsey, 379 N W 2d 24t (Minn. Ct. Rpp. ?985j. City ordinance may
prohibit expansion af ar imptovement to the nonconforming use, unisss such
expansion or improvement is qone wiih the approvai of the city m the p�rmit
process. ld At 2�F6_ The �ight to and scope of a non-canforming use is fixeq at the
time of the zonin� change. Iq
6. The totai acreage on wh�ch A(vin Pvlattin and A 8� F Auta Parts have
a nonconforming use or1 the Property is the one {1) aere fenced in area depicted
in the aerial photograph taken on April 24, 1962. (Exh. k): The palance of the
Property used far the Business is allowed pursuant to City CUP approvai and
Parmittee's compliance with the terms of the CUP. Permittee has violated the
terms af the 1995 CUP.
Based upon ail the files and praeeedings herein, the Adminisirative 4.aw
Judge makes the foilowing:
0
OS-10-0; 11:23 From-KENNE�Y & GRAVEN +6?23379310 T-365 P 07/OB f-3T8
RECOMM6NDA710NS
1. That the City taKe discipiinary action against the licensee, up to and
inc�uding the revocation of the 1995 CUP.
2. That the City Council consider, upon revocation of the CUP, tnat
the automotive wrecKingireduction junKyard business on the propeny pe limited
to the one {1) acre depicted in the aerial photagraph taKen on Ap�i1 24, i962
(Exhibit 4)
Dated this 9`" day of May, 20Q1.
��-�- • V . /1`"" �'c"'
A�t..AN W. K�EIN
Administrative Law Judge
RepoReq: Court RepoRed, Tracy .la Wold, RPR, Diane M. Wr+ght & Associates.
0
05-1�-01 11:23 from-KENNEDY & uRAVEN
Sl"AT� OF MINNESOTA)
) ss
COUNTY OF HENNEPIN)
+6123378310 T-865 P 08/OB F-378
AFFIAAVIT OF SERVICE BY U.S. MAIL
qEqra $ Aws, being first duly sworn, hereby qeposes anq says tnat on
the 8`^ day of May, 2DQ1, at the Gity of Minneapolis, county and state
aforeme�tioned, she served the attached Findings of Fact, Conclusrons,
Recommendation and Memo�andum; Qocket No. 6-6031-13267-3 py depositing
in the United States maii at said City of Minneapolis, a true and corre�t copy
thereof, properly erneloped, with first class postage prepaid anC addressed to
the individuals nameq herein.
James M. Strammen
Kenneqy � Graven
Attorneys at Law
470 Pillspury Center
2Q0 South Si�h Street
MinneapaliS, MN 55402
paniel N. Rosen
Rosen 8 Rosen
Attomeys at Law
15p Sauth Fifth Street, Suite 3250
Minneapoiis, MN 55a02
�a� •C�-
Debra S. Aws
Subscribed and swam to before me
th,s 9`" day of May, 2001.
Notary Pub�ic
#� , �r•... + '
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