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75-01 - Apple Valley Re-E-Mix SPR pt 1V ) LARSON & MERTZ ATTORNEYS AT LAW RU SS ELL H. LARSON 1900 FIRST NATIONAL BANK BUILDING CRAIG M.MERTZ MINNEAPOLIS, MINNESOTA 55402 OF COUNSEL HARVEY E. SKAAR September 14, 1978 TELEPHONE (6:2) 335-9565 MARK C. MCCULLOUGH Donald W. Ashworth Chanhassen City Manager Box 147 Chanhassen, MN 55317 Dear Don: Re: Apple Valley Red-E-Mix Enclosed are various court Valley case which pleadings pertinent to the packet for the meetip'n may wish to include in the Councipple g on September 18e agenda The hearing on the Writ of Mandamu Fridey, October 6th at 9:30 A.M_--been rescheduled to Very - :r y irs, USSELL H. Chanhassen ciA.tRSON RHL:mep Y Attorney Enci. C- VILLAGE OF, kNpr 1-j iAtAHASSEN- wf4m. LARSON 8iC MERTZ'.dE ATTORNEYS AT LAW RUSSELL H. LARSON BUILDING 44 1900 FIRST NATIONAL BANK / ,`�• 7 CRAIG M, MERTZ MINNEAPOLIS, MINNESOTA 55402 _ ^ " OF COUNSEL TELEPHONE J�{�j HARVEY E. SKAgR (612) 335-9565 MARK C. MCCULLOUGH July 12, 1978 Chanhassen City Council C/O Donald W. Ashworth City Manager Box 147 Chanhassen, Minnesota 55317 f�� JUL 1978 � \: U) Recel p ; \NcNANk, S of Re: Apple Valley Red-E-Mix Gentlemen: Building Permit Application This office has been requested to render an opinion on cation of Apple Valley Red-E-Mix for a building an additional fl the appli- cation silo at its present industrial site. The premises in question were zoned in 1972 to C-3 District under Ordinance No. 47, were included in the Central BusinessDistrictzoning Service Commercial amendment adopted February 4 t the premises Commercial Service which, in our 7opinionand Weis designatedasand purpose to C-3. non -conforming As such, Apple Valle cal in scope g use, y Red-E-Mix is clearly It is the opinion of this office that the constitute an enlargement and intensification of the exist conforming use at this location. Proposed addition would non- It is the further opinion of this office that the City lacks authority under the law to Permit in this case, grant the requested building l Permit n this c A zoning ordinance amendment changing the and a these premises to an (- conditional use under that classification swould betrial scondi- tions precedent to the issuance of a building permit. It is our recommendation denied: RHL : j ep the­j�jidingpermit application be Ve RUSSELL H. LARSON FAI M lv� . Minnesota Pollution Control ARP e 612-296-7392 g ncy June 27, 1978 Mr. Bob Waibel Assistant City Planner City of Chanhassen 7610 Lareda Drive P.O. Box 147 Chanhassen, MN 55317 Dear Mr. Waibel: Enclosed is the inspection report of Apple Valley Red-E-Mix which we discussed on June 22, 1978. If you have further questions or comment, please let us kno SIncer Yw. . Martin Osborn, p•E. Engineering Section Division of Air Quality FMO/if encl: 1 Report JUN 1978 RECENED cr V"-LAGE OF �l C'HANHASSEN, 6 or91r��ti��. 1935 West County Road B2, Roseville, Minnesota 55113 Regional Offices • Duluth / Brainerd / Fergus Falls/ Marshall / Rochester/ Roseville Equal Opportunity Employer ADMIN 1000 (REV. 4/77) 55 DEPARTMENT MPCA, DAQ d TO L. Chamberlain, p.E. � Engineerin Chief Division of Airt Quality FROM SUBJECT M. Osborn, P.E. Engineering Section Division of Air w ' Quality STATE OFF ZNNESOTA Of f lce Memor,,d cam Inspection of Apple Valley Red-E-Mix, In response t DATE: 6/2 7/78 PHONE: 7392 Incorporated Waibel o a request from the Assistant City Valle City of Chanhassen, a 1 Y Planner Y Red-E-Mix, Chanhassen plant inspection was , Mr. Bob compliance status with Plant, on June 23 made of Apple Air Pollution Control Regulations. determine Mr. John Theabold, plant manager Plant was in operation at , was contacted at that the plant is an eighty the time of inspection. the Plant, the batch plant which ghty cubic Yard per hour capacity as determined cement and fl uses flyash in some.mixes. gash have a Torit brand nine cartridge concrete on the bin The storage si los for loaded whichehas' The dust collector is dust collector volume. Peens at time intervals used when the silos are which depend on business No visible emissions were rounding yard at the time coming from either the dust could be a of the inspection. Plant or the sur- Mr. Theabold said water has been used i On a dry windy day, rOrn truck traffic on the dust and that there are unpaved yard. Plans to pave 44-- Past to control yard At the time of inspection, the Chanhassen was in compliance with Apple Valley .of Y Red control regulations. Minnesota ta MO/if cc: G. Pulford B. Waibel R. Daly Plant in air pollution r 7610 LAREDO DRIVE®P.O. BOX 1470CHANHASSEN, MINNESOTA 5531 (612) 474-8885 1-10 6 June 14, 1978 Mr. John Ericson Apple Valley Red-E-Mix 6801 150th Street West Apple.Valley, MN Dear Mr. Ericson: Yesterday you received a notice that your request to the City of Chanhassen for your property would be considered Monday, June 19, 1978. I now find that background reports will be unable to be completed for distribution to the City Council in advance of the meeting. As such, I have been forced to delete this item from the agenda. I have tentatively scheduled this item for the next regular Council meeting - July 10, 1978." You will receive a copy of the agenda prior to this meeting giving the time and place of the meeting. Should you have any questions, please feel free to contact me. Since e , Don Ashworth City Manager DA: k CITY OF CHANHASSEN 7610 LAREDO DRIVEOP.O. BOX 1479CHANHASSEN, MINNESOTA 55317 (612) 474-8885 MEMORANDUM DATE: June 7, 1978 TO: City Manager, Don Ashworth and City Attorney, Russ Larson FROM: Assistant City Planner, Bob Waibel SUBJ: Apple Valley Red-E-Mix PLANNING CASE: P-100 Attached hereto are copies of my letter dated May 19, 1978, to Mr. John Ericson, and Mr. Robert Daly's letter of response dated May 31, 1978. The following are some of my comments to Mr. D aly's letter. Mr. Daly has indicated that NSP is the only source of fly ash that Apple Valley is presently using. A breakdown of this fly ash is presented in the attached report from Twin City Testing. In reading this report it appears that, although the -breakdown figures may be useful, this report was designed for trade purposes. I would recommend that the City make an effort to obtain a 3rd party response to the composition of the fly ash with emphasis on the health properties of the fly ash rather than the construction properties of the fly ash. Regarding the required dust controls for an operation using dry cement and fly ash, I would advise Mr. Daly of the existence of MPCA regulations 3 and 5, which set standards for dust control. It has been indicated that Apple Valley does have a filter bag system for trapping escaping dust, however, no evidence of MPCA certification has been given. Again, I would recommend a 3rd party evaluation be obtained regarding the dust control equipment. Mr. Daly had indicated that there would be very little,if any, change to the volume of truck trips per day or tonnage per day being generated from the addition of the 3rd silo, due to the fact that it will simply add diversification to the business rather than increase production. Concerning screening of the operation, I believe that all that can be accomplished for Apple Valley will be screening of structures vehicles and activities, from a ground level to a maximum height of 10 feet. This could only be accomplished through extensive placement of berms around the entire property or with vegetation of greater opacity. I believe that the landscape plan submitted by Apple Valley will not be adequate to effectively screen their operation. " 'Mr. Don Ashworth and Mr. Russell Larson -2- June 7, 1978 In response to our question regarding potential relocation of Apple Valley, Mr. Daly stated that Apple Valley would agree providing to waive all compensation in connection with a third silo. For relocation purposes, the valuation of land and structures for Apple Valley were $9,500.00 for land and $5,900.00 for structures with a total assessed value of $6,622.00 (1976 figures). Also attached to this memorandum, is a copy of my letter to Mr. Louis Chamberlain of the Division of Air Quality, MPCA. It is hoped that this letter will initate an expedient evaluation of the plant in reference to health standards. CITY OF CHANHASSEN 7610 LAREDO DRIVEOP.O. BOX 1470CHANHASSEN, MINNESOTA 55317 (612) 474-8885 June 6, 1978 Mr. Louis M. Chamberlain, P.E. Chief Engineering Section M.P.C.A. D.A.Q. 1935 West County Road B Roseville, MN 55113 Dear Mr. Chamberlain: I was recently referred to you by Mr. Jerry Liefert of the Air Quality Division of MPCA, for further assistance regarding the operation of an Apple Valley Red-E-Mix plant in the City of Chanhassen. In order to better inform you, I will give you a brief history of the situation and what has transpired to date. The Apple Valley Corp., has been operating their ready mix facility in Chanhassen for approximately five (5) years. Recently, Apple Valley has requested approval from the City Council to construct an additional cement silo -on their plant. This particular plant is located in a zone which deems it non -conforming, -and it additionally adjoins_ a residential area. This issue is compounded by the fact that a primary ingredient in their production is fly ash. Because of the non -conforming situation, the proximity of the plant to a residential area, and the utilization of fly ash, it has been requeste, that efforts be made to secure as much information as possible about the potential health problems associated with the use of fly ash in this particular operation. Mr. Liefert had informed me that your offices would be able to give assistance in a technical evaluation of the operation, including adequacy of equipment, the composition of the fly ash, and if Apple Valley's facility is in overall compliance to MPCA standards. For further information I have attached a copy of Mr. Robert Daly's response to my letter of May 9, 1978, and a Chanhassen Land Use map showing the location of the Apple Valley plant and the surrounding land uses. FIA r Mr. Louis M. Chambe. yin -2- June 5, 1978 I would greatly appreciate any recommendations you may have regarding any future action the City may undertake on it's own or jointly with your Agency. If you have any questions or comments, please do not hesitate to contact me. Sincerely, j /,.l Bob Waibel Assistant City Planner BW:k cc: Don Ashworth, City Manager Russell Larson, City Attorney DALY & HARPER ATTORNEYS AT LAW 201 TRAVELERS TRAIL BURNSVILLE, MINNESOTA 55337 TELEPHONE 612-890-3597 ROBERT E. DALY WILLIAM D. HARPER May 31, 1978 Mr. Bob Waibel City of Chanhassen P. 0• Box 147 Chanhassen, MN 55317 Re: City of Chanhassen, Apple Valley Red-E-Mix, Inc. Dear Mr. Waibel- We have your letter dated May 9, 1978 John Ericson of Apple -Valle � addressed to Mr.y and at their request we areresponding'tonc.-mixour client, Your letter. I. What are the sources of fly ash to be used at the Apple Valley facility? NSP is the only source for fly ash. 2. What is the composition of the fly ash and is it acceptable by the Minnesota Pollution Control See testin Agency? g report attached from Twin City Testing, Inc, 3. Are the current and proposed dust control measures adequate to M.P.C.A, rrent a Furnish MPCA evaluation. To the best Of our knowledge there are no specific regulations required b y the generally the Apple Valley Red-E-Mix,Inc. ' but that Chanhassen meetsallindustryInc' operation and dust control. standards regadinin g pollution viLLAe't 01A �H�NHASSF_N� uiT1>~tti � M'. Bob Waibel May 31, 1978 Page 2 4. Have proper certifications pertaining to fly ash source and dust control been obtained from MPCA? if so, furnish copies of certifications. There are no regulations that we are aware of. The only time that the fly ash dust is a factor is when the hopper is loaded, and by way of control there is a "filter bag" system that traps any dust that might otherwise escape from the silo. 5. What is the present volume of truck tri s day as compared to 1977, 1976, 1975 and 1974? p Per 6. If the third silo is approved, how many more truck trips will be generated.per day? Very little, if any. The purpose of the third silo is for diversification of the business and not for its intensification. By way of more detailed explanation, there are presently two silos, one used for dark -colored cement and the other for fly ash. The third silo would only be used for light-colored cement. There are times when light-colored cement is requested and at the present time the facility at Chanhassen cannot accommodate this request. The purpose for the third silo is to provide better service for Apple Valley Red-E-Mix,s customers. 7. What is the daily tonnage of present production as opposed to 1977, 1976, 1975 and 1974? 8. If the third silo is approved, what will be the daily tonnage of production? Probably very little change. g. Will the screening and landscaping as proposed effectively conceal the operation? Yes. 10. How would the addition of the third silo ulti- mately affect potential relocation settlements and the issue of intensifying a non -conforming use? The addition of the third silo would not increase the amount of the relocation settlement, as Apple Valley Er Mr. Bob Waibel May 31, 1978 Page 3 Red-E-Mix, Inc. would agree in writing to waive all compen- sation in connection with the third silo. The use would not be intensified to any appreciable or measurable degree as outlined in our answer to question number 6. The effect would be to diversify the service provided to -Apple Valley Red-E-Mix's customers rather than to intensify the use. We would respectfully request to be placed upon the June 5th agenda. In the event that this were not possible, we would expect to be placed on the agenda for the next meeting. We would appreciate it if you would notify us as soon as possible as to the time for the appearance. Thank you in advance for your cooperation. Yours truly, Robert E. Daly � ,ram` ano en4+necannq laboratory, Inc. d 4 T.M. 662 CROMWELL AVENUE ST. PAUL, MN 55114 PHONE REPORT OF: FLY FOR USE AS COMPACTED FILLs�zis4s-3sai NORTHERN STATES POWER COMPANY PRo,ECT: HIGH BRIDGE, BLACKDOG COAL GENE • RIVERSIDE " DATE: March 2 REPORTED TO RATING PLANT -TWIN CITIES, MN 1976 or ern ower o (6) 414 Nicol let Mal l FURNISHED BY: Minneapolis, MN 55402 COMES To., Attn: Ron Abresch LABORATORY No, --_- GENERAL: After five years experience utilizing fly ash as a co' was requested as tocurrent1 lines. There are o the or a technology control compacted fill, he possible corrosion prfly ashmatio act with either metals or concrete. Use of the fl aggressive chemical elements in the fly evaluated in a similar matter as is done for soils to Y ash which would content and water table. Y ash material should therefore be from these three fossil fuel pl-a.n.ts, combination together with the probable moisture n the generation of electrical the utilization of 70% western coal and bin eastern Power in the Twin Cities 30%of the coal sources has stabilizedon CHEMICAL COMP coal. OSITION OF FLY ASH: Sili.con.4ioxide (SiO2) Aluminum Oxide '(Al 03) 46% Iron Oxide (Fe203) 20% Total Sulfur Trioxide. S03) 9% T5% Magnesium Oxide. �Mg0) Calcium Oxide-(C;aO) 1.7% ' 4-5%- Moisture Content _ '15.5% Loss on Ignitioln Available Alkalies (Rapid 0.10% 0.85% Method) PH (ASTM:C311) 0.70% 3, 0.20% EFFECT OF FLY ASH ON PORTLAND CEMENT CONCRETE: : 10-11 It is not recommended Portland .cement concreieat any special precautions need be taken for fl sulfate. The two elements which would be of concern are -the The pH always. indicates a basic or alkaline condition. Y ash fill around dissolution of the calcium hydroxide. PH and the would negate the development of an Als°, the t °n• Thus, there will be no is utilized with the tricalcium acuminate e ° on ve°sulfate and amount of sulfate Y sulfate reaction even when a T structure, utilization of the fly over 8, TypeI Portland cement ground water in .this Y ash can be handled similarktolthegnormaldsoiconcrete geographical area, is and AS A MUTUAL PROTECTIONT IZATION FOR O CLI PUBLIENTS, TNE'PUOLI CATION OF STATEMENTg, C AOURSELVES, ALL � CONCLU 11ONS OR EXTRACTS FR PO RTR ARE SUBMITTED AS TN OM OR REGARDING OU ['CON ►IDENTIAL ►ROpil O R R[PORT[ !{ R![[RV[O P[N DING OURI[NT{, AND AUTHOR- WRITT[N AP.--.. a' wou.�o d 4'0 } C ti 1 0' LABORATORY No. twin City testlnq aria enc. 662 CROMWELL AVENUE " ST. PAUL. MN 55114 REPORT OF: FLY ASH FOR USE AS COMPACTED FILL PHONE 612/645-36o1 EFFECT OF FLY ASH ON STEEL: DATE: March 2, 1976 PAGE: 2 In the early interim, for the first two to four years, the effect of fly ash fill around the pipe would serve as a retarder to corrosion in the presence of high moisture content or water. This short term protection would be caused by the formation of iron hydroxide on the outer periphery of the pipe. Over a longer period of time, removal of the alkalies would be done by the ground water and long term corrosion would then progress in -a similar. manner as if soil were used for the backfill. Thus, if high moisture content around the backfill or a high water table exists periodically throughout the season, it would be advisable to minimize corrosion of the steel pipe by exterior coatings and cathode pro- tection in a similar manner as if soils were utilized as backfill under these moisture and water conditions. EFFECT OF FLY ASH BACKFILL ON ALUMINUM CONDUITS: Because of the high pH and possible basic condition of water permeating through the fly ash, it would not be advisable to utilize fly ash as backfill around aluminum conduits unless project conditions were such as to insure a dry condition. EFFECT OF FLY ASH BACKFILL AROUND PLASTIC PIPE: There would be no chemical reaction of any of the elements.in fly ash to plastic conduits either in the wet or dry condition. For laboratory and field soil parameters of compacted fly ash, we refer you to the research paper prepared by our firm under the date of October,1970, Laboratory #8-2269. B- 2!:: - Norman E. Henning, P.E. AS A MUTUAL PROTECTION TO CLIENTS, THE PUBLIC AND OURSELVES. ALL REPORTS AR[ ""MITTS. AS TN[ CON FID[NTIAL PROPERTY OF CLIENTS, ILA TIOH FOR PUBLICATION OF ■TA TEM[NTS, CONCLUSIONS OR EXTRACTS FROM OR REGAROINO OUR R[PO RTS IS RESERVED PSN DINQ OUR WRITTEN AND AUTHOR. - [N APPROVAL. � 01= BOB • •• 89• • May 9, 1978 Mrrp?Joh alley Red-E_Mix n Ericson • Inc. 68ol West 150 Apple valley, St. Y. MN .Re: City of Chanhassen, A proposal PPle Valley Dear Mr- Ericson: Red-L-Mix, Inc, Development On Monday, April 2 accompanied b 4, 1978, I re Mix be place y a letter from Ceived two co Don Ashworth d on the You regUestin Pies °? a landscape found and Russell t council agenda. g that Apple V Plan must J. accordance Larson co alley Red-D_ furnishe with council ncerning his Ve since cons befo d befo action matter and ulted re the council. re the APPZe Valley Several have 2nformatIo proposal3nformational 1. What n which must be appears a iterns Valley facility e the sources of fl Provided gain.. Y ash is as follows: 2. What is to be used at the Apple by the Minnesota PolluticorLIohSitlon of fI Control A the Y ash and is it acceptable c Ptab to M.P,C.Are the current a ce le regulations? Fa prop, A dust and dust Have proper Ce h Mp aluat ocontnl measures ade 4, contro rtifi quate certific l been obt cations Pertaining ations, Obtained from g to fl MPCA' ent If so Y ash source 5- T'Jhat is furnish copies of to 1977, 1976, I975eapy�974'volume of truck trips per daycompare will be If the third silo as d generated per day? �s aPProved, how r►anY more truck trips Mr. John Ericson'n -2- May 10, 1978 41 7. What is the daily tonnage of present production as opposed to 1977, 1976, 1975 and 1974? 8. If the third silo is approved, what will be the daily tonnage of production? 9. Will the screening and landscaping as proposed effectively conceal the operation? 10. How would the addition of the third silo ultimately affect potential relocation settlements and the issue of intensifying a non -conforming use? 11. Will Apple Valley agree in writing that it will waive all compensation for relocation of fly ash silo in event of acquisition of property by the City or it's agencies? When these materials are documented, please send them to either Don Ashworth or myself. Sincerely,,' r 1Bob Vvaibel Assistant City Planner BWsk 7610 LAREDO DRIVE*P.O. BOX 1470CHANHASSEN, MINNESOTA 55317 (612) 474-8885 MEMORANDUM TO: City Attorney, Russell Larson FROM: Assistant City Planner, Bob Waibel DATE: May 2, 1978 SUBJ: Apple Valley Red-E-Mix Proposal On Monday, April 24, 1978, I received two copies of a landscape plan accompanied by a letter from Mr. John Ericson requesting to place Apple Valley on the next council agenda. I have subsequently discussed this matter with Don Ashworth and we concurred that several informationa: items might be furnished before the Apple Valley proposal appears again before the council. Some of the questions for which information could be provided are as follows: 1). What is the source of the fly ash to be used at the Apple Valley facility? 2). What is the composition of the particular fly ash and is it acceptable by MPCA? 3). Are the current and proposed dust control measures adequate to MPCA.regulations? 4). Have proper certifications pertaining to fly ash source and dust control been obtained from MPCA? 5). What is the present generation of truck tripsper day as compared to previous years? 6). If the second fly ash silo is approved, how many more truck trips will be generated per day? 7). What is the daily tonnage of present productions as opposed to previous years? 8). If the second fly ash silo is approved, what will be the daily tonnage of production? 9). Will the screening and landscaping as proposed effectively conceal the operation? Mr. Russell Larson -2- May 2, 1978 10). How would the addition of the second fly ash silo :ultimately affect potential relocation settlements and the issue of intensifying a non -conforming use? These are the questions that I would like to receive your input on as to their appropriateness for the next council review, and any comments and additions you may have that would be helpful in reaching a decision on this matter. cc: Don Ashworth, City Manager OFFICE & PLANi i APPLE VALLEY PLANT 2 BURNSVILLE City of Chanhassen 7610 Laredo Drive Chanhassen, MN 55317 t- ANT 5 SPRING LAKE PARK PLANT 4 ST. LOUIS PARK PLANT 3 CHANHASSEN April 24, 1978 ATTN: Don Ashworth, City Manager Dear Sir: Enclosed is a landscape plan showing the location of the screening we will do on the south property line. The trees will be 8 to 10 feet tall and we will plant eight of them. The silos will be screened an additional 16 feet in height. Please place this item on your next council meeting agenda. Sincerely, John C. Ericson JCE/ch Enclosure APPLE VALLEY RED • E e MIX INC. OFFICE & CENTRAL DISPATCHING - 432-7132 6801 150th STREET WEST • APPLE VALLEY, MINN. 55124 CITY OF 8 CHANHASSEN 7610 LAREDO DRIVEOP.O. BOX 1470CHANHASSEN, MIND =SOTA 55317 (612) 474-8885 MEMO RAN DUM DATE: April 12, 1978 TO: Don Ashworth, City Manager FROM: Bruce Pankonin, City Planner SUBJ: Apple Valley Screening PLANNING CASE: P-100 As shown in the attached, Apple Valley Red-E-Mix proposes to plant trees along the -,,plit rail fence (quality, size and location unspecified; and "screen" the . silos to the south line of the batch deck. Staff continues to believe the addition of another _ silo would be an intensification of an existing non -conforming use, a violation of the city's zoning ordinance. APPLE VALLEY APPLE VALLEY, MINN. 55068 Serving Hennepin, Scott, City of Chanhassen 7610 Laredo Drive Chanhassen, MN 55317 ATTN: Mr, Bruce Pankonin Dear Mr, Pankonin: RED - E - MIX 432-7132 - 890-4242 Carver and Dakota Counties April 10, 1978 We request that reconsideration be given to our building permit at your April 17, 1978 council meeting, On April 3rd Mr. Fischer and I met with your council and discussed various items pertaining to the plant. We stand ready to perform the following to screen this plant. a. Trees will be planted next to the split rail fence. (This will be on State owned property) b, Wood screening will be provided on the legs and up to the roof line of the batch deck, C. We have enclosed photos of the plant and silos, and have drawn on them the screening that will be done. Sincerely yo %, Jo n Ericson JE/ch Enclosures 1, r) MEMORANDUM CITY'OF 3 CUARHASSEN 7610 LAREDO DRIVEOP.O. BOX 1476CHANHASSEN, MINNESOTA 55317 (612) 474-8885 TO: Mayor and City Council FROM: City Manager, Don Ashworth DATE: April 3, 1978 SUBJ: Request for Reconsideration - Apple Valley Red-E-Mix, Building Permit On February 21, 1978, the City Council acted to table consideration of this item pending a more definitive response from Apple Valley Red-E-Mix as to "the necessity for reconsideration, i.e. new facts or information which was not previously considered" when this item was previously denied by the City Council. Attached please find a letter from Apple Valley Red-E-Mix, dated March 13, 1978, stating their desire to have this item reconsidered. Based upon the information presented, this office does not find any new facts demonstrating the necessity for reconsideration. Denial of the request is recommended. Should the City Council determine that reconsideration is in order, Council Procedures state that such item would be tabled to the next regular council meeting. CITY OF CHANHASSEN LAREDO DRIVEOP.O. BOX 1470CHANHASSEN, MINNESOTA 55317 (612) 474-8885 YOB MEMORANDUM PI DATE: March 30, 1978 TO: Russell Larson, City Attorney FROM: Bob Waibel, Ass't. City Planner SUBJ: Apple Valley Red-E-Mix As you remember, at yesterday's staff meeting discussion of the Apple Valley Red-E-Mix proposal, I cited a reference mentioning contamination problems associated with fly ash. This reference was contained in a Metropolitan Waste Control Commission informational brochure on hazardous waste, and a copy of which is attached hereto. Subsequent to our meeting, I contacted the Air Quality Division of the MPCA and questioned them about our circumstance. Mr. Gerry Liefert informed me that toxicity or composition of the fly ash could not be determined unless we find out the source of the fly ash and then ask PCA for an opinion as to its potential health hazard. If the fly ash being used by Apple Valley is found acceptable by PCA standards, the City and or the PCA are still responsible for reviewing the facility's dust abatement capabilities. Enclosed are PCA regulations 3 and 5 which address the problems of dust control. The PCA has offered us assistance if either the new or old Apple Valley fly ash silos need to be tested, monitored or cert- ified. CITY OF -- CHANHASSEN 7610 LAREDO DRIVE OKO BOX 147 6 CHANHASSEN, MINNESOTA 55317 (612) 474-8885 March 23, 1978 Mr. John Ericson Apple Valley Red-E-Mix 6801 150th Street West Apple Valley, MN Re: City Council Meeting for April 3, 1978 Dear John: Please be advised your application for reconsideration of Your buil permit request will be heard by the Chanhassen City Council on Aprili3, 1978. The specific time for said reconsideration has not been determined, however, you will receive a COPY of the agenda prior to the meeting. If you have any questions, please feel free to contact me at 474-8885. Si rely, Bruce Pankonin City Planner 131':k PPLE VALLEY APPLE VALLEY, MINN. 55068 V ,Y Serving Hennepin, Scott, City of Chanhassen 7610 Loredo Drive Ch.anh.assen, MN 55317 RED-E-MIX 432-7132 — 890-4242 Carver and Dakota Counties March.l3, 1978 ATTN: Mr. Bruce Pankonin, City Planner Dear Bruce, Please refer to Mr. Ashwo'rth.'s'memorandum dated February 27, 1978. We intend to as-k th_e City Council to reconsider their 3/2 vote of August 15, 1977 on our building permit. Over the past three years- our company has met with various people from your community. (ie. Planning Commission, City Manager, HRS) We have expressed'to you our willingness to work with. your community to insure your long range plans are met. However, we must point out that in the competitive market place we must remain.in a position to give our customers the materials they demand. We feel'th.at the granting of our buildin emit is not an intensification of our business. I9 psrsimplygaech.ange in our customers' requirements that reuires a change in our storage capacity. q For your community to reach. its objective as set forth in your long range planning studies -a suitable mixed tax base is required. To not encourage %ndustry._to stay within your corporate limi.ts:.would be short range planning. We ask that this i.tem.be placed on your city council agenda for action the first part of April. Since ly u Joh Ericson JE/ch_ 7 ,�9 MAR 1978 RECEIVED VILLAGE 019 CHANHASS1 i. p'�j/ Iv MEMORANDUM CITY OF CHANHASSEN 7610 LAREDO DRIVEOP.O. BOX 147*CHANHASSEN, MINNESOTA 55317 (612) 474-8885 TO: Bruce Pankonin, City Planner FROM: City Manager, Don Ashworth DATE: February 27, 1978 SUBJ: Apple Valley Red-E-Mix - Request for Reconsideration Pursuant to the request of Apple Valley, the city council acted to table any consideration on this item at their February 21, 1978, meeting. However, in acting to table the item until a representative of Apple Valley was present, the city council asked that the applicant provide more specific written information as to the type of request coming before the city council, i.e. is this a. reconsideration of the fly ash silo? If such is the case, and given the fact that the city council did previously deny this application, the council would request that the applicant provide written documentation as to the necessity for reconsideration, i.e. new facts or information which was not previously considered. Would you please forward a copy of this memorandum to Apple Valley with any additional comments from your office. I will assume that representatives of Apple Valley will be working with your department in submitting this request to the city council. CITY OF CHANHASSEN 7610 LAREDO DRIVEOP.O. BOX 147*CHANHASSEN, MINNESOTA 55317 (612) 474-8885 MEMORANDUM TO: Mayor and City Council FROM: City Manager, Don Ashworth DATE: February 21, 1978 &uvn by tourfal dab/Q.� 0 f�ej�•cte;... - _ . SUBJ: Visitor Presentations - Request for Reconsideration - Apple Add Valley Red-E-Mix, Building Permit Attached please find a copy of a letter from Apple Valley Red-E-Mix requesting that the city council reconsider their action of August 15, 1977, concerning a building permit for their property. This office has no other information concerning the request other than the letter as attached. For council information, I have enclosed the recommendation and background information as presented on August 15, as well as the city council action on.that date. In accordance with city council procedures, should the applicants provide new information the city council could act to reconsider their previous action. Council procedures states.."A member of the council who voted with the prevailing side, provided that if such motion to reconsider is passed, then the parties entitled to notice on the original action shall be notified, as the reconsider of the action shall be taken at the next regular meeting following passage of the motion to reconsider." Should the council determine to reconsider their previous action, this item would normally appear on March 6, 1978. However, I would ask that the city council consider the recommendation from the HRA (attached) concerning their desire to have input on building plans in the Central Business District area. This office sincerely believes that the HRA is proceeding with preparation of a development plan and any development proposals or building permits could have a significant impact on their ability to proceed in a logical manner. As such, it does not seem unreasonable that Apple Valley Red-E-Mix should meet with the HRA to review their proposed building permit request prior to city council final consideration. APPLE VALLEY ROSEMOUNT, MINN. 65068 Serving South Suburbs City of Chanhassen 7610 Laredo Drive Chanhassen, Minnesota 55317 ATTN: Mr. Don Ashworth Dear Mr. Ashworth: RED-E-MIX 432-7132 — 335-3912 and Dakota County February 9, 1978 On August 15, 1977 Mr. Math Fischer and I appeared before your,city council requesting a building permit for a fly ash silo for our Chanhassen plant. On a 3/2 vote we were denied a permit. At this time we request that this item be again placed on your council agenda for early consideration. Sincerely your , Ericson JCE/ch 10 FEB 1978 RECEIVED aAttnG� e>$ � MINK ^�� � • l CITY O CHANHASSEN 7610 LAREDO DRIVE *P.O. BOX 1470CHANHASSEN, MINNESOTA 553 41 (612) 474-8885 February 8, 1978 Mr. Roman Roos, Chairman Chanhassen Planning Commission 7610 Laredo Drive Chanhassen, MN 55317 Dear Chairman Roos: The Housing and Redevelopment eonsideriny (ilitA) understands that the development on West 78th Street on Februarsketct� Man for a of the specific t y 8, 1978. Proposed yin of consideration which is proposed, but were would ask that the Planning Commission not take action either encouraging or discouraging this development until the fiRA has an opportunity to review this and respond to the until P Planning Commission. Through your help the iiRA has now completed establishment o increment district for downtown Chanhassen. Preparation a men t of the f a tax a nt of the Plan ndosoupportingur docss uments was not a and establish the plan, as now certified to the Count easy a.11 represented People and the City. However, starting point for the iiRA. y and State, is Si1tiply a by which development or redevelopment rcan occurict # butvdoie�s not consider how, where, when, or what. more difficult and will representra to these t consider questions will be even deal the HRAuni and other city commissions, citygreacouncil, businessmore cteOn betwee community. We are aware of the challenges in front of us and welcome and this new phase of interaction a fast track schedule to get us to a We are me between ourselves and the community., point of meaningful dialogue on Again, the purpose of this communication is twofold - time and input on the development _ one to ask for to inform of our status and to make esently before you and, secondly, You aware of our intent to begin a very meaningful discussion of development objectives within the very near future. Although it may be too early to meet a simply at a stage of "where are we?" �� s er are and determining how "concepts" may be developed, witgmayrb advantageous Planning Commission 1192-- February 8, 1978 to consider having a Planning Commission representative attend some of our meetings to insure a method of communicating was open at a very early stage. We leave the determination as to the advisability of a representative attending some of our meetings solely to your discretion. Sincere -- j Don Ashworth HRA Secretary DA:k CITY OF CHANHASSEN 7610 LAREDO DRIVE+P.O. BOX 1479CHANHASSEN, MINNESOTA 55317 (612) 474-8885 PLANNING REPORT DATE: August 11, 1977 TO: Don Ashworth, City Manager FROM: Bruce Pankonin, City Planner SUBJ: Apple Valley Red-E-Mix, Inc., Additional'Fly Ash Hopper PLANNING CASE: P-100 Petitinn Building Permit to Construct Shown in enclosure 1, Apple Valley Red-E-Mix, Inc. is proposing to install a new fly ash silo which will allow their facility to distribute a new line of concrete. Since the property in question is located within the Central Business District, the new addition to the ready mix plant will require the issuance of a conditional use perm: Background 1. Existing zoning: The subject property and environs is zoned Central Business District (CBD). Within the Central Business District, all new uses are allowed only upon the securing of a conditional use permit from the Chanhassen City Council: 2. City Plan Proposal: The subject property and environs, pursuant to the Central Business District Plan, is to assume a retail - commercial identity. 3. History of the Apple Valley Red-E-Mix Complex: a. The cement plant, owned and operated by Apple Valley Red-E-Mix, Inc., existed prior to the adoption of City Ordinance 47-A. This ordinance, adopted by the Chanhassen City Council on February 4, 1974, rezoned the subject property and environs to Central Business District. As you know, the CBD has the following objectives: 1). To help assure that all uses, new development and construction, building and site rehabilitation, remodeling, property access, parking, and pedestrian circulation are conforming to the Comprehensive Municipal Plan and the Central Business District Concept Plan. Mr. Don Ashworth -2- August 11, 1977 2). To help develop and maintain the Central Business District as an economic, social and physical asset to the entire City. 3). To recognize the unique and special problems of the Central Business District, not common to new commercial areas. 4). To help coordinate all private and public development activities in a manner consistent with the concept plan objectives. 5). To develop a uniform architectural theme of a style of a late nineteen century rustic town, utilizing exterior material symbolic of that era, natural woods and earth tones. b. Within the Central Business District, the use of buildings or land shall be permitted only upon the securing of a conditional use permit including, but without limitation to the following: 1). All new construction requiring a building permit and exceeding $500.00 in value. 2)• All exterior rehabilitation of buildings except normal maintenance. 3). All public improvements. 4). All site changes such as access drive, parking arrangements, landscaping, and similar changes. 5). All signs. 6). Such other activities as determined by the Zoning Administrator which may affect the Central Business District concept plan. C. Given the purpose and scope section of the Central Business District Zoning Ordinance and the concepts contained in the Central Business District Plan, it is the feeling of this P1ann( that Apple Valley Red-E-Mix does not comply with the spirit and intent of the existing zoning and the City's objectives as ennunciated in the comprehensive municipal plan, I feel the facility is defined as a non -conforming use and is regulate( by the provisions of City Ordinance 47, Section 20. 4. Non -Conforming Uses: The lawful use of buildings or land existing on February 8, 1972, which does not conform to the provisions of the zoning ordinance shall be discontinued within a reasonable period of amortization of the building, and uses of land or buildings which become non -conforming by reason of subsequent amendments to the zoning ordinance will also be discontinued within a Mr. Don Ashworth -3- August 11, 1977 reasonable period of amortization of the building. The period of amortization shall commence with the effective date of the zoning ordinance and shall extend for a period of not more than 20 years for buildings of wood and masonary construction. 5. Enlargement or Alteration of Non -Conforming Uses: No non-conformin use shall be enlarged, altered or increased, or occupy a greater area than that occupied by such use on the effective date of the zoning ordinance or any amendments thereto. A non -conforming use shall not be moved to any other parcel of land upon which the same was constructed. If no structural alterations are made, a non -conforming use of a building may be changed to another non- conforming use of the same or a more restrictive classification. Whenever .a non -conforming use of a building has been changed to a more restrictive use or to a conforming use, such use shall not thereafter be changed to a less restrictive use. 6. Restoration of Non -Conforming Uses: Any building located in any district which is partially destroyed by any cause may be restored to it's former use and physical dimensions; provided, that any such building which does not conform to the use, height and other restrictions of the district in which it is located and is thus destroyed, according the estimate of the council or some official designated by it, to the extent of 50% or more, may not be rebuilt or reconstructed except in accordance with such restrictions. 7. As shown in enclosure 2, Apple Valley Red-E-Mix, on April 16, 1975, applied for a building permit to reconstruct their damaged facility 8. As shown in enclosure 3, the building inspector on May 9, 1975, felt that less than 50% structural damage was caused to Apple Valley Red-E-Mix's Plant by the previous fire. 9. As shown in enclosure 4, the Planning Commission recommended the City Council issue a building permit allowing Apple Valley Red-E-Mi. to reconstruct their facility. 10. As shown in enclosure 5, the City Council on May 5, 1975, acted to approve Apple Valley Red-E-Mix':s building permit to reconstruct their facility provided Apple Valley post a surety bond to cover 110% of the cost of landscaping and screening. 11. As'shown in enclosure 6, the Planning Commission considered a "punch list" of deficiencies in Apple Valley Red-E-Mix's reconstruc tion schedule when compared to previous Planning Commission action. Specifically, a new fly ash silo was constructed without Council consideration. 12. As shown in enclosure 7, the Planning Commission acted to accept Apple Valley's landscape plan on September 24, 1975. 13. As shown in enclosure 8, I informed the City Council of the complete history of the Apple Valley Red-E-Mix reconstruction and suggested the Council require the applicant to enclose the new fly ash silo so as to harmoniously relate the principal structure and the other enclosed silo. I also suggested if Apple Valley Red-E-Mix is unwilling to perform this construction; the new fly ash silo should be removed. Mr. Don Ashworth -4- August 11, 1977 14. As shown in enclosure 9, the city council considered Apple Valley Red-E-Mix's landscape plan on October 20, 1975, and November 17, 1975. In November, the city council required Apple Valley-Red-E- Mix to enclose the silos. 15. As shown in enclosure 1_, Apple Valley Red-E-Mix, on July 19, 1977, has petitioned the city council to issue a building permit for construction of an additional fly ash silo. 16. As shown in enclosure 10, Apple Valley Red-E-Mix appeared before the Chanhassen Planning Commission with a request to install a new fly ash silo. After considerable debate, the Planning Commission recommended to the council that they deny the petition for the construction of a new fly ash silo for Apple Valley Red-E-Mix because it is the feeling of the commission that construc tion of said silo would intensify the non -conforming use status of the facility. Planners Recommendation: I concur with the planning commission's analysis that the constructi of a new fly ash silo would intensify Apple Valley Red-E-Mix's non conforming use and I" would: recommend denial of the requested building permit. i� Action by City Administrator Endorsed Modified _ Rejected Date Date Submlt:Fd La Date Sub.r,t;sd to Goo;,cci( I'/ /S/ 77 CITY OF CHANHASSEN 7610 LAREDO DRIVEOP.0. BOX 1470CHANHASSEN, MINNESOTA 55317 (612) 474-8885 PLANNING REPORT TO: Planning Commission, Staff and Math Fisher FROM: Bruce Pankonin, City Planner SUBJ: Apple Valley Red-E-Mix's Proposal to Expand Concrete Plant DATE: July 21, 1977 PLANNING CASE: P-383 Petition: Apple Valley Red-E-Mix is proposing installation of a new silo which will allow their facility to distribute a new line of concrete. Since the property is located within the central business district, this new addition to the Red-E-Mix plant would require the issuance of a conditional use permit. Background: 1. Existing Zoning: The subject property and environs is zoned Central Business District. Within said central business district, all new uses are allowed only upon the securing of a conditional use permit. 2. City Plan Proposal: The subject property and environs, pursuant to the central business district plan, is to assume a retail commercial identity. Planner's Comments: 1. As shown in the attached drawing, Apple Valley Red-E-Mix is proposing to construct a new silo east of the heretofore constructed fly ash silo. It is Apple Valley Red-E-Mix's intention to "screen'! the new silo exactly like the previously constructed silos. Planner's Recommendation Since the construction of a new silo will intensify Apple Valley Red-E-Mix's non -conforming use status, I suggest the Planning Commission look with disfavor on Apple Valley Red-E-Mix's intentions to expand it's operation. The applicant, however, has every right to petition the city council for the issuance of a building permit on the subject property. Fidelity BONDING H. Franklin Watts Claims Manager Thomas G. Kalchik Assistant Claims Attorney and Deposit Com an OF MARYLAND y MILWAUKEE CLAIM OFFICE 270 East Kilbourn Avenue Milwaukee, Wisconsin 53202 Phone: (414) 276-4628 July 23, 1976 Mr' Donald W. Ashworth City Administrator Chanhassen, MN 55317 Re: Apple Valley Red-E-,Mix, Inc. City of Chanhassen Bond No. 89 22 473 Claim No. 439003-5 Dear Mr. Ashworth: INSURANCE We are now in of receipt of Jul p Attorney Russell H. Larson's y 19, 1976 regarding the restoration letter wrote on behalf of Apple Valley Red-E-Mix, Inc. which we Please be advised that we are taking this matter er up With our Sincerely y s d� n � r. V �'1 H. Franklin Watts Claims Manager HFW:kb cc: Russell H. Larson In Reply Please Refer to Our File No.:4{39g93-5 U RUC 1976 w '�'TPLE VALLEY APPLE VALLEY, MINN. 55068 Serving Hennepin, Scott, Mr. Don Ashworth City Manager City of Chanhassen Chanhassen, My 55317 Mr. Ashworth: RED-E- MIX 432-7132 — 890-4242 Carver and Dakota Counties July 21, 1976 Because of highway construction this spring on Highway 5 and the the exceptionally warm weather this summer, we have not done any planting at our Chanhassen Plant. We fully intend to comply with the wishes of the city council. We would like to install the required fence at this time and do the planting this fall when the weather permits. We will forward to your attention an extension of our bond covering our agreement with the city council. Sincerely yo , i Joli, a C . Ericson App-e Valley Red E Mix JCE/raf RUSSELL H. LARSON CRAIG M.MERTZ RUISSELL H. ]LARSON ATTORNEY AT LAW 1900 FIRST NATIONAL BANK BUILDING MINNEAPOLIS, MINNESOTA 55402 July 19, 1976 CERTIFIED MAIL RETURN RECEIPT REQUESTED Apple Valley Red-E-Mix, Inc. 6801 West 150th Street Apple Valley, Minnesota Fidelity and Deposit Company of Maryland 2850 Metro Drive Minneapolis, Minnesota Gentlemen: AREA CODE 612 TELEPHOtiE 335-9565 Re: City of Chanhassen Apple Valley Red-E-Mix, Inc. contract bond Reference is made to the Fidelity and Deposit Company contract bond issued July 29, 1974 to the City of Chanhassen, to guarantee performance of building restoration and landscaping at the Chanhassen plant of Apple Valley Red-e-Mix, Inc. This letter is notice to the principal and its surety that the work called for in this matter has not been completed; in fact, the landscaping portion has not yet been started. Accordingly, each of you is hereby advised that unless assurances satisfactory to the City are immediately given that the work will be completed forthwith, the City will institute legal action for recovery of the full amount of the bond. Please direct all inquiries to Mr. Donald W. Ashworth, City Administrator, Chanhassen, Minn. 55317, with copies of all correspondence to be sent to the undersigned. Very truly yours, RUSSELL H. LARSON RHL:mep cc: Donald W. Ashworth Jerry Schlenk h Bruce Pankonin M JUL 1-376 �►u..aa� otr �NH er• 11 wl CD A (D 0 0� �• O-Q ' • CO r' m i m o � CD c� w O = $CD c, m 0 k r \. i ID ? CD ID ci 0 %0 Ph 0 PIN 13 CL 0 J'41 O C3 E'5 w MAMW k-WV 1r_\JOLUTION 1776-1976 CITY OF N 7610 LAREDO DRIVEOP.O. BOX 147,1CHANHASSEN, MINN ESOTA 55317 (612) 474-8885 PLANNING REPORT DATE: October 14, 1975 TO: Mayor and City Council, Staff and John Erickson FROM: Bruce Pankonin, City Planner SUBJ: Apple Valley Red-E-Mix Landscape Plan Attached hereto for your review and consideration is Apple Valley Red-E-Mix's Landscape plan submittedin.response to City Council direction. The following is the complete history of A ' permit as taken from official council and planninglcommire oneling minutes: 1. The Planning Commission on Wednesday, April 23, 1975, made the following recommendation to the City Council: "A motion was made by Dan Herbst and seconded by Hudson Hollenback to recommend to the Council that a building permit be a subject to the general specifications that the a t has d i mitted. That the applicant be allowed to d with h has sub - pis and reconstruction and remodeling but that ancagreement be enteredlon into by the applicant and the City of Chanhassen whereby the land- scape plan and possibly surfacing that area and screening would be done either by bonding or a contract completed over a period of time which would be agreeable to both the City and the applicant and that those plans be brought back to the Planning Commission and Council for final approval. The r the visible sides, three sides, surfacing ofnthe earea, andeening uniformf all painting or staining of all facilities to have a harmonious affect there. Review of the original zoning or conditional use permit be accomplished so that all those conditions are satisfied. Motion unanimously approved." City Council -2- October 15, 1975 2. On Monday, May 5, 1975, the Chanhassen City Council made the following motion concerning the remodeling of the Red-E-Mix facility: "A motion was made by Councilman Neveaux and seconded by Councilman Hobbs that if the Council gets a written statement on the question of whether the building was 50% destroyed from the City Administrator or a qualified representative of his choosing, the Council grants the building permit to Apple Valley Red-E-Mix for the restoration of the building subject to withholding of the occupancy permit until an approved landscape and screening plan has been submitted and that the conditions of the Planning Commission's recommendation of April 23, 1975, be adhered to by the owners of the Red-E-Mix plant. The applicant provide a surety bond to cover 1100 of the cost of the landscaping and screening. The following voted in favor thereof: Mayor Klingelhutz, Councilmen Hobbs and Neveaux. Councilman Shulstad voted no. Motion carried." 3. In addition, Mr. Erickson, from Apple Valley Red-E-Mix stated, "At the present time we have a ranch style fence running east and west on the southern property line. This fence will be repaired and extended to the western edge of our stock piles. Evergreens will be planted starting at the southeast corner of our property and to a point approximately 180 feet west." Also, "We will clean up the entire northern property line but will not interfere with the railroad property. We will plant trees and shrubs where they will not interfere with the railroad or our buildings." In addition, Mr. Erickson stated at the May 5, 1975 Council meeting, "We will repair the roof over the block part of the building, enclose the silos, the office will not be replaced. The existing fence on the east end of the property actually belongs to the drive-in. Should he (drive-in owner) want to take that fence down, we will put one on our property. We intend to clean up the north side of our property but not interfere with the railroad. The landscape plan will cover all of these things. 4. On Wednesday, July 23, 1975, the Planning Commission made the following motion: "A motion was made by Jerry Neher and seconded by Tom Noonan that it be known to the City Council to refer back to the Planning Commission minutes dated April 23, 1975, in regard to the Apple Valley Red-E-Mix plant demolition and reconstrction that the building as constructed does not conform with the plans that were presented to the Planning Commission or the City Council (April 23, 1975 Planning Commission motion). It appears that. none of these things (Ref. Planning Commission minutes of April 23, 1975) have been complied with. The Planning Commission recommends that the Building Inspector be instructed to issue a citation to the Apple Valley Red-E-Mix plant and if not, the Council inform the Planning Commission as to why this condition exists. Motion unanimously approved." 5. On Monday, August 11, 1975, the City Council discussed the Apple Valley's landscape plan. The City Planner sent a letter to Apple Valley on August 7, 1975, stating the Council's motion of May 5, 1975 and the Planning Commission's motion of April 23, 1975, Plus statments that Mr. Erickson made. The landscape plan does not -. City Council -3- October 15, 1975 comply with the wishes of the City Council or Planning Commission or with comments that Mr. Erickson made. The Planner sent the landscape plan and bond ($900.00) back to Mr. Erickson and asked the Building Inspector to review the structure plan submitted by Apple Valley. "A motion was made by Councilman Neveaux and seconded by Councilman Kurvers that a bond be posted immediately in the amount of $5,000.00 subject to review at the time of return of the approved plans from the Planning Commission and that the applicant be referred to the Planning Commission for their recommendation as far as the landscape and screening plans are concerned. The following voted in favor: Mayor Klingelhutz, Councilman Neveaux and Kurvers. No negative votes. Motion carried." 6. On Wednesday, August 13, 1975, the Planning Commission reviewed the Apple Valley landscape plans as submitted to the Council on August 11, 1975. The Planning Commission made the following motion: "A motion was made by Nick Waritz and seconded by Jerry Neher that the intentions of the Planning Commission were adequately stated on April 23, 1975, and that Apple Valley is to conform to the design criteria as outlined by the Planning Commission on that date and the City Council on May 5, 1975. The Planning Commission will review the landscape plan when it is presented. Motion unanimously approved." 7. On Monday, August 25, 1975, the City received a bond in the amount of $5,000.00, as per City Council request. 8. On Wednesday, September 24, 1975, the Planning Commission reviewed the attached landscape plan as prepared by Siefert's Inc. Mr. Erickson read the following into the record: "(1) Painting of the building. Contracts are out and some bids are in on painting the block portion of the building and the cement silo. We prefer not to paint the wood portion of the building because it is cedar and will age and turn gray. (2) Fly Ash Silo. Because of the nature of the concrete business, we have installed a silo for this product. We consider this as part of the equipment needed to do business same as the trucks. (3) Split Rail Fence. The fence will be extended in a westerly drection when the contractor that is working on Highway 5 is done with his highway and slope work. The landscape plan shows a split rail fence. (4) We firmly believe that the surfacing will accomplish nothingin this area except give a hard base for dirt to come down off the Hanus property behind us. "City Council -4- ^'October 15, 1975 We purchased the plant from Western Concrete when they ceased doing business. We realize in some cases there may have been promises made or inferred that were not fully fulfilled by the former owners. We in no way needed the fire that happened to us last year. This has not been a good year in the construction industry in general. We feel that the reconstruction done on this plant meets all the State and local building codes. The location of this plant is ideal as it permits us to serve the western metro area. We intend to grow with the suburbs and with this community. We have posted a $5,000.00 bond with the City which we feel shows our good intentions." The concrete portion of the building and silo will be painted gray which will blend with the cedar and not show the dust. Jerry Neher - I don't like the idea of bringing a plan in that we approve to. the City Council and then have them come back to us and say how come there is a new silo going up down there. I am not happy with the whole situation. Vivian Beaugrand stated she hoped Apple Valley would consider surfacing the main truck traffic area by the plant as the dust is a problem for neighbors. The Planning Commission on September 24, 1975, made the following motion: "A motion was made by Mal MacAlpine and seconded by Vivian Beaugrand to accept the landscaping plan as prepared by Siefert's, Inc. dated August 29, 1975, as submitted with the understanding that the land- scaping be completed upon completion of the work on Highway 5 and that the landscaping be done within one planting season after the completion of Highway 5. The Planning Commission expresses dissatisfaction of not having the painting done within a reasonable time and also consideration should be given to blacktopping to eliminate the dust problem. The following voted in favor: Hud Hollenback, Vivian Beaugrand, Mal MacAlpine, Nick Waritz and Tom Noonan. Jerry Neher voted no. Motion carried." 9. Planner's Comments: I have reviewed the submitted landscape plan and find the following deficiencies pursuant to City Council, and Planning Commission directions and promises made by Mr. Erickson. a. Building has not been painted. b. An additional "fly ash" silo has been constructed. C. The split rail fence is to extend to the stock piles. d. Surfacing of the area is not indicated. e. The proposed plant materials on the south edge of the property will have minimal screening effect upon the principal structure. It must be kept in mind, however, that no amount of planting will completely screen the cement plant. The landscape plan will have only a cosmetic effect, but should improve with age. f. The silo hasnot been enclosed pursuant to Mr. Erickson's statements and plans received by the City. City Council -5- October 15, 1975 10. Planner's Recommendation: I feel Apple Valley Red-E-Mix should be required to fulfull the design requirements as outlined in item number (9) above. In regards to the new fly ash silo, I believe, the City should take the following action: Enclose new silo so as to,.harmonously relate to the principal structure and the other enclosed silo. If the Apple Valley Red,E Mix is unwilling to do this then the new fly ash silo should be removed. O\_UTION e/ c QJ Q 0PA 1776-1976 CITY OF 7610 LAREDO DRIVEcoP.O. BOX 147QCHANHASSEN, MINNESOTA 55317�(612) 474-8885 PLANNING REPORT DATE: September 18, 1975 FROM: Bruce P.ankonin, City Planner TO: Planning Commission, Staff and Apple Valley Red-E-Mix SUBJ: Apple Valley Red-E-Mix Landscape Plan Attached hereto for your review and consideration is Apple Valley Red-E-Mix's Landscape plan submitted in response to City Council direction. The following is the complete history of Apple Valley's remodeling permit as taken from official council and planning commission minutes: 1. The Planning Commission on Wednesday, April 23, 1975, made the following recommendation to the City Council: "A motion was made by Dan Herbst and seconded by Hudson Hollenback to recommend to the Council that a building permit be approved subject to the general specifications that the applicant has sub- mitted. That the applicant be allowed to proceed with his demolition and reconstruction and remodeling but that an agreement be entered into by the applicant and the City of Chanhassen whereby the land- scape plan and possibly surfacing that area and screening would be done eithe by bonding or a contract completed over a period of time which would be aggreeable to both the City and the applicant and that those plans be brought back to the Planning Commission and Council for final approval. They consider the screening of all visible sides, three -sides, surfacing of the area, and uniform painting or staining of all facilities to have a harmonious affect there. Review of the original zoning or conditional use permit be accomplished so that all those conditions are satisfied. Motion unanimously approved." 2. On Monday, May 5, 1975,. the Chanhassen City Council made the following motion concerning the remodeling of the Red-E-Mix facility: "A motion was made by Councilman Neveaux and seconded by Councilman Hobbs that if the Council gets a written statement on the question of whether the building was 50o destroyed from the -City Administrator or a qualified representative of his choosing, the Council grants the building permit to Apple Valley Red-E-Mix for the restoration of the building subject to withholding of the occupancy permit until an approved landscape and screening plan has been submitted and that the conditions of the Planning Commission's recommendation of April 23, 1975, be adhered to by the owners of the Red-E-Mis plant. The applicant provide a surety bond to cover 1100 of the cost of the landscaping and screening. The following voted.in favor: Mayor Klingelhutz, Councilmen Hobbs and Neveaux. Councilman Shulstad voted no. Motion carried." 3. In addition, Mr Erickson, from Apple Valley Red-E-Mix stated, "At the present time we have a ranch style fence running east and west on the southern property line. This fence will be repaired and extended to the western edge of our stock piles. Evergreens will be planted starting at the southeast corner of our property and to a point approximately 180 feet west." Also, "We will clean up the entire northern property line but will not interfere with the railroad property. We will plant trees and shrubs where they will not interfere with the railroad or our buildings." In addition, Mr. Erickson stated at the May 5, 1975 Council meeting, "We will repair the roof over the block part of the building, enclose the silos, the office will not be replaced. The existing fence on the east end of the property actually belongs to the drive-in. Should he (drive-in owner) want to take that fence down, we will put one on our property. We intend to clean up the north side of our property but not interfere with the railroad. The landscape plan will cover all.gf-these things." 4. I have reviewed the .submitted landscape plan and find the following deficiencies pursuant to City Council, and Planning Commission directions and promises made by Mr. Erickson. a. Building has not been painted. b. An additional "fly ash" silo has been constructed. C. The split rail fence is to extend. to the stock piles. d. Surfacing of the area is not indicated. 5. The proposed plant materials on the south edge of the property, will have minimal screening effect upon the principal structure. It must be kept in mind, however, that no amount.of planting will y' completely screen the cement plant. The landscape plan will have only a cosmetic effect, but should improve with age. PLANNER'S RECOMENDATION I feel Apple Valley Red-E-Mix should be required to fulfill the design requirements as outlined in item number (4) above. 0 Reqular. Planning Commission Meeting September 24, 1975 2- The Chamber made a recommendation to the Planning Commission last year saying billboards should be allowed in certain districts but only businesses in Chanhassen could advertise on them. A motion was made by Mal MacAlpine and seconded by Tom Noonan to approve the Reqular Planning Commission Minutes of September 10, 1975, as amended. Motion unanimously approved. RESIGNATION: Jim Mielke has resigned from the Planning Commission. The City P anner was asked to have the City Staff call the persons who have applications on .file with the City to see if they are still interested and also put a notice in Karen's Corner in the Carver County Herald. PROPOSED EXCAVATING ORDINANCE: Mal MacAlpine and the City Attorney have prepared --a proposed Excavation Ordinance for Planning Commission study and recommendation. The City Attorney suggested this could be a temporary ordinance and could be included as a unit of an ecological ordinance in the future. He recommended 150 cubic yards be included in Section 5, 5.01. A motion was made by Nick Waritz and seconded by Jerry Neher to submit the proposed Excavation Ordinance to the Council for their consideration and approval at the earliest possible date. Motion unanimously approved, 40 Planning Commission members are concerned about an ecological ordinance. The Planner will check with the DNR to find out if the standards have been completed on Shoreland Management Act. When these are completed the City will have to have an ordinance. A motion was made by Tom Noonan and secon &d by Vivian Beaugrand to ask the Council to instruct the City Attorney to work on a proposed ecological ordinance. Motion unanimously approved. APPLE VALLEY RED-E-MIX: John Ericson was present. The Planner qave a history or the project. The non-compliance to the City Council directive is that the building has not been painted. The site plan shows one enclosed silo there has been an additional silo attached to the building. The City Planner stated he has no problem with the landscape plan. It will be primarily cosmetic. They probably won't be doing anythinq this year until the railroad gets their grades established and site slopes stabilized. No amount of planting is going to screen that building. The plant materials shown are an attempt and will probably be sufficient. Mr. Ericson read a prepared statement. "1. Painting of the building. Contracts are out and some bids are in on painting the block portion of the building and the cement silo. We prefer not to paint the wood portion of the building because it is cedar and will age and turn gray. -2. Fly Ash Silo. Because of the nature of the concrete business we have installed a silo for this product. We consider this as part of the equipment needed to do business same as the trucks. 3. Split Rail Fence. The fence will be extended in a westerly directi.or when the contractor that is working on Highway 5 is. done with his highway and slope work. The landscape plan shows _q ; Regular Planning Commission Meeting September 24, 1975 -3- 4. We firmly believe that the surfacing will accomplish nothing in this area except give a hard base for dirt to come down off the Hanus property behind us. We purchased the plant from Western Concrete when they ceased doing business. We realize in some cases there may have been promises made or inferred that were not fully fulfilled by the former owners. We in no way needed the fire that happened to us last year. This has not been a good year in the construction industry in general. We feel that the reconstruction done on this plant meets all the State and local building codes. The location of this plant is ideal as it permit: us to serve the western metro area. We intend to grow with the suburbs and with this community. We have posted a $5,000 bond with the City which we feel shows our good intentions." The concrete portion of the building and silo will be painted gray which will blend with the cedar and not show the dust. Jerry Neher - I don't like. the idea of bringing a plan in that we approv to the City Council and then have them come back to us and say how come there is a new silo going up down there. I am not happy with the shole situation. Vivian Beaugrand stated she hoped Apple Valley would consider surfacing the main truck traffic area by the plant as the dust is a problem for the neighbors. A motion was made by Mal MacAlpine and seconded by Vivian Beaugrand to accept the landscaping plan as prepared by Seifert's, Inc. dated August 29, 1975, as submitted with the understanding that the landscaping be completed upon completion of the work on Highway 5 and that the landscaping be done within one planting season after the completion of Highway 5. The Planning Commission expresses dissatisfaction of not having the painting done within a reasonable time and also consideration should be given to blacktopping to eliminate the dust problem. The following voted in favor: Hud Hollenback, Vivian Beaugranc Mal MacAlpine, Nick Waritz, and Tom Noonan. Jerry Neher voted no. Motion carried. GEORGE CRANBROOK - SKETCH PLAN: The property is located on Hummingbird and Melody Hill Road. Mr. Cranbrook wishes to redivide the existing large lots into six lots. Sanitary sewer and water are available. All lots he intends to create meet or exceed the requirements as to area and dimensions of the Zoning Ordinance. The City Planner recommends that Mr. Cranbrook proceed with the development of a short plat showing dimensions of the lots, square footage noted, and placement and depth of existing utilities be shown. The City Engineer will check on the assessments levied on the property and discuss this with Mr. Cranbrook. A motion was made by Vivian Beaugrand and seconded by Jerry Neher to encourage Mr. Cranbrook to proceed with a short plat and provide the necessary information to the City Planner. Motion unanimously approved. CHAFHIASKO VILLAGE 7610 LAREDO DRIVE • P. O. BOX 147 August 7, 1975 Mr. John Erickson Apple Valley Red-E-Mix 1101 West 122nd Street Burnsville, MN • CHANHASSEN, MINNESOTA 55317 0 (612) 474.888E Re: Apple Valley Red-E-Mix, Chanhassen, Minnesota Dear Mr. Erickson: On Monday, May 5, 1975, the Chanhassen City Council made the following motion concerning the remodeling of your red-e -mix facility: "A motion was made by Councilman Neveaux and seconded by Councilman Hobbs that if the Council gets a written statement on the question of whether the building was 50% destroyed from the City Administrator or a qualified representative of his choosing, the Council grants the building permit to Apple Valley Red-E-Mix for the restoration of the building subject to withholding of the occupancy permit until an approved landscape and screening plan has been submitted and that the conditions of the Planning Commission's recommendation of April 23, 1975, be adhered to by the owners of the Red-E-Mix plant, The applicant provide a surety bond to cover 110% of the cost of the landscaping and screening. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs and Neveaux, Councilman Shulstad voted no. Motion carried." The Planning Commission on Wednesday, April 23, 1975, made the following recommendation to the City Council: "A motion was made by Dan Herbst and seconded by Hudson Hollenback to recommend to the Council that a building permit be approved subject to the general specifications that the applicant has submitted. That the applicant be allowed to proceed with his demolition and reconstruction and remodeling but that an agreement be entered into by the applicant and the City of Chanhassen whereby the landscape plan and possibly surfacing that area and screening would be done either by bonding or a contract -completed over a period of time which would be Mr. John Erickson -2- Ac.ojst 7. 1975 agreeable to both the City and the applicant and that those plans be brought back to the Planning Commission and Council for final approval. They consider the screening of all visible sides, three sides, surfacing of the area, and uniform painting or staining of all facilities to have a harmonious affect there. Review of the original zoning or conditional use permit be accomplished so that all those conditions are satisfied. Motion unanimously approved." In addition, you stated "At the present time we have a ranch style fence running East and West on the southern property line. This fence will be repaired and extended to the western edge of our stock piles. Evergreens will be plantedstarting at the southeast corner of our property and toa point approximately 180 feet west." Also, "We will clean up the entire northern.property line but will not interfere with the railroad property. We will plant trees and shrubs where they will not interfere with the railroad or our buildings." Also, "After remodeling, we will paint the entire plant." In addition you stated at the May 5, 1975 Council meeting, "We will repair the .roof over the block part of the building, enclose the silos, the office will not be replaced. The existing fence on the east end of the property actually belongs to the drive-in. Should he (Drive-in owner) want to take that fence down, we will put one on our property. We intend to clean up the north side of our property but not interfere with the railroad. The landscape plan will cover all of these things." I have reviewed your submitted landscape plan and find that it does not conform to the design details requested by the Planning Commission, City Council or the components you suggested. To this end, I am returning your plan and bond and strongly suggest that your firm follows the landscape guide line heretofore outlined, In addition, I have instructed the building inspector to review the structure plans submitted by Apple Valley Red-E-Mix, field survey the site and note all'noncompliance to the plan and report to the City Council. If you have any questions, please contact me at 474-8885, Respectfully, CI-TY OF CHANHASSEN Bruce Pankonin City Planner BP:ke cc: Barry Brooks, Clerk -Administrator Jerry Schlenk, Building Inspector Enclosure �9 Fidelity and k.. 0 an.Deposit Y HOME OFFICE OF MARYLAND BALTIMORE, MD. 21203 KNOW ALL MEN BY THESE PRESENTS: That ......... APPLE VALLEY_ RED_-E-M_IXA .... INC<---------- ------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------------- (liereinaf ter called Principal), as Principal, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, with its Home Office in the City of Baltimore, Maryland, and duly authorized and licensed to do business in the State of ------------ M I NNE SOTA ---------------------------------------------- called Surety), as Surety, are held and firmly bound unto...____C�_T_Y___-OF... C-HANHASSE%__-MI.NINES-QTA-------------------------------------------------- ---- ------ .-------- --------------------------------------------------------------------------- (hereinafter called Owner), in the full and just sum of FIVE .--Tt10l1SAl`1P__.R1'iD---1�101_l_QD-_-_---------_-_----.-_----_-_------_=_=_Dollars0..--- to the payment of which sum, well and truly to be made, the Principal and Surety bind themselves, their and each of their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. Signed, sealed and dated this --------------------2.9TH-----------------------------da of--------------- `��EY Y 19. 7_5-- WHEREAS, the Principal has entered into a certain written agreement,.VS1*M)0*XMytJMXMXMXMXMX &VMMXKXMXMXMXMXMXMXMXMXMAPIXKXMwith the Owner for__RESTQRAz_ZQN--- 0_E__B!-!I_L.D.INCz,.___ AND LANDSCAP I NG- WORK._ -AS__ REQUIRED__ AT___CNAN,;BA$$F-[y___REDI_-M_JX___P_l.ANT.____________________ ----------- - ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ which agreement is or may be attached hereto for reference. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That, if the Principal shall well and truly perform and carry out the covenants, terms and conditions of said agreement, then this obligation to be void; otherwise to remain in full force and effect. WTTNESS: __- ..--------•--- -------------------- ---------------------- --- ------------ (IF INDIVIDUAL OR FIRM) APPLE VALLEY RED-E-MIX INC.(S�AL) rlfL.L�------------------(SEAL) -- -------------------------------------------------------------: ----------------. (SEAL) ATTR9T: X", �. (IF CORPORATION) ATTEST: FIDELITY AND DEPOSIT COIti NY OF N SEE POWER OF ATTORNEY ATTACHED .-----•-------------------------------------------------------- ___(SEAL) YLAND �,, ------------------ - N KLINE ATTORNEY —IN --FACT C3291 12M, 8-68 180177 i COUNTERS I G N E D BY y'+:, •L�',=� ar3;t �— ,MINN. RES. Z=NT Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND HOME OFFICE: BALTIMORE, MD. ICNow ALL ME-N BY THLsE PRESENTS: That the FIDE,L.ITY AND D2:POSIT COMPANY OF MARYLANI), a corpora- tion of the State of Maryland, by JOHN C. GARDNER , Vice -President, and C. M. PECOT, JR. Assistant Secretary, in pursuance of authority granted by Article VI, Section 2, of the By -Laws of said Com- pany, which reads as follows: ""The President, or any one of the Executive Vice -Presidents, or any one of the additional Vice -Presidents specialty authorized so to do by the Board of Directors or by the Executive Committee, shall have power, by and with the concurrence of the Sec- retary or any one of the Assistant Secretaries, to appoint Resident Vice -Presidents, Resident Assistant Secretaries and Attorneys - in -Fact as the business of the Company may require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertakings, recognizances, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgments, decrees, mortgages and instruments in the nature of mortgages, and also all other instruments and documents which the business of the Company may require, and to affix the seal of the Company thereto." does hereby nominate, constitute and appoint John Kline, Dale F. Kline and Russell M. Shirley, all of Middleton, Wisconsin, EACH .................,........_........ I s rue anc lawful agent and Attorney -in -Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, , _ ... n tie execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Company, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the Company at its office in Baltimore, Md., in their own proper persons. This power of attorney revokes that issued on behalf of John Kline and Dale F. Kline, dated June 5, 1974. The said Assistant Secretary does hereby certify that the aforegoing is a true copy of Article VI, Section 2, of the By -Laws of said Company, and is now in force. IN WITNESS WHEREOF; the said Vice -President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this --------------------19th•-----------------------------day of --------•-----------December-------------------- A.D. 2974 ATTEST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND (SIGNED) ---------------------•----------...._�....I�_ By ................................................ ION --- C__-GARPi`J�R (SEAL) Assistant Secretary Vice -President STATE OF MARYLAND CITY OF BALTIhroRE ss: On this 19th day of December A.D. 1974 , before the subscriber, a Notary Public of the State of Maryland, in and -for the City of Baltimore, duly commissioned and qualified, came the above -named Vice -President and Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal acid their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said. Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal, at the City of Baltimore, the day and year first above written. (SIGNED)-----•MELINUA T HA -US . (SEAL) Notary Public Commission Expires_,Iuly_._1_,_..1_978 CERTIFICATE 1, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the original Power of Attorney of which the foregoing is a full, true and correct copy, is in full force and effect on the date of this certificate; and I do further certify that the Vice -President who executed the said Power of Attorney was one of the additional Vice -Presidents spe- cially authorized by the Board of Directors to appoint any Attorney -in -Fact as provided in Article VI, Section 2 of the By -Laws of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. This Certificate may be signed by facsimile under and by authority of the following resolution of the Board of 1)ircrtur- of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 16th day of July, 1969_ RESOLVED: ""Chat the facsimile or mechanically reproduced signature of any Assistant Secretary of th. Couupany, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed." IN TESTIMONY WIIEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said Corrlpcinv, this 2 9 T H .. _ day ... rlsaid J U L Y•---•-••• -- 19.15 ! Special. City Council Meeting August 11, 1975 -6-- lower area in Greenwood Shores would have to be served through a lift station on the park property and pumped into the gravity line. The eight inch watermain would be extended along Powers Blvd. to Greenw Shores. They have provided an eight inch stub under Powers Blvd. to connect in the future to Carver Beach to provide a looped system. The roads are generally 24 to 26 feet wide and would be restored to a 26 foot width, 7 ton standards. There are a number of catch basins anc storm sewers in Greenwood Shores. Most of them outlet to the lake. These will be replaced as a part of the project. The total estimated cost of the project is $605,100. The lateral costs would be spread to the benefitted properties which not only include Greenwood Shores but also include the property abutting the connecting line. Since the average lot frontage in Greenwood Shores is 175 feet the Engineer felt it was reasonable to could one unit for every 175 fee of frontage on the connecting line. This makes a total of 132 units to be assessed at $5,952 per unit. If this project were put with the Carver Beach project it would raise the unit price in Carver Beach by $70 per unit. APPLE VALLEY RED-E-MIX: Mr. John Ericson was present. The City Planne sent a letter to Apple Valley on August 7, 1975, stating the Council's motion of May 5 and Planning Commission recommendation of April 23, plu statements that Mr. Ericson made. The landscape plan does not comply with the wishes of the City Council or Planning Commission or with comments that Mr. Ericson made. He sent the landscape plan and bond back to Mr. Ericson and asked the Building Inspector to review the structure plans submitted by Apple Valley. A Certificate of Occupancy has not been issued. The Building Inspector stated the building did change design somewhat from the original plans. It was a square type building originally and they did add the cupola on top. The construction of the building is done but it hasn't been painted. He stated he had talked to Mr. Ericso and in the Council minutes is said that the silos would be enclosed but Mr. Ericson's definition of the silos is different than what the Planning Commission and Council thought. The silos that he was talking about are now the ones that are enclosed not the actual cement silos. The City Planner reviewed the landscape plan. At the Council meeting o May 5 Mr. Ericson stated "we have a ranch style fence running east and west on the southern property line. This fence will be repaired and extended to the west edge of our stock piles." A fence is not shown on the plan. "Evergreens will be planted starting at the southeast corner of our property and to a point approximately 180 feet west." The trees shown are green ash, silver maple, lombardy popler, and russian olive. Mr. Ericson stated they have met with landscape people and were told that if you want the area screened the decidious trees would grow faster than evergreens. The Planner felt the Planning Commission is quite concerned about the additional silo that was installed and about the surfacing of the area. The Administrator recommended that this be sent to the Planning Commission for their review also that a much more substantial bond be posted to insure rapid revision of the plan as will be directed by the next review by the Council of the plan and -to insure :oroletion of Special City Council Meeting August ll,.1975 -7- landscaping and other on site facilities. A $5,000 bond be posted immediately and when the plan for on site improvements is approved by the Council the bond amount can be reduced to reflect the actual cost of the improvements. A motion was made by Councilman Neveaux and seconded by Councilman Kurv, that a bond be posted immediately in the amount of $5,000 subject to review at the time of return of the approved plans from the Planning Commission and that the applicant be referred to the Planning Commissio. for their recommendations as far as the landscape and screening plans are concerned. The following voted in favor: Mayor Klingelhutz, Councilmen Neveaux and Kurvers. No negative votes. Motion carried. Mr. Ericson stated that the painting will be done this year and the planting late this fall. CETA TITLE VI FUNDING: Mrs. Theresa Erickson was present to explain tho program. Money or t is program is allocated to the County. The Count has set aside money to be used in Chanhassen. There is a limit of $10,000 per year salary plus fringe benefits. The program may be extended beyond June 30, 1976, if the economy stays the same or doesn't improve. The program was available August 1, 1975. The position has to be in addition to the present staff. The person has to be a Carver County resident and unemployed for 30 days or underemployed. The Count, is required to do County wide advertising plus put it in the Minnesota Employment Service Job Bank. The Administrator recommended that the area of most need is the Utility Department. A motion was made by Councilman Neveaux and seconded by Councilman Kurvc to direct the Administrator to draft a preliminary job description for the Utility Department for Council approval August 18. The following voted in favor: Mayor Klingelhutz, Councilmen Neveaux and Kurvers. No negative votes. Motion carried. MINNEWASHTA REGIONAL PARK: Pat Murphy, Bill Dilks, Commissioner Wayne Holtmeier, Dick Dutcher, Vivian Beaugrand, and Pat Boyle were present. The Planning Commission has been working on a recommendation to the City Council that the Comprehensive Plan of the City be amended to include a park on Lake Minnewashta. When the Planning Commission approN their minutes on August 13 then this proposal to amend the plan will be sent to the Metropolitan Council for their comment and review. The City Council cannot take action until the comments from the Metropolitar Council are received. The County Park Commission will have to go beforE the County Commissioners for approval of the park plan. They would likE comments from the City Council to take to the County Commissioners. Councilman Neveaux - I definitely am supportive of the proposal. I think the County has done an excellent job responding to the wishes, needs, and concerns of the citizens of the City. I am absolutely for it Councilman Kurvers - I think it's an awfully pretty piece of ground to be rooted up and homes put in. It would be one of the most positive actions that anyone -can make for future generations because this type of land there just isn't going to be anymore. With all the facts that have been presented to me to this time 1 would definitely go along with it. Fidelity and Deposit Company HOME OFFICE OF MARYLAND BALTIMORE, MD. 21203 CONTRACT BOND KNOW ALL MEN BY THESE PRESENTS: That --------- APPLE VALLEY___RED_-E-MIX,__-_IN_C_s_________________ ---------------------------------------- ---------------------•---------------•--•----•--------•-----------------------------------------------------•-------------------------------------------- (hereinafter called Principal), as Principal, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, with its Home Office in the City of Baltimore, Maryland, and duly authorized and licensed to do business in the State of------------ I NNESOTA________(hereinafter called Surety), as Surety, are held and firmly bound unto..._.__CI.T_Y___OF...C.HANHAS_9F_N,___MLNNES.OTA__-_----.•__________________ _ ------------------------------------------------•_--.____-_•_________-.__.--_-_------__-__._----(hereinafter called Owner), in the full and just sum of FIVE----fh10_0SAND --- AND --- R01-1QQ.-_-_-_----.-_-_------.----_-_-_-------_Dollars ($----- 5,.1�A0., QQ---_-), to the payment of which sum, well and truly to be made, the Principal and Surety bind themselves, their and each of their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. Signed, sealed and dated this------------------- 2-9 TH---------------------------.-day of------------------ - Q U L------------------- 19... 7.5.-- WHEREAS, the Principal has entered into a certain written agreement, MMKM)V*XMXMXMXMXMXMXMX `IafMXMXMXMXMXMXMXMXMXMXMx®1XMXMwith the Owner for-_RE.S_TQRAIIQN--- DE_..JEl. -LD_IM&..... AND LANDSCAPING WORK__ AS REQU I RED__ AT __.CMANHAS5Eti..REDl-1` IX ... P.l.ANT_,____________________ ------------------- ---- ----------------- --- -------------- ---------- ---------------- -- which agreement is or may be attached hereto for reference. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That, if the Principal shall well and truly perform and carry out the covenants, terms and conditions of said agreement, then this obligation to be void; otherwise to remain in full force and effect. WETNESS: ---......------------------ ------------------------------------------------------------------ (IF INDIVIDUAL OR FIRM) ATTEST: (IF CORPORATION) ATTEST: APPLE_ VALLEY_ -RE D-E-MIX,,____INC.(SEAL) >� k!'.•T.�-,iiC� (SEAL) FIDELITY AND DEPOSIT CO SEE POWER OF ATTORNEY ATTACHED N KLIN TTORNEY—IN—FACT C329—r2M, a 6s 180177 COUNTERSIGNED BY: MINN. RES.' A V T 611 Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND HOME OFFICES BAITIMORE, MD. KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corpora- tion of the State of Maryland, by JOHN C. GARDNER , Vice -President, and C . M. PECOT, JR. Assistant Secretary, in pursuance of authority granted by Article VI, Section 2, of the By -Laws of said Com- pany, which reads as follows: "The President, or any one of the Executive Vice -Presidents, or any one of the additional Vice -Presidents specially authorized so to do by the Board of Directors or by the Executive Committee, shall have power, by and with the concurrence of the Sec- retary or any one of the Assistant Secretaries, to appoint Resident Vice -Presidents, Resident Assistant Secretaries and Attorneys - in -Fact as the business of the Company may require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertakings, recognizances, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgments, decrees, mortgages and instruments in the nature of mortgages, and also all other instruments and documents which the business of the Company may require, and to affix the seal of the Company thereto." does hereby nominate, constitute and appoint John Kline, Dale F. Kline and Russell M. Shirley, all of Middleton, Wisconsin, EACH .............. 'Ts true and awful agent and Attorney -in -Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings. , . , , . ... .' . . . nA Tc file execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Company, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the Company at its office in Baltimore, Md., in their own proper persons. This power of attorney revokes that issued on behalf of John Kline and Dale F. Kline, dated June 5, 1974. The said Assistant Secretary does hereby certify that the aforegoing is a true copy of Article VI, Section 2, of the By -Laws of said Company, and is now in force. IN WITNESS WHEREOF, the said Vice -President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this ------------------- 19th-------------------------------day of.... ------.......... December--------------------., A.D. 1974 ATTEST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND (SIGNED) ---------------------------------------------------- G - M. __PE�!]�,.._,1R. By ................................................ �10 ---C9 GA PXNE R - (SEAL) Assistant Secretary Vice -President STATE OF MARYLAND CITY OF BALTIMORE ss: On this 19th day of December , A.D. 14 74 before the subscriber, a Notary Public of the State of Maryland, in and -for the City of Baltimore, duly commissioned and qualified, came the above -named Vice -President and Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal, at the City of Baltimore, the day and year first above written. (SIGNED) ------------------------------------ MELINDA T HAUS_, (SEAL) Notary Public Commission Expires-imly---I_,---1_978 CERTIFICATE I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the original Power of Attorney of which the foregoing is a full, true and correct copy, is in full force and effect on the date of this certificate; and I do further certify that the Vice -President who executed the said Power of Attorney was one of the additional Vice -Presidents spe- cially authorized by the Board of Directors to appoint any Attorney -in -Fact as provided in Article VI, Section 2 of the By -Laws of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. This Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Dircctorc of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 16th day of July, 1969. RESOLVED: "That the facsimile or mechanically reproduced signature of any Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed." IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said Company, this --------------------- 2 9-...--...---------•••..-•-•-•.day of.............. J U L Y - -------------- .�a . ----- F I,1419—Ctf. 196598 Assistant Secretary ^�,IpLUTIpN 0 1776-1976 CITY OF 7610 LAREDO DRIVE6PO, gpX _ C HANHASSEN . 14YOCHANHASSEN, MINNESOTA 553170(612) 474-8885 DATE: May 9, 1975 FROM: Building Inspector TO: City Council and Planning Commission SUBJ: Apple Valley Red-E-Mix Ordinance #47, Section 20.03 Restoration. in any district which is partially destroyeAny building located may be restored to its former use and y any cause provided that any such building which doesnotconform oto� use, height and other restrictions of the District in which it is located and is thus destroyed, according to the e the of the Council or some official designated by it, to the extent of fiftyestimate cent or more, reconstructed except ir in accordance withma y not be rebuilt or After inspection of such restrictions. the opinion of this OfficepthatathereRis lessxhan than 50� structural it is damage to the building, caused by fire. Sincerely yours, Ze Gerald W. Schlenk Building Inspector GWS:k May 8, 1975 Mr. Al Klingelhutz, Mayor Chanhassen Village Hall Chanhassen, Minnesota 55317 Dear Mr. Mayor: Recently, there was an article in the Chaska Herald, regarding the ready -mix concrete plant located just north of highway 5. 1 would like to add my voice to that of Craig Shulstad, that the plant is an eyesore, and should be relocated if at all possible. S acknowledge the fact that Chanhassen must accommodate this type:of industry, but question whether it should be in suco a prominate location. At the eastern gate- way to Chanhassen, its location and appearance leaves much to be.desired. Certainly the village has set aside areas where industries such as ready mix concrete can locate, and not detract from our community. Since` ry Randgaard cc: Mr. Craig Shulstad \jp\_UTIpN B 1776-1976 CITY OF CHANHASSU 7610 LAREDO DRIVEOP.O. BOX 1470CHANHASSEN, MINNESOTA 55317o(612) 474-8885 DATE: April 30, 1975 FROM: City Planner TO: Mayor, City Council and Apple Valley Red-e-mix SUBJ: Remodeling permit to reconstruct cement plant Attached hereto please find the following: Apple Valley Red-e-mix landscape concept, plat plan and April 23, 1975 Planning Commission minutes. Planners Comments: 1. Apple Valley Red-e-mix is proposing to reconstruct the damaged cement plant by adding color metal or wooden panels to screen the hopper mechanism that was damaged in the recent fire. One copy -of said improvement is on file in my office for your inspection prior to the council meeting. 2. In addition, the property owner is proposing to construct a redwood fence along the east property line; state highway right of way and landscape along the railroad tracks per the Planning Commission recommendations. 3. Apple Valley Red-e-mix has agreed to furnish the City of Chanhassen with a detail landscape plan, prepared by a landscape architect, to implement the concept as discussed in the attached. 4. The property under consideration is presently zoned C-3, the use of said property is considered as a legal non conforming use per ordinance 47. As you know the structure was partially destroyed by the recent fire. Planners Report - t.pril 30, 1975 - Page 2 5. Restoration. Any building located in any district which is partially destroyed by any cause may be restored to its former use and physical dimensions: proveded that any such building which does not conform to the use, height and other restrictions of the district in -which it is located and is thus destroyed, according to the estimate of the Council or some official designated by it, to the extent of fifty (50) per cent or more, may not be rebuilt or reconstructed except in accordance with such restrictions. Planners17Recommendations: Issue a building permit to reconstruct damaged building per Planning Commission recommendations, withhold occupancy permit until property owners submit detailed landscape and screening plans to be approved by the City Council. Regglar Planning Commission Meeting April 23, 1976 42- wi th the preliminary develop�,;*nt plans as outlined in Section 14.04 subsection 3 cNtdi `z � Oneo upon the su9ges ions from the Soil Conservationist, the C 1 ty Engineer, and Ci ty P l anper. Sill Schaelll stated he feels it- is a good plan. It poses no s roblems fj-o,;''l a dr"Eainarie s an point, a Sanitary sevier standpoint, a road standpoint or provision for water-. ! Chairmarl aslked the developers to consider concrete curb alld gutteL' in th'Es pr'oposaj. panning Coi?mrission rrtembers Ifc`re polled as to their feelings or, the paoposral. y N .,-aer a I would e n.-ourage than, to proceed. With the economy as it is today tre have go* to get back to the basics. Hudson Hrl"le0a4k m I like it so fur. Jim 1011el ke -d I am ill favor of it. TOP! NoO ,an - I ads in 11 tWor of it. Mal MacAlpine - I agree. Dan Herbst - I th-Ink it is a good pla;r aria you Can Proceed on to preliminary development Sian. I .would like to see you consider 'those rolled concrete curbs. 1. e Ought to talk abort scrae lighting. t310f rARLSON - LOT SPLYT: Mr". Carlson was Present. The proper'tur Is located sout'n of Z�',q R, FY:ERi f.._e_ar^ Ci,11larr f. e ieidy L. ft C, SciryrriGt's Acres. TIiL;Me is ar, exis :trig ►7':)rr0 0 V I 1"his %" shaped fivo acres. Sewer is available to the i%) art . M' S p p y Ctf . Caa 'i S#?n would '1; f<e to spllkit the lot into two Lois. A molly ion t,;tas invade by Pal Msc:r'ti plate m-id seconded by Tom tioonan to conduct a publ -j- hearing on the Gary Carlson Eot split on Play 14, '1975:, at 8:00 p.m. under tt-,p proovi,ions /74F' tJ��eiInance 33. �Iotion unaliiri:ously approved. APPU� VALLEY Zi^iLSSn 1^�'aS ,q�'E:SE.Yt{: tta AtS40aa pi�taS,.FJY" si?iait'l�f, a: i .." ._,Pa;�w fS i � _aal non-°c:cnforrring use are property zoned C-�3. The pi�,l�t s%; Partially dastr"oyed by 'fire. Pair. Er�'icscn stated they plan 'to cover the stow^are ,ins and ra:Pplace a por'tlon of the roof that is over the garage. Fire dispatch of"Ice wl l ; not be replaced. All dispatching will be stone through the home of f l ce In Appi e V a'! I'". she i3a'i :'i't� lit stated he would like 'to see the mina zs researachad to find out wiaat r^e:eaf' s^ert�^€�'ts were initially placed on the illant. tie asked Mr. Ericson if they W-o"u'd, b to cor""a up tri tiT some type Of plan v'i a fencing and trees to do some s ci,een i rag of the vehicles as well as. the northern i7Ctllndar^y. The City ought to loot. at tt;e st:orilge a;= aggregate. ir, Ericson stated they t.,ould be mitre tr an Drilling to put svne plantings ,ilojig t;pe hri � iarray and along the railroad side. A riiot'' e on was made by Dan Herbst and seconded by Hff;fison €iol 1 �`rit7ayl; to 3"eti:oistiiSnird to "121c Col'unci l that a buildina pc;aya'lt be apl:tr oved subject to the genel•al specs f iczl't'1tp:;fi r;ha`t tile a;pp 'icaant as :,arNfiitt6ci. That he applicant be allotred to p4•oceed with his der�rc'!'ii'yQ l aan,cl r?Ccjns truc t i n and l'(:mocel : n g but that an a�reemient be entered into by the� t u1��3 s'i i.t"Srl a'n4 "'Ahe City or Chanhassen 1'=heveby the tip13d:aK.'i':?ape plan and possibly sur'.faS:ing that and »ab 1-c;reen—i ng V�i:0 d be �:i vus Pi'her by bonding i ng or a coo tra ct Com pleted 0+"*r a par"'ioa"; o 1;iBSi? 1'rh t %it �rt3v i d 1)e btC;�'t?�1. Z0 b 0 t h I Ci ty an?i th0, app,l i 4adRr�"t a'nd '";hat 'ai10s PI i ii4•i3ugll� back 0 thC.% PIic�.inDiri ►.,ty;r�rlAssion and Guano' t"ipi° �'i�S�i !'' � ri��„ �C?:3aiC�8i aNDTO s�cr a . Of sill VlS' ble sides, �;#]rea, sides, .SalUr"NICIng of the zai oa; c".i31� Blii'; �'1�P i;1 rjr staining of all ►a>~€litines �0 have ,++ � +wF� � '� ' ws' a e ,a 1!r., iii ;i t (} .� affect tf l . �4' t aw rp"s' or'igk"Ial Zoning Or conditional use permit Ne, accomplished so Ellat all those -DI'dittions are satisfied. Maa:ion unanimously app.v,oved. U City Council City of Chanhassen We have enclosed a Boundary and Topographic Map for your information. In studying this map, you will note the railroad right of way is within eight feet of the Northwest Corner :of our Batch Plant. We agree with your planning commission that every effort should be made to landscape this property. However, we want you to know varia- bles that are involved with this property. We suggest that the following steps be taken to enhance the property: A. At the present time we have a ranch style fence running East and West on the Southern property line. This fence will be repaired and extended to the Westerly edge of our stockpiles. Evergreens will be planted, starting at the Southeast corner of our property and to a point approximately 180' West. B. We will clean up the entire northern property line but will not interfere with the railroad property. We will plant trees and shrubs where they will not interfere with the railroad or our building. C. After remodeling, we will paint the entire plant. D. A strict control will be maintained on our plant personnel to see that the entire area is kept in a clean and orderly fashion. I herety certify th,�t this I. a true and correct representation of a survey of the boundo following described property. That part of the 'Tcst t'aIf of the Northeast Quarter of Section 13, Township 116, Ra 23, and that part of ttie northeast Quarter of the 1ioIthe-st 9 u a r t e r of Section 13, To ship 115, Range 23,. except roads, more particularly described as foIIov)s: .1 pore•(' 1 o f l and s it uuIt, d u i t h in flit corpnra t o I iIII i t s of t he I i l l agc• o f chanhassvn and being located in ilrt' ,\orIItc'(is I Quorirr of 11)i \nrihr,itsI Quirrtrr of 5rction 1'i. 1'uuxship Ilf;, Cuntc, 2:3. tl'rst chic•h is aIli it tit to the I. of -uuv lino of flit, f•hic•crl,n, 1)'i/Itaitkcc, tit. 11rrrtI tl Pacific Rail - road CoIli pan' rind is rtnrr' parIi(•ular/} Ili, .sc'ribcI/ as fn/lntts: (•nIll mprtc ing al the• point of intprsecIinn of the Itesl iino of said \'orlhrusi QitarI r of the ..\vriIte(IsI QttarIer itnd IItc• tit osl southerly - ri,)II-of-uulitre' of ,aid Railroad Compait)' urtd running then, %ortheosIf,rIv alnil- It aI(I rlghi ol. v a v liitr• a dislanc•r ref 120 feel more nr lass, to the Sotrlh iinr uh SIitIe Trunk 11igItuav Sn. 5; lhrner East tr/nrtg said Snttill I inr rI distance of 35 fret more or less, to a point nu .aid line of .aid 'frank 11ig11i,a'N' \o. :i it ItiuIt is distant :35 fe ct ,that measured uI rii;hl anglr'� f coat the' said Soullr - rr l Y l i it o f .sit id I?a i 7 road r igh t -o f- tr (I ' v ; I hell('(' Sort 111G eJI el'i �• al nitg a i i it Para/IcJ fu .;aid Snitlher1� tin' of saiRr1iIro(Id right of- I:(Iy. a distant of 122 Irr1, more or less fo Ike sai(I ItrsI line, of ;aid ..%orIItrast. Qtt(III r of flies 1r.rilrrusl Qurtr tr r of said Si( t inn la: thinc r \oriIt along t/Ir ,aid !tr•sl iiite of said .\nrtheasi llurtrIr,r of '';1rihertsl IlunrI,r 10 1hc point of lit,g I it it i I? l'nrrtic111, inc; rtt 1Itc \orlhrrrsI tomtit of the' orthi, rsi Quarter of flit, No Ili r.nsf (luarirr I�Ii I'! )f SE 1 41 of Se lion 13 101,1rslt11) 11(;. Rartgp 2;3 It' (•.•<t. 1 It r n r r ') n u 1 h 7 l; . (i j e e I t o 1 11 c' i it i r t s•• c t i o n o f t le, c f' it s t l i r• c n f s re, i d \ n r t I, . r.r'sI Q11arIc•r of lhr \orIhraS1 flttarIvr I\It 1 I oI XL I I rind Ihr Snath(.rI'v right oI uav lint' of the I'll icago. 1;ilcanh'pp St. Paul l Par•ific k'aiIioud ('nill IIolly. said inlrrse •1 ion bc•iitg the• itc•tu(rl 1)1)inl of beginning of tht- follnuing dcsc•ribed p of) erIY: thetic v c•ontinitirig south alrvn said East l int of said \nrIhur•sl Quur fer of the .\orIItr(IsI cjuarIvr t\h 1 I of \'11 it!)"; o .f eet; iItertce I/ I e c I iitg to IIte right al. an (Ingle of 59"17' urtd rutrr)ing a 01isIa11c•e of 5s().[I feel fo as irnil ill oltulit erlt: Ihcncr itvfIvvting to the tIte right uI un ang11' 120"2Rand ritnrring a dislancr of 172.2 fc:r,t to !hc Soulhrr'l1. ri.,hI -of ua� lint• of suit: liu7lroad lIteit o Nor ll!i'(1sIerIy along said right of uaY 17nr 5,95.:3 feet to Ih,• actual point of hog irill i»l;; c-rn- lrriitini; (Ip1)1itx7lit (Ite1 _r 1 '2 (1c•rc1s of Iall d, more nr less Except that part thereof acquired far iiinnesota State Ili;hv;ay no 5 described as 1 Southeasterly of a line run parallel with and distant 100 feet WarthwesterIy of the Iowin� descr1heci line: ('Iorc a point ore fire Itcs1 lint of.,Svc Iioit 7, iorrnsIti1) 111; N''itrIIt, It' artgr 22 {ic.sI. (Iislrtnl 4,2 fv('t North of Ilrr Soitlhl;esI corner thr•rr'1,1, run EasIvrl)' (ii an artglr of Ftl"_r,S'I ItiIIt snit/ tr•est section line tmeasrrrrrl front rrnr11) In east I for a,tit1 Ipc't I_o !hp point of het iititiit, of Ihr I inr• to be de, sc rJhrct; iitrltce run IV erl' (Ilan(; the last drscI ibrd r•narSt- for 1OO c• fe1: l/tritrp d e f I v ( I to the 7tf t on it tin chord spiral c•ctt'rc of dec 1('11sinl; rudiIts tspir(Il aitt;lc• l":;O') for 250 feel; Ihrnce t/efIv(I to Ihr 10fi nn a _" ,()O' t rc•ulur c:urre rdellu angir 27'21'Iri"1 for I.i(;7.71 fo('i: Ihertc1, drflcc t to the lift nrr o It rhorcl spirol cnrtr of iit(-rertsiit, radios (spiral angle f2 ',0'I I o r .50 f r v I Iite/Icr• on Iait;:('111 io said rune jor 500 It,'e1 arr(1 tIt re irrlit iititI iitg; tr,gcther with all riirt of access, bein- the right of in'ress to and rLress frost that norcia[I of the ahove described tract, not acquired herein, to Trunk !.i,1;way No 5. it also s1,ons the IoccItion of .I i visible' encroachments, if any jr)d the loc(Ition of ,!11 buIIII'r,lr thereon, if ary, from or on s'uid l,�nd, sr;rveycd by me t� I . ,Ith day of Februory. 1968 - r ,gyp\-UTION A, 1776-1976 CITY OF CHANHASSEN 7610 LAREDO DRIVEOP.O. BOX 1476CHANHASSEN, MINNESOTA 553170(612) 474-8885 DATE: April 21, 1975 FROM: City Planner TO: Planning Commission SUBJ: Apple Valley Redi-Mix remodeling permit REF: City Ordinance 47, Section 20.03 Background: 1. The property under consideration is the partially damaged Redi-mix plant located on State Highway 5 and 78th Street. 2. Existing Zoning: C-3 Service Commercial 3. The property and use under consideration is a legal non -con- forming use as per Section 20.03. Petition: To rebuild the existing redi-mix plant according to the attached site plan. Planner's Comments: 1. Ordinance 47, Section 20.02, states: "Any building located in any district which is partially destroyed by any cause may be restored to its former use and physical dimensions; provided that any such building which does not conform to the use, height and other restrictions of the district in which it is located and is thus destroyed, according to the estimate of the Council or some official designated by it, to the extent of fifty (50) percent or more, may not be rebuilt or reconstructed except in accordance with such restrictions". In other words, if the Council determines the damage is less than 50% to the structure, the owner of the damaged property has a right to reconstruct the damaged use to its original condition. ,IOuUTION z. 1776-1976 CITY OF SHANHASSEN 7610 LAREDO DRIVE9P.O. BOX 1470CHANHASSEN, MINN ESOTA 553170(612) 474-8885 DATE: May 9, 1975 FROM: Building Inspector TO: City Council and Planning Commission SUBJ: Apple Valley Red-E-Mix Ordinance #47, Section 20.03 Restoration. Any building located in any district which is partially destroyed by any cause may be restored to its former use and physical dimensions, provided that any such building which does not conform to the use, height and other restrictions of the District in which it is located and is thus destroyed, according to the estimate of the Council or some official designated by it, to the extent of fifty (50) per cent or more, may not be rebuilt or reconstructed except in accordance with such restrictions. After inspection of the Apple Valley Red-E-Mix plant, it is the opinion of this office that there is less than 50% structural damage to the building, caused by fire. Sincerely yours, a - Gerald W. Schlenk Building Inspector GWS:k .PPLE VALLEY RED-E-MIX, INC. CHANHASSEN GENERAL SPECIFICATIONS 1. Remove and clean up all debris. 2. Reface and enclose aggregate bin area with ribbed steel facing panels or rough sawn lumber. 3. Replace roof joist and deck over garage where necessary. 4. Reinstate garage area and aggregate bin facing. 5. Replace and repair overhead garage door. 6. Paint exterior and interior. 7. Roof area over aggretate bins - steel or wood. 8. Replace all electrical work according to state code. 9. Replace all mechanical work according to state code. 10. All structural work to be supervised by structural engineer. 41 1t .:•.t ✓371a.1J .i ....1 �'". Z'_ t�']�3'.�..- � �l vr.7.1 Vi�,; S^L: S. Li�.RI `a �'A��'•`.4.:-. �:� 1t.�,L��."�..t i± :.i. /> +i yam' �`+� � *y'� bS.i. is �3..J 4� - - w' �wJ 4 y� ..t.�.�.s.�..rr �•�_ �+.-a+�+�•..•rti-.yjw.wa-�..a�..•vr+`.-n�..+{ � ' •'+.�?� 2.., � S.'. �:3 1^''�i' �.S '�%.r.. +.. Aiy u ice. 7'��� �:7':�i�. �i(.' .7. may+. i d �t: ti'�� �'n L� y .� i? �. ����� S.S��}.:-.t7 rj Q ii rr� fj'�t�.sw'�i k3.ic3it _ ?' =i. f r' _i11'S'y ?s- de Cipan m—)a•C a w�ie �.P'se b'°.i a l:C? ax1 `tT ^> ^ a 6-1a aa.o is a n t� d 1 'w:ou.,r:_v r e_ . .y..'L o L�: �.��.�.c�.:a Sil,•� '1:-� S•.y t` �.'n f l : `'-* to the c .mac. + a e> i.: � y�.. C,a ,I n.� 3 •i a ♦ n �; {, ..?'+ :>L ^vyi��d Ji:A.il.�y e��-e'`a b./y •C� y ^w �1.�: ."}. i�ii ry y� Fr'.i Pam. vj3, y� yyr��73La V� coat.j -Rac iil4. d.•` 9 ii 170 v_40n by Dan k-i+' _"bs t andj-,tan���N{j C'u%?m..ta:_tcy:t.on r`v'comm- and �+�y l� r3 ►'. sue_ _».r County x r 9 g •: :r • ��. V l""t. 1, l..L�ba b�'� .4'.L�S��S Plan co .3 4 -e SUTASCw to t�'•X.� s5� a�rJrf .A Of: 'f�.iiM � iLit c?i?a d� Tsui; i 3:�3.f3Y' a h nu-I"�Ose O �1:z'1��'��3~-;,mi l,.n be to ive ap the Planning ter• ^t e r y q+ f .L . .t d Y j Y K.:i' co .ax'2 .. y �.:.3.• ..7. ,�.,.�3: �a�w�s�..:sa� tir �t� t�z".��,.�.'.S .'3:s: �;.�1v proposed s >> f-= Even if im S t-ozaa wa -a,T.o t z>�'aL� by -his 4' a w: A-Iotivn una:::sa?{;+.,°:ply apbJCove..d.i L' OT_lT3T OPOLIT.1'AIi GUIDE + POLICY ..,,.�MASMOpr7 �.� .•.i...i.�-.� y� ►iJdf�,�L7J �.�... -t x: vTh Planner � rat 9 maeV`i.-Iy Com-fte ?ate with a a`onzinsc s -r be j�omvmzded to '.he C=l %,, Council zo they cap. a�3pro.ga: `.•L to �1 pass ai i � ' �'s'it� o•.' i:d J :. +;',i "i�.l:'� is✓':'i; '"'"�,-.,3 that at were made Y t%`� '".. ;7�'- c:c•, .n •-..r� i':.?�siM e7 �}.� r"'�� le i .'. C� ro ;^+ i• +� � � the r �1 �"i.'�o �i•,r�•il L?."s3 �..il•..: elcw p i+=3p_-s �_-'C3 -i l f.!.'y.r-g. I znier s4. raL.'S-i if i. tile nues..Jem.u+ at the _lrJ .t.c hec �:w .Lng , tit trey Wanted r,"O,7ya ,y"��y. V...iSe cal v7}.'i3<nTda v�� •�'c�F�t�i �Y3:�s"? �ti�:i �3i:. >fi?��^. 1 Buog—_iis, at Bil - iJ'w^.F.Ioe l g:% aAe� he F+4 � -n Y 9 ti.. .� Y:3.z:=.; :>s. `r Lta c'R;� ' �aA �2r rg cL� � i� 'front':C?> o}C asar3 ',L:�=da vir1 'L,ai z a' n front xt;.ia T)s�p_asr ,y ubl Y� on, is the Pl:a iml_ng l v:"i� .;5 ".+>:L 7'�iC3 I 1 iS�0=0 CrIven k-Wo . rate a tv :,. n r �]� �y �'v..w:2 r'3L �: �, i -,»a '� a,y .>..].i�. ti.J)a.rv���. 9 � ."�. !.J 4ia'+,."- V.�Ivj ''.�_.>iL.a� e. the City Court .1 r:.3v-a ­h.�ci : 17bY Putting0-ha x0e back. �. iS3n .t t�y�li3 ,� .�ws a. Ci .-at he &' na- B11 1 Sa-.'+3.i i !s �"J? tba-t, Whey Ca,_=.o Sn= nd, any tea 'v^a: Plans becatalslathey do jUfa. ;Mally to t-he namI. City Ca ,icil e. eve' -ing ''tom'''.. .at k 'eh-e Council t'D -`�riy Y r7e'�3Yv** Li I3ii , a'si Ss'ci xnaua by zuazon Hallxs: s� ms.�y,. r7 by �' �" e 7 M ' d b �,.� �S . it!' O-_z:.�.ac',.zl_-a 33 }�-�a y�•y� /q� bL.% 3:,5'S �, ��'3��>� d*if'i �+a�.+y�xl,l�a^. }^-, `�:i�.'�I b.yny i"�`�i3`Jy ' p`-a}�'� � �- y.ri �-. •. o•. �� MU 0~u ' `., �'3s J !"� aS \ .b6 t-� ieo he c`iiaganc-1-2. _Izat 6.:ac•li.. cr, O'.�.a. wD1.a Pete—,40huq pe%mdJil g the City irs."•c"',le'vance 1b �� =3 �a`v._?C.' �3? ana a'ovn .r`litS eus ; Ii-el:I ar 224 :i-'neer' T� �"ek Orr :" .r. 'W3.'3Y' O rR-.J'j:wC, TA�' .[.t,'t •�'riTir..n 'T.'G'+-,,3d in E.''.�a'...i.:S:.i aZ�.!.�iZ..r.�s.�.vy •i •� :' i}. v••" a i-t '"' C" -„ u .�?,,,t .IaC:.:�� ��.L;'^..'.f. 3.-� ��.:i i':'.C='_r'�:5..- and T:Im CE33..X d. VATU_ 20- 1,1.',l.1b .c ::a lri. 11# a Mr. '.e, ,•'7'i .Fr ho L. �U.-a�.3. din :iOnn it t.i.. a '-'G'on-$' 0rim-Ln' i mse . »T:�h{ pi anm.;vv a%at:0 i.l N? 7 L, y.Fti•:? is r° °'"r 4 :;7:3:1C'.:�� �.`si . G^±ws,'1'1.L].t'sas''.ItJ:t ;13 %4 !4-har h:? can �?.:�5?��� ��r'l� '��1 � �J`.�l � � � s, i�.'''.?�!•. fs:1• I L:r'lri ifiil .;:i:i{: j I ,. - LL tr inl.l i'.r11`3.r GJ, 1.%15 —2— .! •'•fT -'?:Y 4 '•7 7 c ^a �!4 '•+; a) 5 f ut" `; C4v".•riioy� � D Su i ;J,J� :> :,'� t,i, +i i7: @,i�:2. 's�af� ... _ +�;J:l.,,j�I: Ps.:ai3S .S v� i'iri .d ►:t :Tc„ /V.1 4.��� .?�£..,�c.�a3: .) — .- fr iian'}! },. I o L d 111;7 "L` a Smiie 5USa'm t'he Co 1iSv"wattViJ � i,•a Cit gSr ws( City ice:anny. L.?i [ i 71 s.h,c7a f Ist:a.-ted Ii-a f, a 1 s i 1 -1 •rs a E,•ooe, par, ri: poses no drainage S f 4d:i drainage•7 i. S.li:ar: �'i 4 41 Sa,11 `a SL.:"ier s'v T11dpoi S.a i' a 7 1 ; 1 1 •pzr t'^ 9 opl for water. e G;'i ict :...d t;a.. L•`e:v,.),1}:U,S to consid2r -cia?c3�''t4 cueb s3t?c'i cI.;b.,,aE' in thIs p:op:3sai,. M :irt �g }',-a'1,,�• 5s i 't e.-S •ar>, ply.., •. a s to !h _ i rT eall { n w. -he proposal. S Ste•, •1�': fl. v�i..�{.i�3.�3 t�%ta Itt.,iii.Jv, I�CYt,.. i)1 iG. �. %(? viiL 7 �LL.S ii S' li P.r,..S,v ... 1. a Tv- t as ) r d i.l.'.j.j� th +� s r - .:f?'"„% � 'li3=,i�� � :7.J: C;�:. 's:i t:,;,i? �.© i�'v�i�Ct:, its {.{i Gt.t? e".'.',.: ' � e, F:a i::�`.'lav have pt to 3;?:, back, ;o {;fie L::s ks. F 4�T i•j I7iJ On C.ii7 esS r"t � :M il tt �rA :�4rii lii t. Mal l S uacr'S 1 p'i ne — I Z `j ea. liar, H(`n I�nz t " I i lii �pC . 9 good 3` and TS r�,1 y-C q �' Iirt t al n'• �7• ; C a �v U Plan A..:f:.i :�[.. uai 'w1LY"rvL ills C.``3 3y' I-* IIF3 :� .,�;..a�i %ii tt4. ,s..F' I a.- , I ;'li ul d lflka -0 Sce yetu consider thios . rolled concrete- c_ar bs, -We aest' ht tw t ".zk about s�:;f� l te"hti�'n � n•-i::-- �P.UI 50;1 { SJ 1 _eP7.T itJv, iJ}5 3ieC e-,j va Ina propertyd'3L CYsous.'ti .rT st>-aet near. «�.� 1 �d:, Lot r , !Schral 's :..a,.s. 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Y ' ) �� if i.+V �� E,• Cam. ,�t���s �ta f�. i?..4 :s'.• ;, i y Of Chanhassen r';,her Jy tile i yin is­,apa plan aria pss 4?? 3y surf l i. i Og ';;{':,--'fit: ar"!a. r' r^.�;'' t'' it,i F'+ ; r iz i t. c�.��.v i �.; d `�'t Le 3 C ii: a' +3i v't �`•� .. s i:! W!' t i 3 1 {rY ,t• `3 a+ -�' C' -� 4.^ , • ` a •i, .t t s�! .3* e'f.�a .t?QuJs C5 to 1''�th LsIC.. ✓i y l.n<Z j t1"'a a ;?'�1v l:; zii:wl=. �a? x`i ZZi^ 2:>; a,I ; -: i:�I 1:'-' �,:i�?'• ? 't•: C:'�,l'?�';! = •,• "•� psi �r„ c ^sTn1 rva:;2» " :;i �.fz i'Ps- '::1F t +r'f� •3 s A 77 v sY jC�.t ::-S ia�i ee Ctt^s' `^ti IN: i f ..i1e .I Ft'J C 'a t V f• L: ? 7 .,1 u 3 i s i! :f. 1 i t [, !.'-a i'. �r s j O f�Y ,1_E Sr1•;ti +,%:�{` ;tt%:L: _�ui: �li�.� orF���rd i,-,!n3? Use if^ Z.i;Y _� i��.4i.•. =tta.':[ s;,E' T +1 a.' �..� ,:�onS ` .•a s .7,tt,.1 ied.. t ;3-i.i o n •,r•• oa_; 'j '.pni-�P�:1 Chanhassen City Counc'-) Minutes, May 5, 1975 1 1 -4- 1 communications from his office, the recommendations of the U. S. Soil Conservation Department, the Chanhassen City Engineer, and City Planning Commission and the City Planner. When this contract is drafted it be brought back for final approval by the City Council. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. APPLE VALLEY RED-E-MIX BUILDING PERMIT: Mr. John Ericson was present: The City Planner discussed his report of April 30, 1975. Apple Valley Red-E-Mix is proposing to reconstruct the damaged cenemt plant by adding colored metal or wooden panels to screen the hopper mechanism that was damaged in a recent fire. They are proposing to construct a redwood fence along the east property line; state highway right-of-way and landscape along the railroad tracks. Apple Valley Red-E-Mix has agreed to furnish the City with a detailed landscape plan prepared by a landscap architect. The City Planner researched passed history of the plant to see if there were any original -conditions placed on the property. He found nothing as far as landscaping. No official report has been receive from the Building Inspector as to whether the building was 50% destroyed. Mr. Ericson was asked if they were planning on relocating. He answered that to completely remove that plant and start up a new one today is just not in the money market. This plant was less than 50% damaged and we feel we can go in there and clean it up and we will have to do rewiring and go through our batch panels. We will have a good sound physical plant when we are done. We will -landscape it, work with the City, and keep it clean. We have looked at other sites throughout the western suburbs. With the money market the way it is we -do not feel this is the time to make a move. Councilman Shulstad - If there is one thing in the Village that I have received more complaints about and have identified to me as being an eyesore it is that plant and I would love to see that thing relocated. I think now obviously would be a time to consider that. Are you prepared to discuss the measures you will take to not make this an eyesore? John Ericson - We have said we will come forward with a landscape plan fo. approval by the.City. We are -willing to take and post a performance bond showing our good faith in that we will do it. We will repair the roof over the block part of the building, enclose the silos, the office will not be replace We intend to -paint the whole'structure. The existing fence on the east end of the property actually belongs to the drive-in. Should he want to take that fence down we will put one on our own property. We. -intend to clean up the north side of the property but not interfere with the railroad. The landscape plan will cover all these things. A motion was made by Councilman Neveaux and seconded by Councilman Hobbs that if the Council gets a written statement on the question of whether the building was 50% destroyed from the City Administrator or a qualified representative of his choosing, the Council grants the building permit to Apple Valley Red-E-Mix for the restoration of the building subject to withholding of the occupancy permit until an approved landscape and screening plan has been submitted and that the conditions of the Planning Commission's recommendation of April 23, 1975, be adhered to Ghanh_44sen City Counc 1 Minutes, May 5, 1975 -5- A ` by the owners of the ready mix plant. The applicant provide a surety box to cover 110% of the cost of the landscaping and screening. The followix voted in favor: Mayor Klingelhutz, Councilmen Hobbs and Neveaux. Councilman Shulstad voted no. Motion carried. STATE WIDE AUTO PARTS BUILDING PERMIT: Howard Kaplan, Attorney, was present requesting the Council approve a building permit to erect a But1E type building to store auto parts. The outside of the building will have a wood type appearance and be painted blue. The Planning Commission recommended denial of -this building permit as this is a non -conforming us Mr. Kaplan reminded the Council that approximately one year ago there was litigation against the City. As a result of that litigation a settlement agreement was reached. Mr. Kaplan read paragraph 11 of that stipulation. Mr. Kaplan stated that all requirements of the City Ordinances have been meta The building plans are also in accordance with the state requiremen and that this Council has no alternative other than to issue the permit. The City Attorney recommended the Council refer this matter or that the applicant be referred to the Lower Minnesota River Watershed District for a permit before the Council consider this matter. A motion was made by Councilman Hobbs and seconded by Councilman Neveaux. to table this matter subject to State Wide Auto Parts getting, approval from the Lower Minnesota River Watershed District. The Administrator felt that tabling as such was not the only alternative but the Council could act that it would consider a building permit subjec to the recommendations of the Water shed District for the site. The City Planner had two levels of concern. If they go to the Watershed. District they should ask the Watershed District what mitigated measures should be taken so that this does not impede the flood flow of the Minnesota River ' and obstruct the normal course of the water. The Planning Commission was probably in error because when I made my oral report at. the Planning Commission meeting I had no knowledge of the court decision or any agreements the City had entered into. It seems appropriate in light of this recent court decision that this should again go back to the Planning Commission with statements from the Watershed District. Councils Neveaux withdrew his second,and Councilman Hobbs withdrew the motion A motion was made by Councilman Hobbs and seconded by Councilman Neveaux that the Council refer State Wide Auto Parts request for a building permi- back to the Planning Commission. The City should have approved recommendations from -the Lower Minnesota River Watershed District Yo present to the. Planning Commission so they can come up with a complete recommendation to the Council.. The Planning Commission should be given a copy of the agreement that the City entered into with Valley Auto Parts on March 15, 1974. The Planning Commission should recognize that this particular parcel is in the Lower Minnesota River Watershed District f.loodplain and they should be cognizant of this when they discuss this particular building permit. The.following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, and Shulstad. No negative votes. Motion carried. CARVER BEACH: Bob Petersen, Tim Stone, and Mr. and Mrs. Donald Nelson were present. The Nelsons and Bob Petersen have gathered about 80 signatures on a petition opposing the proposed sewer and stater project. Mr. Petersen asked what procedure he should follow to submit the petition to the City. Mayor Klingelhutz told him to turn it in to City -Hall and the Administrator will put everything together for the Council.. Carver Beach residents will be notified when this will be discussed. rei Lion to ret�ament of bonded indebtedr.' 's. 5. The Council consider the proposal as a conaitional use permit governed by Chanhassen Zoning Ordinance. 6. Chanhassen adopt suitable controls on access and surface water usage on Lake Minnewashta. 7. The Council be concerned with future land usage in the peripheral area adjoining the park land against such zoning usage as might attract commercial or service type uses on the fringes of the park thereby detracting from the residential neighborhood, park, and open space area. 8. Chanhassen and Carver County in harmony enact such ordinances as will jointly and effectively govern the management and control of the park. 9. Submit the proposal to both school districts for review and comment 10. Ask the City Council to study and be cognicent of the impact of a regional park to the City of Chanhassen as contained in the County's submission of July.14, 1975. 11. Consider the policing of the contiguous area anticipating that there may well be an increased need for additional policing in the area. How is that to be measured and how is the anticipated additional cost to be shared. 12. The Council to give consideration on how to control the access to the park from the lake. 13. Security of the park and definition of the park boundaries. 14. Amend the Park Ordinance to accommodate the park. 15. Consideration of a bridge or tunnel across Highway 41 to tie the park together. Resolution seconded by Tom Noonan. Motion unanimously approved. The Planning Commission is very concerned with water surface usage on Lake Minnewashta and would like a report from the Lake Study Committee. ADMINISTRATIVE PROCEDURES MANUAL: Planning Commission members have received copies of the manual for their review and comments. Members will discuss Section 12 at the August 13 and 27 meetings. APPLE VALLEY RED-E-MIX PLANT: A motion was made by Jerry Neher and seconded by Torn Noonan that it be known to the City Council to refer back to the Planning Commission minutes of April 23, 197,5, in regard to the Apple Valley Red-E-Mix Plant demolition and reconstruction that the building as constructed does not conform with the plans that were presented to the Planning Commission or the City Council. "A motion was made by Dan Herbst and seconded by Hud Hollenback to recommend to the Council that a building permit be approved subject to the general specifications that the applicant has submitted. That the applicant be allowed to proceed with his demolition, reconstruction and remodeling but that an agreement be entered into by the applicant and the City of Chanhassen whereby the landscape plan and possibly surfacing that area and screen would be done either by bonding or a contract completed over a period of time which would be agreeable to both the City and the applicant and that those plans be brought back to the Planning Commission and Council for final approval.. They consider the screening of all visible sides, three sides, surfacing of the area, and uniform painting or staining of all facilities to have a harmonious affect there." It appears that none of these things have been complied with. The Planning Commission recommends that the Building Inspector be instructed to issue a citation to the. Apple Valley Red-E-Mix Plant and if not the Councif inform the Planning Commission as to why this condition exists. Motion 1 animously approved. Planning -Commission Minutes July 23, 1975 -5 A motion w--s made by 'Vivian Beaugrand and seco- ed by Tom Noonan to adjourn. Motion unanimously approved. Meeting adjourned at 1.1:15 p.m. Barry Brooks Clerk -Administrator It .Regular City Council Minutes August 4, 1975 -2- VACATION OF A PORTION OF LAKOTA LANE: RESOLUTION 75-20: Councilman Shulstad moved the adoption of a resolution to vacate that portion of Lakota Lane that lies north of the northerly line of Lot 5, Bluff View Addition, Carver County, Minnesota, as described in the public hearing notice. Mr. Maynard Happe will pay the escrow account before this is filed with the County. Resolution seconded by Councilman Hobbs. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, Shulstad, and Kurvers. No negative votes. Motion carried. MINUTES: A motion was made by Councilman Neveaux and seconded by Councilman Hobbs to approve the public hearing minutes of July 21, 1975. The following voted in favor: Councilmen Hobbs, Neveaux, Shulstad, and Kurvers. Mayor Klingelhutz abstained. Motion carried. A motion was made by Councilman Neveaux and seconded by Councilman Hobbs to approve the Regular Council Minutes of July 21, 1975. The following voted in'favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, Shulstad, and Kurvers. No negative votes. Motion carried. A motion was made by Councilman Hobbs and seconded by Councilman Neveaux to note the July 9, 1975, Planning Commission minutes. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, Shulstad, and Kurvers. No negative votes. Motion carried. The Planning Commission requested that all members receive copies of the Council minutes. The Council feels that only the Chairman should receive copies of Council minutes. He can use his discretion as to whether all members receive copies if there is something that pertains to the Planning Commission. 11 A motion was made by Councilman Hobbs and seconded by Councilman Neveaux to note the July 23, 1975, Planning Commission minutes. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, Shulstad,_ and Kurvers. No negative votes. Motion carried. The Planning Commission is quite concerned about the Apple Valley Red-E- Mix Plant. Councilman Neveaux asked what action the Building Inspector has taken. The City Planner stated that the bond and landscape plan came today, August 4 and for the most part it does not conform with the ideas the City Council had in May or June. The Building Inspector has not issued a certificate of occupancy on the building.. The Council would like an explanation from the Building Inspector. The Council will discuss this further next Monday evening when the Building Inspector and Zoning Administrator can be present. A motion was made by Councilman Neveaux and seconded by Councilman Kurvers to note the July 9, 1975, Planning Commission Public Hearing minutes of the Sorenson Replat. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, Shulstad, and Kurvers. No negative votes. Motion carried. r A motion was made by Councilman Shulstad and seconded by Councilman Neveaux to note the July 9, 1975, Planning Commission Public Hearing Minutes on the Louris Rezoning. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, Shulstad, and Kurvers. No negative votes. Motion carried. Special City Coun,_l Meeting August 11, 197P _. lower area in Greenwood Shores would have to be served through a lift station on the park property and pumped into the gravity line. The eight inch watermain would be extended along Powers Blvd. to Greei Shores. They have provided an eight inch stub under Powers Blvd. to connect in the future to Carver Beach to provide a looped system. The roads are generally 24 to 26 feet wide and would be restored to. a 26 foot width, 7 ton standards. There are a number of catch basins ai storm sewers in Greenwood Shores. Most of them outlet to the lake. These will be replaced as a.part of the project. The total estimated cost of the project is $605,100. The lateral cost would be spread to the benefitted properties which not only include Greenwood Shores but .also include. theproperty abutting the connecting line. Since the average lot frontage in Greenwood Shores is 175 feet the Engineer felt it was reasonable to could one unit for every 175 fe of frontage on the connecting line. This makes a total of 132 units to be assessed at $5,952 per unit. If this project were put with the Carver Beach project it would raise the unit price in Carver Beach by $70 per unit. APPLE VALLEY RED-E-MIX: Mr. John Ericson was present. The City Plann sent a letter to Apple Valley on August 7, 1975, stating the Council's motion of May 5 and Planning Commission recommendation of April 23, pl statements that Mr. Ericson made. The landscape plan does not comply with the wishes of -'the City Council or Planning Commission or.with comments that Mr. Ericson made. He sent the landscape plan and bond back to Mr. Ericson and asked the Building Inspector -to review the structure plans submitted by Apple Valley. A Certificate of Occupancy has not been issued. The Building Inspector stated the building did change design somewhat from the original plans. It was a square type building originally and they did add the cupola.on top. The construction of the building is done but it hasn't been painted. He stated he had talked to Mr. Ericsc and in the Council minutes is said that the silos would be enclosed but Mr. Ericson's definition of the silos is different than what the Planning Commission and Council thought. The silos that he was talkinc about are now the -ones that are enclosed not the actual cement silos. The City Planner reviewed the landscape plan. At the Council meeting c May 5 Mr.'Ericson- stated "we have a ranch style fence running east and. west on the southern property line. This fence will be repaired and extended to the west edge of our stock piles." A fence is not shown or the plan. "Evergreens will be planted starting at the southeast corner of our property and to a point approximately 180 feet west." The trees shown are green ash, silver maple, lombardy popler, and russian olive. Mr. Ericson stated they have met with landscape people and were told that if you want the area screened the decidious trees would grow faster than evergreens. The Planner felt the Planning Commission is quite concerned about the additional silo that was installed and about the surfacing of the area. The Administrator recommended that this be sent to the Planning Commission for their review also thatt-a much more substantial bond be posted to insure rapid revision of the plan as will be directed by the next review by the Council of the plan and to insure -completion of Special City Counci--Meeting August 11, 1975 landscaping and other on site facilities. A $5,000 bond immediately and when the plan for on site improvements is the Council the bond amount can be reduced to reflect the of the improvements. -7- be posted approved by actual cost A motion was made by Councilman Neveaux and seconded by Councilman Kurti that a bond be posted immediately in the amount of $5,000 subject to review at the time of return of the approved plans from the Planning Commission and that the applicant be referred to the Planning Commissic for their recommendations as far as the landscape and screening plans are concerned. The following voted in favor: Mayor Klingelhutz, Councilmen Neveaux and Kurvers. No negative votes.. Motion carried. Mr. Ericson stated that the painting will be done this year and the planting late this fall. CETA TITLE VI FUNDING: Mrs. Theresa Erickson was present to explain th program. Money for this program is allocated to the County. The Count has set aside money to be used in Chanhassen. There is a limit of $10,000 per year salary plus fringe benefits. The program may be extended beyond June 30, 1976, if the economy stays the same or doesn't improve. The program was available August 1, 1975. The position has to be in addition to the present staff. The person has to be a Carver County resident and unemployed for 30 days or underemployed. The Count is required to do County wide advertising plus put it in the Minnesota Employment Service Job Bank. The Administrator recommended that the area of most need is the Utility Department. , A motion was made by Councilman Neveaux and seconded by Councilman Kurv( to direct the Administrator to draft a preliminary job description for the Utility Department for Council approval August 18. The following voted in favor: Mayor Klingelhutz, Councilmen Neveaux and Kurvers. No negative votes. Motion carried. MINNEWASHTA REGIONAL PARK: -Pat Murphy, Bill Dilks, Commissioner Wayne Holtmeier, Dick Dutcher, Vivian Beaugrand, and Pat Boyle were present. The Planning Commission has been working on a recommendation to the City Council that the Comprehensive Plan of the City be amended to include a park on Lake Minnewashta. When the Planning Commission approN their minutes on August 13 then this proposal to amend the plan will be sent to the Metropolitan Council for their comment and review. The City Council cannot take action until the comments from the Metropolitar Council are received. The County Park Commission will have to go beforE the County Commissioners for approval of the park plan. They would likE comments from the City Council to take to the County Commissioners. Councilman Neveaux - I definitely am supportive of the proposal. I .think the County has done an excellent job responding to the wishes, needs, and concerns of the citizens of the City. I am absolutely for if Councilman Kurvers - I think it's an awfully pretty piece of ground to be rooted up and homes put in. It would be one of the most positive actions that anyone can make for future generations because this type of land there just isn't going to be anymore. With all the facts that have been presented to me to this time I would definitely go along with it. Pla, nn i ng C01si.asi on Y-eati August 13, 1975 _5w R STABLE PEMi -1'S a A motion was made by Hud Rollenback and seconded by J''tr- ?i.i.elke to hold a public hearing on a conditional use permit application )r the stabling of horses for Clifford Woida, 6398 Murray Hill Road, � ..►epte--..bar 10, 1-975, at 7:30 p.m. and a public hearing on a conditiona" 'awe pew ait applica-Cior_ for the stabling of horses 20ri Bradley Larson, 63rt Church Road, on Septambar 10, 1975, at 8s00 p.m. motion tananim-ously approval. SIGN COOL ITTEE a t motion -.7as ruade by Jim Mielke and sebond,d by s+a r#*-k Warita fs�-at ,-- - Gom-miss-ion appoint Vivian Beaugrand to the Ad Hoc Sign C,-xxittee- Mo ti�on :nani.mmoua ay approved. A �a,E V PED--MIX:-MIX: The City coinici�. referred th�.s 3�ack to ci3 Planning�:CT I.�4;? �330 `i:8 CbiRl3 iSa�.Uii feals they should follow Fihat the. Tf lining Cc nxs2i an and Coy. nci.l directed ;hem to do and what Mr. Eriase.a said they. wotxl.d dos When they have a landscape plan sho Ing all these . hi ngz then tha Planning Connui s.sion will review it. A ratl.on was mach by Nick Waritz and seconded by Jerry Wane- that tha i.ntentions of tha planning Cam? ssi.on were adequately stat•id on April 23 a 1975 a and twat Apple Vallee is to conlEo= to the design cs iteri.a as outlined by th„ Plauming Co i.ssson on than, date and the City Cour: a3. on 1.1ay 5, 1975. The Planning Ccm-mission will ravi.ew the landscape p]16 an w lz�n it is pz-e3antad. Motion b aanlmo'asly approved. %1iJ1'A.3.11 .u"TR�3 E IVE: P.C5.1.1CIEDU.tiZtES 6 A-MUAL .- The City Pla- ne ant Planning bci3- -lion members discusaSd and vmade changes to tha first 5�v8 s ?a p f.Lr3. of IC-1he pro -posed oSed �2aX2L:c�, C�a _ ads by Ji-m Mielke Se dad by Nick %7ari.ts t� adjourn. .,,o:.��a�, :gas �.�.�� and :�..conw� �:oti it rnen=ousla approved. M-:-eting adjourned at J:_;39 p.m Bar. y brooks Clax?,-.-ministrat=- Regular Planning Conv'--,sion Meeting September 24--,, 1975 --2-- The Chamber made a recommendation to the Planning Commission last year saying billboards should be allowed in certain districts but only businesses in Chanhassen could advertise on them. A motion was made by Mal MacAlpine and seconded by Tom'Noonan to' approve the Regular Planning Commission Minutes of September 10,'1975, as amended. Motion unanimously approved. RESIGNATION: Jim Mielke has resigned from the Planning Commission. The City Planner was asked to have the City Staff call the'persons who have applications on file with the City to see if they are still interested and also put a notice in Karen's Corner in the Carver County Herald. PROPOSED EXCAVATING ORDINANCE: Mal MacAlpine and the City Attorney have prepared a'proposed Excavation --Ordinance for Planning'Commission study and recommendation. The City Attorney suggested this 'could be a temporary ordinance and could be included as a unit of an ecological ordinance in the -future. He recommended 150 cubic yards be included in Section =5, :-5-.01. - A-�motion was made by Nick Waritz and seconded by Jerry Neher to submit the proposed Excavation Ordinance to the Council for their consideration and approval at the earliest possible ,date. Motion unanimously approved. y# Pl-anning-Commission --members are -concerned about' -an ecological ordinance. The Planner will -'check with the DNR to find out -if the standards have been completed on Shoreland'Management Act. When these are completed the City will have to have an ordinance. A -Tnotion -'was made - by --Tom Noonan-- and-'s'econ cad by Vivian Beaugrand to ask the Council to instruct the -City Attorney to work on a -proposed ecological ordinance.- 'Motion unanimously approved. APPLE VALLEY RED-E-MIX: John Ericson was present. The Planner gave aHIstory-of the --project:' The non-compliance to the City Council directive is that -the building has -not been painted.. The site plan shows --one enclosed silo'there has been -an additional silo attached to the --building. _ The City'Planner stated he has' -no -problem -with the landscape plan. It will be primarily cosmetic. They probably won't be doing -anything this year until the railroad gets their grades established and site slopes -stabilized: No amount of planting is going to screen that building., The plant materials. -shown are 'an attempt and -will probably be sufficient. Mr. Ericson read a prepared statement. "I. Painting of the'building. Contracts are'out and some bids are in on painting the block portion of the building and the cement' -silo. We prefer not to paint the wood portion of the building 'because it is -cedar and will age and turn gray. .2. Fly- Ash -Silo: --Because of the -nature of -the concrete business we -have installeda-silo for this product.' We consider this as part`of--the equipment needed to do business same as the trucks.. Split Rail Fence. The'fence will be extended in a westerly directioi -'When the contractor •that 'is working -oh Highway 5- is done with .his. -highway -•and slope work: The landscape plan shows a split rail fence. Regular Planning Cone ssion Meeting September-2 1975 -3- 4. We-•fir•mly believe that the surfacing will accomplish nothing in this area except give a hard base for dirt to come down ,off •the. Hanus property behind us. We purchased the plant from Western Concrete 'when they ceased doing business. We realize in some cases there may have been promises made or inferred that were not fully fulfilled by the farmer owners. We in no way needed the - fire' that happened `to us•last year. This has not been a good year in the construction industry in *general. We feel that the reconstruction done on this plant meets all the State and local building codes. The location of this plant i.s ideal as it permits us to serve"the western metro area:I We intend to grow with the suburbs and with this community. We have -posted a $5,000 bond with the City which we•feel shows our good intentions.". The concrete, portion of the building and-silo.will-be painted gray which•will•blend with the cedar and not show -the dust. Jerry Neher - I don't dike the idea of bringing 'a plan -in.that-we°approv - to :the City Council and then have -them come back to us. and: say how come there 'is a new silo going up down there. I am not happy with the sh:ole situation. Vivian BeaUgrand'stated she hoped Apple Valley.wouid--consider surfacing the main •truck`traffic area by_the-plant as the dust is' a•problem for the neighbors. A motion was made by Mal MacAlpine and seconded by Vivian Beaugrand to accept the lands cap*ing'plan as prepared by Seifert's, Inc: -:dated - August 29, 1905, as submitted.with the- understanding -that the landscaping -be completed upon:'completion ofthe work on Highway 5 and that the landscaping be done within. one planting season.- after.* the --completion of Highway S. ' The Planning Commission expresses dissatisfaction of not having the -painting done -within -'a reasonable time'and- -`also consideration should be given to blacktopping to eliminate the dust problem. The following voted in favor: Hud-Hollenback, Vivian Beaugran+ Mal MacAlpine, Nick Waritz, and Tom Noonan.,. -Jerry Neher voted no. ' Motion carried. GEORGE`CRANBROOYC -_SKETCH PLAN: The property: -is located on Hummingbird and Melody Hill=Road. Mr. Cranbrook-wishes to redivide the existing large lots into six lots. Sanitary'sewer and water are available. All lots,he intends to create meet or exceed the requirements as to area -and dimensions of - the Zoning Ordinance_" The City'Planner recommend4 that Mr' Cranbrook proceed with the development'of a short plat showing dimensions of the lots, square footage noted,,and-placement-and depth -of existing utilities be shown. - = The City Engineer will check on the assessments levied on the property and discuss this with Mr. Cranbrook. A motion was made by Vivian Beaugrand and -seconded by-Jerry•Neher-to- encourage Mr. Cranbrook to proceed with a short plat and provide the necessary information to the City Planner. Motion unanimously approved. Regular City Counca Meeting, October 20, 197, _7,- following voted in favor: Mayor Klingelhutz , Councilmen Hobbs and Neveaux. Councilman Kurvers voted no. Motion carried. APPLE VALLEY RED-E-MIX: John Ericson iaas present. The City Planner setforth a complete history on the plant in a memorandum dated October'14, 1975. The Planning Commission on September 24, 1975, agreed with the landscape plan as prepared by Seifert's and recommended that the plantings be placed on the property within one planting season after the construction of Highway 5. The Planner feels that the Council should require Apple Valley to enclose the new silo so as to harmonously relate to the principal structure and the other enclosed silo. If they are unwilling'to do this then the new fly ash silo should be removed. Mr. Ericson stated the building is being sancblasted now and will be painted within two weeks. He feels the fly ash silo is part of the equipment of a ready mix plant. He stated they are not adverse to putting some blacktop down but at this point there are a few other things that should be settled. Where is the road finally going to be located? Councilman Neveaux stated he would like to see the silos screened with some kind of fencing material to blend in with the building. Mr. Ericson asked the Council to let tt-em paint the building and then inspect the site to see how it looks and then decide if the silos should be enclosed. A motion was made by Councilman Hobbs an d seconded by Councilman Neveaux to table action until November 17, 1975. The Council will inspect the site prior to the meeting. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs and Neveaux. Councilman Kurvers voted ' no . Motion carried. The Apple Valley Red-E-Mix Plant is a legal non -conforming use. A conditional use permit was never issued because it was constructed durini the time of the old Village. SANITARY RESTROOM FACILITIES - LEACH'S RESORT: Roy Leach was present. Leach's Resort is located at 7001 Minnewashta Parkway. A motion was made by Councilman Hobbs and seconded by Councilman Neveaux to authorize Mr. Leach to proceed with plans and specifications to be reviewed by the Building Inspector for consideration in the issuance of a permit: The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux; and Kurvers. No negative votes. Motion carried. PROPOSED EXCAVATION ORDINANCE: The City Attorney has completed the recommended changes in the proposed ordinance in Sections 4.01 and 5.01. Councilman Neveaux moved'the.adoption of an Ordinance Prohibiting the Excavation and. Grading of the Earth and the Opening of Pits without First Obtaining a Permit therefor, Providing for the Issuance of Permits, and Providing Penalties for the Violation of this Ordinance. Motion seconded by Councilman Hobbs. The foll gain g voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, and Kurvers. No negative rotes. Xioti,on carried. F- \ � 1 Regular Council Pieeting November 17, 1975 -6- has reviewed it and suggests that the plan be reviewed by the Park and Recreation Commission and they work closely with Eden Prairie. A motion was made by Councilman Neveaux and seconded by Councilman Hobbs to refer this to the Park and Recreation Commission for study. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, Shulstad, and Kurvers. No negative votes. Motion carried. APPLE VALLEY RED-E-MIX: John Ericson was present. The Acting Administrat reported that Apple Valley has painted the. silos and the building. They have made an application for a building permit for the bly ash silo. He cannot issue a permit.because all commercial permits have to be approved by the Council. Normally when someone starts building without a building permit a penalty of 50%-of _the cost of the permit is cbar.ged. He recommended this be charged. John Ericson stated he has discussed the silo with the Carver County Assessor. The Assessor told him that the silo is assessed as equipment not real estate. Apple Valley did not feel it was necessary to have a permit. The. City Attorney felt that the silo should be taxes as real property. Mr. Ericson suggested that both silos be fenced from the bottom of the silos -.to the ground and painted the same color as the building. A motion was made by Councilman Neveaux and seconded by Councilman Hobbs that Application for a Building Permit for Apple Valley Red-E-Mix dated November 10, 1975, for construction of a fly ash silo, estimated value $5,000, be issued for 1, times the regular permit fee plus administrative costs incurred by the City Planner and City Staff. That both exposed exterior silos be skirted with architecturally harmonious wood treatment to blend with the main portion of the building from the top of the legs to the ground and that the City re -affirm the position of the Apple Valley Red-E-Mix being a non -conforming use in a C-3 District. The skirting to be completed within 30 days. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, and Kurvers. Councilman Shulstad voted no. Motion carried. SWEEPER AND TWO TRUCKS: RESOLUTION #75-49: Councilman Neveaux moved the adoption of a resolution authorizing the preparation of specifications and advertising for bids on a sweeper and two trucks. Resolution seconded by Councilman Hobbs. The following voted in favor: Mayor Klingelhutz, Councilmen Hobbs, Neveaux, Shulstad, and Kurvers. No negative votes. Motion carried. MINN-KOTA PROJECT 71-1E: The City has not received the final pay request. The Engineer is preparing an estimate with the final quantities in it. Minn -Kota has forwarded the request for payment to their attorney. The City Attorney reported he had a conversation with Minn-Kota's Attorney Jack. Deveny on November 14. They apparently are in agreement to absorb $12,769.04 for extra engineering costs incurred since the contract completion date and that this amount can be deducted. Mr. Deveny will submit a detail of what he understands these amount to. The City Attorney advised Mr. Deveny of the Council motion of November 10, 1975, and Mr. Deveny stated that if the City was going to invoke the full $33,300 penalty Hinn-Kota would start suit. ' Flannin� -Co--ulissior ;eeti ng July 27, 1977 new subdivisions but we .should also take a look at the existing neighborhoods to see i f there is some "ray that we can come up with a reasonable recommendation that can be implemented without going. to a great. deal of cost. The rei,_ainder of the meeting was chaired by Dick Dutcher. APPLE VALLEY RED-E.-MIX: John Ericson .was present requesting approval to install a new fly ash si o wh1.6h *,,,ould a Ilow fo`r the distribution of a new'. line_ of concre The Apple Valley Red-E-Mdx plant- is a non -conforming use in the CBD and the Plann; feels that construction of a new silo ,to expand the operation is an intensificatic of a non -conforming use. He recommended the Planning Commission look with,disfavc on considering expansion of the plant but encourage Apple Valley to .locate in an industrial area. Mr. Ericson stated they do not feel this -is an expansion of, their business but rather a change in the nature of the business. FJy ash is being used as an' additive in the ready mix business and it actually replaces a portion of the cement. that goes into the mix.: He considers this a piece of equipment necessary to the operation just as a compressor would be. Hud Hollenback moved that the Planning Commission recommend.to the Council that they deny the petition for construction of a new silo for. Apple Valley because it is our feeling that construction of said -silo would inte;�sify the non -conforming use in the CBD area. i•Iotion seconded by Jerry Neher. 1Nbtion unanimously approved. HOUSING AND Ra,DEVELOP.-'ENT AUTHOP-ITY - TAX INCREi' ENT FINANCING PLAN: Th?- City P_anper explained the HTLIs proposal to create.a tax increment istrict in the downtown area of Chanhassen. -.A feasibility study �,dll begin August 1 and 'will include the o'•rnershi.p of land for all parcels zrithin' the district' laid value` " and tax status of .all parcels and indicate presence of blight, and --ecormn. ended project boundaries.: The boundaries generally include' All th_e-CBD-plus-lands in Frontier Development- Park and west to Po �;ers Blvd. Planning Commission members would like to.receive copies of the HRA minutes. R-1B WINING DISTRICT: The.- Planning Coiission has scheduled a public. hearing for riug-u -c , , : a :mr 30 Pm. in the Chanhassen Elementary School: to. consider rezoning a portion of Carver Beach east of Nez Perce, St. Hubprtus, Shore Acres, and..Red Cedar Point to R-lB. ZONING ORDINANCE *2NMwCENT - NOISE: Bob daibel .dipm'aregulations. sed the PCA - Flud .Hol! enback moved to ho . a pub is hearing on September 14, 1977, 'at 7 t30 pd-lU to consider amending Section"-12.07-and adding a new Section 19.20 and also include Russell'.I_arsonts--recommendation as per his July 19, J977, .letter as proposed Ordu,'-- e 47-I Motion seconded by :,falter Thompson and unanimously` approved. I,IJTROPOLITAI3 COUNGILIS'P7,ANNING G�AINT PROGIWrI: The. city. is entitled to receive *704 for planning assistance under the Mandak. Planing Act..: Tha Planner will apply for the money. MIINESOTA.DOT TRA11SPORTATION PLAN: Members reviewed Phase I of the plan. This plat calls for construction of U.S. 212 between Non;•:ood and Interstate 47�., start bus service from ojaconia to the Twin Cities, complete Hit, '), 212 between Chaska axed .Trot -„rood, provide spade for bikeways on new urban hi9t1W Ys, build a City Council Mee"�hg August 15, 1977 -2- WEST 79TH STREET WATER AND STREET IMPROVEMENT: The Council previously ordered the water feasibility on West 79th Street. Completion of the study was postponed until the development contract was signed by Don Hanus. The contract has been signed and Mr. Hanus is presently building a facility. The City Engineer recommended the Council order a feasi.bility=-study for the street improvement and hold a public hearing. RESOLUTION #77-4G: Councilman Pearson moved the adoption of a resolution ordering a feasibility study for West 79th Street improvement and a public hearing for the street and water improvements on September 19,.1977. Resolution seconded by Councilman Geving. The following voted in favor: Mayor Hobbs, Councilmen Pearson, Neveaux, Geving, and Waritz. No negative votes. Motion carried. BILLS: Councilman Neveaux moved to approve.the July bills, zn luc ding the supplement, as presented. Motion seconded by Councilma Waritz. The following voted in favor: Mayor Hobbs, Councilmen Pearson, Neveaux, Waritz, and Geving. No negative votes. Motion carried. APPLE VALLEY RED-E-MIX BUILDING PERMIT: Math Fischer and John Ericso were present requesting building permit approval to erect a fly ash silo at -the plant on West 78th Street and Highway 5. The City_ Planner gave a report. This property is in the CBD and requires a conditional use permit. The Planning Commission felt that Apple Valley is a non -conforming use and the new fly ash silo would be an intensification of a non -conforming use. The Planning Commission recommended denial of a building- permit to install a silo. The City Planner and Manager concur with the Planning Commission. Mr. Ericson stated they do not feel it is an intensification of" thei.r'business, it is necessary to do business. Councilman Neveaux moved to deny the request for a building permit for Apple Valley Red-E-Mix to construct a fly ash silo because it --- is an intensification of a non -conforming use. Motion seconded by Councilman Waritz. The following voted in favor: Mayor Hobbs, Councilmen Neveaux and Waritz. Councilmen Geving and Pearson voted no. Motion carried. FILL PERMIT - RAY LATTERNER: The City has received a.grading permit application from Robert Reutiman to excavate approximately 3,000 yards of dirt in the southwest quadrant of Highways 41 and 7. - A portion of this property is in the* City of Shorewood on State Highway Department right-of-way. Councilman Geving moved to grant a -grading permit with grades established by the City Engineer. 'No dirt will be removed from the property and a berm'to be maintained. The permit will be in writing and signed by the city staff and the owner. Motion seconded by Councilman Neveaux. The following voted in favor: Mayor Hobbs, Councilmen Pearson, Neveaux, Waritz, and Geving. No negative votes. Motion carried. Council Meeting P-ril 17, 1978 - -4- CONDITIONAL USE PERMIT, HANUS PROPERTY, WEST 79TH STREET: Roman Roos', Hu Ho enback, Mal MacAlpine, and Dick Matthews o the Planning Commission were present* to discuss conditions placed upon the-Hanus property -on West 79th Street and Drocedures for processing amendments to the conditional use permit. The Manager was instructeC to notify Mr. Hanus that all portions of the permit must be completed by June.1,.1978, with deviations from the approved. plan, requested by Mr. Hanus, being approved by the Planning Commission. APPLE VALLEY RED-E-MIX - RECONSIDER BUILDING PERMIT: Math Fischer and John Ericson were present requesting reconsideration of a building permit to construct a fly ash silo at their plant along Highway 5-and West- -78th -Street. No action was taken MARVEL EGGUM SUBDIVISION - REPLAT OF LOTS 17 AND 18, rNRRAY HILL ADDITION: Mr. Eggum was present requesting Council approval to su iv ce Lots 17 and 18, Murray Hill, into five residential lots. Counci:linan Pearson. moved to approve the replat of Lots 17 and 18, Murray Hill Addition in accordance with the plan prepared by Valley Engineering revised April '17, 1978, incorporating 'the Planner's recommendations of April 12, 1978, i.e. 1. Mr.-Eggum realizes that additional assessments. will be levied against the property as specified in -the city engineer's report. 2. The applicant be obligated to prepare a final plat pursuant to the Chanhassen Subdivision Ordinance. 3`. Mr. Egguni forward an abstract of property title to be reviewed and approved by the city attorney. Motion seconded by Councilman Neveaux. The following voted in favor: Mayor' Hobbs;Councilmen Pearson, Neveaux, and TrTaritz. No negative votes. Motion carried. RESIGNATION - CITY PLANNER: Roman Roos, Chairman of the Planning Commission, suggested that the Council or Staff consider hiring. Bruce Pankonin as a consultant to continue working on the Comprehensive City Plan. Councilman Waritz moved to table the remainder of the agenda items until April 24, 1978.' 1--lotion seconded by Councilman Neveaux. The following voted in favor: Mayor Hobbs, Councilmen Pearson, Neveaux,` and Waritz." No -negative votes. Motion carried. Councilman Neveaux moved to adjourn. Motion seconded by Councilman:_` Pearson. The following voted in favor: Mayor Hobbs, Councilmen - Pearson, Neveaux and Waritz. No negative votes. Meeting. adjourned at 12:00. Don Ashworth City Manager Council Meeting July 17, 1978 -5- allowing outside storage o,: the subject property and direr the City Attorney to prepare a permit. Prior to execution. of the 'permit -the- Council -will revi ev, it. Motion seconded by Councilman Waritz. The following voted in favor: Mayor Hobbs, :Councilmen Pearson, Geving, and Waritz. No negative votes. Motion carried. Councilman Waritz moved to issue a variance to Ordinance 47K for the reason that this piece -of property -was grandfathered in prior to the ordinance: Motion- seconded by Councilman Geving. The following voted in favor: Mayor Hobbs, Councilmen Pearson, Geving, and Waritz.- No negative votes. Motion carried.* MC CLEARYJKELLYNNE SUBDIVISION - VARIANCE REQUEST: Mr. McCleary is requesting approval to subdivide property located along a e n nne _asfita into seven residential lots. Cul-de-sac variances are necessary for -Lot 3, Block 1, and Lots 1 and 2, Block 2, and a corner lot frontage variance for Lot 1, Block 1 are requested. The Planning Commission recommended approval. Councilman Pearson moved to approve the subdivision for James McCleary and the variances as requested subject to --the following conditions:. 1. Applicant agree to pay additional unit charges as shown in the Engineer's report of May 5, 1978. 2. The applicant enter into a development contract to complete improvements per the Engineer's report of May 5, 1978. 3. The applicant agree to the conditions outlined in the Planner's report of May 31, 1978, and Planning Commission action.- 4. .Issuance of a building permit on Lot 3, Block 2 be conditioned upon determination of adequate soils. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hobbs, Councilmen Pearson, Geving, and Waritz. No negative votes. Motion carried. JACOBSEN REPLAT, ELM AND MANDAN: Mr. Jacobsen is requesting approval to replat several lots in Carver Beach into two buildable lots. The Planning Commission recommended approval upon the condition that a hardshell be filed and an escrow deposit in the amount of $300 be made. Councilman Pearson moved to approve the replat conditioned upon a hardshell being filed and an escrow deposit in the amount of $300 be made to insure that the hardshell is completed and filed. Motion seconded by Councilman Waritz. The. following voted in favor: Mayor Hobbs, Councilmen Pearson, Geving, and Waritz. No negative votes. Motion carried. APPLE VALLEY RED-E-MIX BUILDING PERMIT, REQUEST FOR RECONSIDERATION: Based on a report from the City Attorney that the proposed use would be an intensification of a non -conforming use, the Council took no action to reconsider a building -permit application to construct an additional silo on the property. FRONT YARD VARIANCE REQUEST, KENNETH MORRILL: Mr. Morrill is proposing to construct a 24' x 36 a dition_and a 22 x 14' redwood deck onto his present home located at 880 Glendale Drive. A nine foot variance is requested. The Board of Adjustments ' and Appeals met and recommended approval. Councilman Geving moved to app.rove.the nine foot variance as requested by Mr. -Morrill. Motion seconded by Councilman Pearson. The -following voted in favor: Mayor Hobbs, Councilmen Pearson, Geving, and Waritz. No negative votes. Motion carried. REAR YARD VARIANCE REQUEST; WILLIS -KLEIN: Mr.- "Klein_is requesting a 28 foot rear yard variance to construct a garage on his property at 8405 Great Plains Blvd. The property is zoned R-lA. The Board of Adjustments and Appeals recommended the Council approve a rear yard variance of 28 feet and a side yard setback variance of 00 4 LARSON SC MERTZ 1J° Lt X ATTORNEYS AT LAW - 1900 FIRST NATIONAL BANK BUILDING ,� S RUSSELL H. LARSON MINNEAPOLIS, MINNESOTA 55402 1//,,,"� TELEPHONE C RAIG M. MERTZ December 19, 1979 - (612) 335-9565 OF COUNSEL F HARVEY E. SKAAR MARK C. MCCULLOUGH PA-17 S Donald W. Ashworth City Manager Box 147 Chanhassen MN 55317 Re: Apple Valley Red-E-Mix Dear Don, Judge Fitzgerald has denied Apple Valley's motion for a temporary injunction which, if granted, would have prohibited the City from enforcing its zoning ordinance against Apple Valley and allowed it to erect the fly ash silo on a temporary basis pending outcome of the trial presently scheduled for March 4, 1980. A copy of the Court's order is attached for your file. Due to the absence of John Neveaux from the city on March 4th, I shall be seeking a continuance of the trial to a later date in March. Ve trul S, RUSSELL H. LARSON RHL:ner Enc DLEC1979 CV RECEIVED VILLAGE p$ ao CHANHASSEN, ` MINN. 11: �5� RUSSELL H. LARSON CRAIG M. MERTZ OF COUNSEL HARVEY E. SKAAR MARK C. McCULLOUGH LARSON & MERTZ ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILOING MINNEAPOLIS, MINNESOTA 55402 December 12, 1979 Chanhassen City Council c/o Don Ashworth, City Manager Box 147 Chanhassen MN 55317 Re: Apple Valley Red-E-Mix Zoning Litigation Dear Council Members, TELEPHONE (612) 335-9565 The Apple Valley mandamus action to require the City to issue a building permit for the erection of an additional fly ash silo or show cause to the court why it has not done so is scheduled for court trial (without a jury) on Tuesday, March 4, 1980. This action arises from a Council denial of Apple Valley's permit application on August 15, 1977 by a 3 to 2 vote of the Council. John Neveaux moved to deny the request on the grounds that the erection of the silo would be an intensifi- cation of a non -conforming use. Nick Waritz seconded the motion, and on the call for the vote Walt Hobbs, John Neveaux and Nick Waritz voted in the affirmative with Dale Geving and Dick Pearson voting in the negative. We propose to call the following witnesses on behalf of the City: Walt Hobbs John Neveaux Mark Koegler Metro Council Planner Architect These witnesses will hopefully support the City's position that the erection of the silo would constitute physical enlargement or expansion of a non -conforming use in violation of the zoning ordinance. We must also anticipate that Apple Valley and Dale Geving to explain their negative and attempt to show that in their opinion constitute an enlargement or expansion. will call Dick Pearson votes on the motion, the silo did notes 1 � A i4o DLC1979' I�p`)C,!UFV tsF j ass r"+.sf MAN ►� cij v Don Ashworth" December 12, 1979 SS �° f;3 Page Two ���� 44-0 We would like to present as an exhibit at the trial a scale model of the ready mix plant to show the proposed silo, thereby graphically demonstrating the enlargement of the physical plant. Toward this end, we request your authority to seek out an architectural firm to do this work on a fixed fee basis. Should any of the proposed City witnesses find that March 4, 1980 is an inconvenient trial date, please so advise us immediately in order that we can attempt to secure a more convenient trial date. We anticipate that the trial may take a day and a half to two days of testimony. ry tr, ly RUSSELL H. LARSON Chanhassen City Attorney RHL:ner cc All Council Members Mark Koegler RUSSELL H. LARSON CRAIG M.MERTZ OF COUNSEL HARVEY E. SKAAR MARK C. MCCULLOUG^I LARSON & MERTZ ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILDING MINNEAPOLIS, MINNESOTA 55402 November 30, 1979 a Mr. Don Ashworth Chanhassen.City Manager Box 147 Chanhassen, MN 55317 Re: Apple Valley vs Chanhassen Dear Don, Enclosed for your file are the following: a) Apple Valley's (Petitioner) Memorandum in support of its motion for temporary injunction b) City Reply Memorandum. r TELEPHONE 612) 335-9565 To summarize, Apple Valley is seeking a temporary injunction prohi- biting the City from enforcing its zoning ordinance in order to allow Apple Valley to erect a temporary silo until final determination of the issue at the formal Court j'y �-heduled for March 4, 1980. u s, i RUSSELL H. LARSON Chanhassen City Attorney RHL:ner Enc cc Mark Koegler RECEIVED Y= a i VILLAGE OF; r s, C14ANNASSEN, . z MINN. ° y � r STATE OF MINNESOTA COUNTY OF CARVER Apple Valley Red-E-Mix, Inc., a corporation, Petitioner, vs The City of Chanhassen, a Minnesota municipal corporation, Respondent. I. ISSUE DISTRICT COURT FIRST JUDICIAL DISTRICT File No. 16193 RESPONDENT'S REPLY MEMORANDUM The issue presently before the Court is a motion for an order temporarily enjoining the City of Chanhassen ("City") from enforcing its zoning ordinance and prohibiting the City from preventing Petitioner from placing a temporary cement silo on the site of Petitioner's ready -mix concrete manufacturing plant located in the City. Court trial of Petitioner's action for an Alternative Writ of Mandamus is set for March 4, 1980, and Petitioner's present motion for a temporary injunction is in effect asking the Court to stay enforce- ment of the zoning ordinance of the City pending determination of the mandamus action in the scheduled court trial. II. ARGUMENT The effect of granting Petitioner's motion for a temporary injunction against the City would be to allow the erection of the cement silo contrary to the zoning ordinance provisions and without affording the City the right to have the non -conforming use issue fully litigated in a court trial. It is a maneuver to circumvent the express provisions of the ordinance prohibiting the enlargement of a non -conforming use. .-1 Petitioner's notice of motion and affidavit were dated September 1978, some eleven months ago, and not pressed by petitioner until November 16, 1979, only 3-1/2 months away from trial. Petitioner's lack of prosecution of its motion negates any element of emergency which would warrant the granting of its motion. The 1979 construction season is rapidly approaching its conclusion, with the 1980 construction season not to commence in all likelihood until after the trial on March 4, 1980.. Petitioner's building permit application (Exhibit 1, attached) and construction plan (Exhibit 2, attached) and the affidavit of Mathias Fischer, an officer of Petitioner, discloses that the proposed silo is of metal construction, 40 feet in height, ten feet in diameter with a volume of 4,000 cubic feet. Photographs of the plant and proposed silo, on file herein, graphically demonstrates the physical bulk of the proposed structure, and the inescapable conclusion that its erection, whether on a temporary or permanent basis, would constitute a signifi- cant enlargement of a non -conforming use in violation of the zoning ordinance of the City. Petitioner's memorandum argues that the silo is personal property yet the Fischer affidavit alleges that she proposed structure consists of concrete footings as a foundation for metal beams on which the 40 foot silo is located. It is apparent that the proposed structure is truly a part of the realty and not personal property as alleged. The argument that it can be removed in a matter of hours is immaterial -- it does not lose its classification as an enlargement of a non- conforming use merely because it might be easily removed. -2- Counsel for Petitioner has argued orally and in its memorandum that "all the Petitioner seeks to do is to use a portable piece of equipment to accommodate the mixture of a different color and grade of ready mix". The only items of evidence before the Court are the building permit application and the affidavit of Mathias Fischer, both of which speak of the erection of a structure consisting of a 40 foot steel silo, 10 feet in diameter, containing a volume of 4,000 cubic feet, mounted on steel members set on concrete footings. For Counsel to argue that a structure of the size and construction proposed is "portable" borders on the ridiculous. There has been no showing in support of the temporary injunction that Petitioner's rights will be irreparably injured or damaged before trial on the merits. Petitioner admits through the affidavit of Mathias Fischer that: 1.) The silo is desired merely as a convenience to Petitioner as a more effective means of storing material. 2.) The silo will offer Petitioner's customers ready mix concrete of different colors. 3.) The proposed additional silo has absolutely no effect on the output capacity of the Chanhassen plant. 4.) The plant is working at capacity and it is possible for Petitioner to sell all of the ready mix concrete currently produced by its Chanhassen plant to its customer. 5.) If a customer desires a different type of ready mix concrete than is being produced at the Chanhassen plant, petitioner can supply it from another plant. 6.) The proposed new cement silo simply increases Petitioner's potential for profit. -3- 1 There are no facts alleged by Petitioner which show the potentia: of irreparable injury or damage to Petitioner if it is not allowed to erect the silo, whether on a temporary basis or not. To allow the erection of the silo, whether temporarily or permanently, and thus allow an enlargement of a non -conforming use in violation of the City zoning ordinance, would constitute an interferenc4 by the Court with the legislative discretion of the City Council in enacting the ordinance. Zoning regulations are to be sustained as a legitimate exercise of police power in the absence of a showing of arbitrary, discriminatory, or unreasonable applications of thier restructive provisions. Dunnell, Municipal Corporations, Section 6525 (5) . The zoning ordinance was enacted and has been enforced for the purpose and intent of promoting the health, safety and general welfare of the City's residents through the regulation of land use. To permit the construction of the proposed silo, even on a temporary basis, would seriously impair this purpose and intent, by establishing the precedent of condoning the enlargement of non -conforming uses. Economic conditions and convenience to the Petitioner are not relevant arguments in this matter. The City is in no way obligated to permit the alteration of non -conforming uses or to grant zoning changes for the convenience of private enterprise nor the expansion of its production capacity or product lines. Petitioner argues that there is no possible damage to the City should the temporary construction be allowed. This is a fallacy. Such action would seriously impair the City's ability to enforce the zoning regulations concerning other non -conforming uses throughout the community. -4- bil Petitioner admits in its memorandum that the proposed silo will only contribute to lower customer costs and higher company profits. This admission contradicts Petitioner's claim of irreparable damage to it by the denial of the permit. In addition, lower customer costs and higher company profits are immaterial and irrelavent to this case. III. CONCLUSION The erection of the structure proposed, whether temporary or permanent, constitutes an enlargement of a non -conforming use in violation of the City zoning ordinace. The Petitioner's motion for a temporary injunction against the City prohibiting it from enforcing the ordinance should be denied. Respectfully submitted LARSON & MERTZ By Russell H. Larson Attorneys for Respondent City of Chanhassen 1900 First National Bank Building Minneapolis, Minnesota 55402 335-9565 Dated November 30 , 1979 LARSON & MERTZ A , ATTORNEYS AT LAW CCG n 1900 FIRST NATIONAL BANK BUILDING�'�� RUSSELL H. LARSON MINNEAPOLIS, MINNESOTA 55402 TELEPHONE CRAIG M. MERTZ r, (1512) 33S-9S65 OF COUNSEL HARVEY E. SKAAR I MARK C. MCCULLOUGH Q XV Iri) October 17, 1979 City of Chanhassen c/o Don Ashworth City Manager 7610 Laredo Drive Chanhassen, Minnesota 55317 Re: Apple Valley Ready Mix vs. City of Chanhassen Dear Don: Attached is a copy of the City's memorandum in opposition to the Apple Valley motion for a temporary injunction which will be heard on Friday, October 19, 1979, at Chaska. Apple Valley is seeking a temporary injunction against the City prohibiting the City from inforcing its zoning ordinance to deny Apple Valley a permit for the "temporary" construction of a cement silo. Yo s y y, -AA44 RUSSELL H. LARSON Chanhassen City Attorney RHL:rb Enclosure cc: Mr. Walter Hobbs Mr . '.John Neveaux Mr. Dick Pearson Mr. Dale Geving Mr. Dick Matthews OCT 1979� RECEIVED VILL.AGB OF, QHANHASSgNs �t_ MINN. �`'� 19.11 Projecting and Roof Mounted Equipment. I. All roof mounted equipment shall be screened from the public view at street level. 2. Air conditioning or heating units projecting through exterior walls or windows shall be so located and de- signed that they neither unnecessarily generate or transmit sound or disrupt the architectural amenities of the building. I inits projecting more than 24 inches beyond the exterior finish of a building wall shall be permitted oniv with the written consent of the Village Building Inspector 19.12 Transmission Lines. I Within all districts the establishment. construction. maintenance and use of overhead or underground transmission lines. conduits or pipelines for the transporting or transmission of gas, oil. petroleum. solids, liquids or high vol- tage electrical energy is prohibited. except upon the securing of a Condition- al Use Permit 19.13 Planned Unit Development Re- quirements. 1 All proposed land developments and all applications for rezoning which contain in excess of 25 single family zoning lots. or in excess of 24 multiple duelling units, or in excess of 10 acres for pro- posed commercial or industrial use shall be submitted as proposed planned unit developments and shall be gov- erned by the regulations thereof 13.14 Unimbabitable Land. 1 Lots. parcels or tracts of land deemed by the Council to be uninhabitable shall not be utilized for residential use. nor for such other uses as may endanger - life or property or the public health and welfare or create or aggravate a flood. erosion or water pollution hazard. but such land within a zoning district shall be set aside for such uses as shall not create or contribute to any of the fore- going conditions 19.15 Zoning Lot Limitation. I Only one principal structure shall be permitted on each zoning lot 19.14 Outside Storage in Residential Districts. I Outside storage of recreational equip- ment is prohibited in the front and side yards in all residential zoning districts. unless screened by fencing 2. All outside storage structures in resi- dential zoning districts shall be archi- tecturally harmonious with the princi- palstruclure. 19.17 Certificate of Occupancy. I The certificate of occupancy required by the Chanhassen Building Code. Ordi- nance No 23. shall be issued only for a structure which complies with all ap- plicable provisions of this ordinance and said building code SECTION 29. NON -CONFORM IN(; USES. 26.111 Coatinuaiion. The lawful use of buildings or land existing at the effective date of Ibis ordinance which does not con. form to the provisions of this ordinance shall be discontinued within a reasonable period of amortization of the building, and uses of lard or buildings which be•cOlne non -conforming by reason of 4ubsedluen amendments of this ordinance shall also be discontinued within a reasonable peri- od of amortization of the building The period of amortization shall cornn,ence with the ef►ee•tive date of this ordinance and shall extend for a period of not more than. I. Fifteen i l5 r years for buildings of wood frame construction 2. Twenty 120, years for buildings of wood and masonry construction 3. Thirty i30r'years for buildings of fire proof c•onstruc•(ion. 4. Dwellings found to be non -conforming only by reason of height, yard, or area requirements shall be exempt front the other continuation provisions of this ordinance. 5. Any building or use partially taken by public action under eminent dornsiin proceedings, which building or use is (hereby made non-conforiing rnav continue 29-02 Enlargement or Alteration. No non -conforming use shall be enlarged, altered or increased, or oo-vupy a greater area than that occupied by such use on the effective date of this ordinance or any amendment thereto. A non -conforming use shall not be moved to any other part of the parcel of land upon which the same was conducted If no structural alters tions :are made• a lion conforming use of a building rnav be changed to another non. conforming use of the same or mole re- stricted classification. K'henever a non- conforming use of a building has been changed to a more restricted use or to a conforming use, such use shall not [here- after be changed to a less i estric•te'd use. 20.03 Restoration. Any building locat- ed in any district which is paitally de stroyed by any cause may be restored tr its former use and physical dirnensions; provided that any such building which does not conform to the use. height surd other restrictions of the district in whict it is ]OCated aril is thus desiro'yod, accord ing to the estnnate of the ('ouncil or sonic official designated by it, to the extent of fifty c501 per cent or moire, rnav not be rebuilt or reconstructed except in ac•c•ord- ance with such restrictions 20.@4 Termination of t'se. In the event a non-confoi ring use is discontinued for a period of one of i year, or if a non -con forming use is replaced by a conforming use, any subsequent use of the preinrse� shall be in conformity with the use i egula- tions specified for the district in which such use is located. 20.05 Junk Yards. NO junk yard! rnav continue as a non cunfor►rrrng use fur more than One i 1 , year after the effective date of this ordinance, except that a junk yard may continue as a non -Conforming use in an I-1 District if within that period it is completely enclosed within a build- ing. fence, screen planting or o+thcr device of such height, not less than eight 18, feel in any case, so as to screen corpletely the operations of the junk yard flans fur such building or screening device shill be approved by the Council before it Is erecl- cd or put into place a °t1.06 Normal Maintenance. Mainte- nance, necessary nun -structural repairs, r and incidental alterations of a building or structure containing or used as a non- conforming use are to be permitted pro- vrded that anv such maintenance, repairs or alteration does not extend, enlarge, or intensify the non -conforming building or use. 20.07 Public Utility Buildings; Excep- tions. Municipally owneol utility buildings and structures to be used for purposes of rendering service to the community. and not for warehouse purposes or for the storage of bulky materials, when the Council shall deem them to be clearly necessary for the public convenience, may be permitted in any district. such variation from the height and area dis- trict regulations may be allowed for such building or structures by the Council as it deems necessary. SWTION 21. COMMON OPEN SPACE. 21.01 Definition. "Common Open Space" is a parcel or parcels of land or an area of water, or a combination of land and water within the site designated for a Planned Unit Development District, and designed and intended for the use or en- joyment of occupants of the Planned I Init Development District. Common open space may contain such complementary structures and improvements as are nec- essary and appropriate for the benefit and enjoyment of occupants of the Planned ('tilt Development District. 21.02 Dedication of Common Open Space. The Village rnav, at any time and from time to time, accept the dedication of land or any interest therein for public use and maintenance, but it shall not be it condition of the approval of a Planned Unit Development District that land pro- posed to be set aside for common open space be dedicated or made available to public use. 21.0.1 'Son -Dedicated Common Open Space. The ownership and maintenance of non dedicated common open space shall be governed by the following regulations- I Ownership. The legal or beneficial Owner or owners of all of the land pro - Posed to be included in a Planned Unit D>eyelopment District shall provide for the establishment an organization for the ownership and maintenance of any non -dedicated common open space, and such organization shall not be dis- solved, nor shall it di•;Ixose of anv such cumtrrnn Open space, by sal(- or.other- wi>.e. except to an organization con - (I and established to own and maintain the common open space, with- out first offering to dedicate the same to the Village or other government agency. 2. Maintenance. In the event that the Organization established to own and inainutin common open space, or any successor organization, shall at any' lirne after establishment of the Plan- ned Vnit Development District fail to mainUin the common Open space in reasonable order and c•ondkion in ac- cordance with the Development flan. the Village may serve written notice ulwn ;uch organization or upon the oc- '! X#AF17- /% LARSON SIC MERTZ ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILDING RUSSELL H. LARSON MINNEAPOLIS, MINNESOTA 55402 CRAIG M. MERTZ OF COUNSEL September 24, 1979 HARVEY E. SKAAR MARK C. McCULLOUGH Chanhassen City Council c/o Donald W. Ashworth Chanhassen City Manager Box 147 Chanhassen, MN 55317 Re: Apple Valley Red-e-Mix Gentlemen: TELEPHONE (612) 335-9565 The above case is set for trial by the Court on March 4, 1980 at 9:00 A.M. The plaintiff, Apple Valley Red-e-Mix, had asked to have this case tried before a jury, but this office felt that the matter should be heard by the Court alone, and accordingly, we moved the Court to strike the case from the jury calendar and have it tried by the Court. Judge Haering, by his Order of September 17, 1979, a copy of which is attached, has agreed to our position and has stricken the case from the i1E-r-lendar. RHL:mep Encl. Very u yo , RUSSELL H. LARSON Chanhassen City Attorney S£P 1979 F?!C�zo VMLAOg, OR CHANHA$s&rN' MINN. r RUSSELL H. LARSON CRAIG M. MERTZ OF COUNSEL HARVEY E. SKAAR MARK C. McCULLOUGH LARSON & MERTZ ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILDING MINNEAPOLIS, MINNESOTA SS402 Donald W. Ashworth Chanhassen City Manager Box 147 Chanhassen, MN 55317 Dear Don: September 11, 1979 0 Z4 TELEPHONE (6:2) 33S-9565 Re: Apple Valley Red-E-Mix, Inc. vs. City. of Chanhassen The above matter is set for pretrial conference in Chaska on Friday, September 14 at 10:30 A.M. No member of the City staff need be present. The plaintiff, Apple Valley Red-E-Mix, has demanded a jury trial, which we feel is inappropriate in this case, and accordingly, we have moved the Court to have the case stricken from the jury calendar and placed on the court calendar for trial. A copy of our moving papers and memorandum in support of our requested relief is attached for your file er ruly s, RHL:mep Encl. �RUSSELL H. LARSON Chanhassen City Attorney • h�g10 �i� 3j��� Sip 1979 m ��CE1ITED cv VILZAC;E OF �- .CHANHASgENV MINM 3 A e_� ?.. r x e ' t .:•ka zU Bloomberg Company, Inc. c/o Mr. Herbert Bloomberg Chanhassen, lvUl 55317 Dear Mr. Bloomberg: From: CP Adrr rator ._ referred To: :r 17= j;il R e 2 Y f �, ]7ea�u;ci P0ii-1Q -- SepteMftr _ -17,i Street Nla:gt. �0 il� cr ` VED VILLAGE OF CHANHASSEN, PSI INN. Recently the Minnesota Pollution Control Agency became aware of a situation involving the deposition of solid wastes at a location in the City of Chanhassen just north of Highway #5 and south of the main town road. A review of Carver County property ownership records indicates Bloomberg Company, Inc., -as the current owner of this land. An inspection of this site was conducted by Minnesota Pollution Control Agency and Carver County officials on August 22, 1979. This inspection revealed the presence of solid wastes in the form of concrete, as- phalt, scrap wood, scrap metals, plastics, paper and other rubbish. Please be informed that the deposition of solid wastes at this location without first obtaining proper permits from the Minnesota Pollution Control Agency and Carver County is a violation of Minnesota Pollution Control Agency Solid Waste Regulations and Carver County Ordi- nances. It is the. standard policy of this Agency to hold the property owner(s) responsible for such illegal solid waste deposition when it occurs. It is the request of this Agency that all solid waste deposition at this site cease immediately. Enclosed is a form entitled, "Disposal Site Closure Record". Each of the ten (10) points on this form should be addressed in conjunction with the closure of the site. The main closure item will involve -the compaction of solid wastes present and the covering of these.wastes with at least two (2) feet of earthen material. This form should be returned -to this office when closure is complete. A follow-up inspection of the site will then be conducted. Phone: (612) 296-7288 �._......,, ,.,:?tom ,,:I�. F;L�f??4iir. Rr.?S?Vi[F;; Bloomberg Company, Inc. Page 2 Please contact this office if you have any questions on the matters discussed in this letter. Thank you. Sincerely, Jeff Harthun Pollution Control Specialist Enforcement Section Division of Solid Waste JH:ds cc: William Dilks, Carver County . -Jerry Stahnke, Solid Waste Division, NPCA .;/ Donald W. Ashviorth, City Manager, City of Chanhassen, 7610 Laredo Drive, Chanhassen, MN 55317 A CITY OF 7610 LAREDO DRIVEeP.O. BOX 147*CHANHASSEN, MINNESOTA 55317 (612) 474-8885 August 10, 1979 Mr. Jerry Neher 205 W. 77th St. Chanhassen, Mn. 55317 Dear Jerry: I have enclosed a copy of the July 31st, 1979 letter from Jane Chinowsky of the noise section of Minnesota Pollution Control Agency, which outlines the difficulty in which they had in gathering a reading on the Apple Valley Red-E-Mix operation. It appears to me that if a challenge to the noise emitting from the Apple Valley facility is to be made, first the noise must be significantly greater than that which was emitted on the afternoon of July 25, 1979, and that the complainants should suggest when would be the best time to take such measurements so as to differentiate between the noise emitted from Highway 101 and the Red-E-Mix, i.e. early morning hours work day or weekend. If you have any questions or comments please do not hesitate to contact me. Sincerely, Bob Waibel Assistant City Manager/Planner BW:njo Enc. A W Minnesota Pollution Control Agency July 31, 1979 Mr. Bob Wibel City of Chanhassen 7610 Larado Drive Chanhassen, MN 55317 Dear Mr. Wibel: At your request, the Noise Pollution Control Section visited the area affected by noise from the Apple Valley Red-E-Mix Cement Company on July 25, 1979. The major sources of noise from this operation appears to be the cement trucks and activity at the storage site. Unfortunately, no noise measurement could be made because of the operation's close proximity to Highway 101. I am sorry that we could not be of more help in this matter. Sincerely, JANE CHINOWSKY Noise Section Division of Air Quality JC:jms AUG 1979 RECEIVED VILLAGE of f � k CHAMA SM. MINK. Phone: 99�280 1935 West County Road B2, Roseville, Minnesota 55113 Regional Offices • Duluth/Brainerd/Detroit Lakes/Marshall/Rochester Equal Opportunity Employer RUSSELL H. LARSON CRAIG M. MERTZ OF COUNSEL HARVEY E. SKAAR ' MARK C. MCCULLOUGH LARSON & MERTZ ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILDING MINNEAPOLIS, MINNESOTA 55402 April 16, 1979 Gerald S. Duffy Petersen, Lyons, Tews & Squires ,580 N.W. National Bank Building St. Paul, MN 55101 Dear Mr. Duffy: TELEPHONE (612) 335-95e5 Re: Apple Valley Red-E-Mix, Inc. vs. City of Chanhassen Your File No. 1701-02 It has come to the attention of this office that Apple Valley Red-E-Mix has placed a huge fuel storage tank on its premises in Chanhassen with the intention of placing it underground to provide fuel service to the Apple Valley vehicles. We consider this to be an enlargement of the non -conforming use, which is prohibited under the zoning ordinance. Therefore, it is incumbent that Apple Valley remove this storage tank from its Chanhassen premises by not later than the end of this month. Very truly yours, RUSSELL H. LARSON Chanhassen City Attorney RHL:mep cc: Donald W. Ashworth, City Manager LAnsON & MERTZ ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILDING RUSSELL H. LARSON MINNEAPOLIS, MINNESOTA 55402 TELEPHONE CRAIG M. MERTZ (612) 335-9565 OF COUNSEL February 22, 1979 HARVEY E. SKAAR MARK C. McCULLOUGH Chanhassen City Council c/o Donald W. Ashworth Chanhassen City Manager Box -14 7 Chanhassen, MN 55317 Re: Apple Valley Red-E-Mix vs. Chanhassen Gentlemen: Attached is your copy of the deposition of Mayor Hobbs taken by the Apple Valley attorney in the above litigation. The deposition furnishes a good insight to the nature of questions which John Neveaux can anticipate when his deposition is taken. A copy of Nick Waritz's deposition February 20th will be furnished each of you when ilablee RHL:mep Encl. cc: All Councilmen Nick Waritz Very r s, RUSSELL H. LARSON Chanhassen City Attorney FEL;Is- r. R�CEIy vi>u„gQE o D r' C11ANijA86 i i 1 STATE OF MINNESOTA DISTRICT COURT 2 COUNTY OF CARVER {' FIRST JUDIC_TAi, DISTRICT" . ..:. 3 .. 4 Apple Valley Red-E-Mix, ) Inc., a corporation, ) 5 ) Plaintiff, ) 6 ) VS. ) 7 . The City of Chanhassen, ) s a Minnesota municipal ) corporation, } 9 ) Defendant. } 10 --___------_---.,.------.. --- . .kr t 12 i 13 14 Deposition of NICHOLAS WARITS, taken pursuant .to r, 15 Notice of Taking Deposition, and taken before Jeanne M. ;' 16 Parkin, a Notary Public in and for the County of Hennepin, 17 State of Minnesota, on the 20th day of February, 1979, at 18 1900 First National Bank Building, Minneapolis, Minnesota, 19 Commencing at approximately 10:30 am. 20 i 21 22 1-•�f ., - s }• ..gyp'. 23 24 25 KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. i 5T. PAUL. MINNESOTA 55101 PHONE: 612-224•871 1 1 2 3 4 5 6 7 8 9 10 t� 11 12 13 14 15 16 17 1s 19 20 r,T f r. 21 T 22 } 23 - .. 24 25 2 APPEARANCES: GERALD S. DUFFY, ESQUIRE, 580 Northwestern National: - Bank, St. Paul, Minnesota 55101, appeared for and on _ ,~ behalf of the Plaintiff. RUSSELL LARSON, ESQUIRE, 1900 First National Bank Building, Minneapolis, Minnesota 55402, appeared for and .: on behalf of the Defendant. WHEREUPON, the following proceedings were duly had: NICHOLAS WARITZ, a witness in the above -entitled action, after having been first duly sworn, deposes and says as follows: CROSS-EXAMINATION BY MR. DUFFY: -= : Q would you state your full name, please? r..: A Nicholas Warita. ti Q Mr. Warita, my name is Gerald Duffy, and I'll be}askin rt:: you some questions. If you don't understand the questions:'- I ask you, please ask me to rephrase them because I'll KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 61 2-224.871 1 In In 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 3 assume that if you answer a question, you've understood it. The other side of it is I don't want to try to ask.; you a trick question. I want to try to communicate with- You. So if I ask you a question you don't understand, ask me to rephrase it. We'll see if we can Conte -up with a question that ;you can answer fairly. Mould you give, me your address, please? A 1271 Bluff Creek Drive, Chaska, .Minnesota. Q Chaska? A Chaska. MR. LARSON: -I should point out because of the infinite wisdom of the post office department, some parts of Chanhassen get their mail at Chaska, other parts in Excelsior and some parts even in Chanhassen. BY MR. DUFFY: Q Do you live in the city limits of Chanhassen? A Yes, I do. Q And you're. a member of the Chanhassen City Council? A Not at the present time. 1 was up until January 3st, until midnight December 31st. 5 sw.. Q And how long were you on the Chanhassen City Council? -` A From some time in Septeanber of 1976 until December 31r 1978 I guess. 14R. LARSON: You'll have to speak up so shei.'gets"` it down. KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 612-224.8711 ' I 1 2 3 4 5 6 7' s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 II 4 BY MR. DUPFY: Q What is your occupation, sir? A Accountant. Q Are you privately employed or are you a public accountant, or -- A Private. Q Who do you work for? A Piper, Jaffray rx Hopwood. Q What is your educational background? A Fight years elementary school, four years of high school, four years plus of college. I took some advance courses. Q where did you go to college? A Montana State University. Q Do you have a degree from there? A Yes. Q what is that in? A Business Administration with a.major in Accounting. Q How long have you lived.in Chanhassen? A Since October of 1965. Q And prior to serving on the City Council, did you have :any official capacity with regard to city government -in " Chanhassen? A Only to the extent that I served as a member of the: Y <�., _ Planning Commission. Q When did you first get on the Planning Commission? KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLOG- ST. PAUL. MINNESOTA 55101 PHONE: 6 1 2-224-87 1 1 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 t> 1 believe that was approximately July or August: of 1976 1 believe. Q And shortly thereafter you went to .the City Council? A Not shortly thereafter, about nine years later. Q Oh, ' 67. I'm sorry. What was your position on the PlanningCommission? Are -`. you assigned any kind of a title other than just a member? A Well, I was a member I think off and on for a period of time. I was Advice Chairman or something like that, a position which was rarely ever used. It had nc> official connotation other than -- Are you now involved with city government in Chanhassen at all? A I airs on two committees: the Community Facilities study Committee and the Sign Committee. Q And were you on those while you were on the City Council or is that something that's come to past after you had. gotten off the City Council? A I was on both of those primarily as a result of being on the Council at the time I guess. Q M. Waritx, when was the strike that. You were on the City Council in 1975 --- excuse me.. You were on Planning Commission in 1975, and at that time Fisheye. Construction Company/Apple valley Red-F-Mix applied for a' permit.to reconstruct part of its red-e-mix plant in KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 61 2-224.871 1 N. 1 Chanhassen that had been damaged in a fire. no you have 2 any recollection of the hearings or the process by which 3 the Planning Commission considered that application in_�.4- 4 1975? 5 A Looking back through the minutes I think I missed the 6 first --- I can't really tell whether I was at the first 7 meeting or two or not. I was looking at the Parch 26th 8 minutes. To ny recollection, I don't see my name mentione 9 in there any puce. It seems to me that I did miss a 10 meeting or two in that period of time. I can't remember 11 what the reason would have been; but my wife may have been 12 in the hospital or something like that. I may have missed 13 some.meetings. 14 Q Do you have any personal recollection of being involved 15 in the decision -making process as a member of the Planning 16 Commission with regard to that application in 175? 17 A Well, there are some minutes where I did find my name, 18 specifically find my name. I do remember seeing Mr. 19 Eric_son:. some time during that 175 period. I never en- 20 countered fir. Fisher at that time; but Mr. Ericson- 21 recall him having been to some of the meetings. 22 Q Do you have any recollection outside of what's in the. 23 minutes of the Planning Commission meetings about.:what'__; = 24 took place in.the early hearings .in '75? 25 A I don't really. I guess about the only thing I recall or KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL MINNESOTA 55101 PHONE: 61 2.224-871 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 W the thing that comes to mind was after I think, kind of after, everything was -- well some of the hullabaloo or whatever you want to say that arose after the Council had okayed and determined there was less than 50 percent damage of the construction on account of the fire, and they could go ahead and reconstruct. Then there were -- I remember seeing some landscape plans and some conver- sation and discussion that perhaps they weren't moving fast, enough on doing some of the things. I think there was some other problems at that time. There was some highway work at that time I believe. 1 remember one occasion where Mr. Ericson came back and felt that they were moving about as fast as they could considering the highway work. I think he'd indicated that they went aheae and did some of the landscape work and the highway department told them they'd probably have to come in and tear it all out anyhow to do what it was they -were doing. That was part of the problem. Those were some of the things i remember. SIR. LARSCN : Nick, 3: note . the minutes of the Planning Commission on August 13, 1975, and -October 2 1975,.concerning apple Valley. It appears that you:.,: were present at those meetings because you instituted certain action. A I think there was the occasion or rather this thing got KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 61 2.224-871 1 lu 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 .25 M passing back and forth between the Council, on several occasions if I remember right. we passed it up to the Council and said, "You're not complying with what we said you were supposed to do." The Council passed it back to us and said to approve it or something like that or to approve or not approve the new plans. We said -hat wa had approved the plan already and that's.what we want to stay with. I think there was some heated discussion between the Planning Commission and.the Council at that time if I remember correctly. BY MR. DUFFY Q Do you recall why it was heated, what the reason for the friction was? A it was heated in the sense that mostly.it was via the minutes rather than --- in other words, they didn't actuall, go on a body and confront the Council or counsel us but at our Pla nning Commission mestings, I guess we had this already and why are they sending them back to us. Q Is it your recollection that there was opposition on the Planning Commission at this time �to reconstruction of--,th+e'-.: red-e-mix plant? A i suppose I'd have to look and see what the votes were1her4 On any issue I guess you could find people for and against just about anything. You can find `' Y 9• people against mother f. hood and people that don't like apple pie. KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG- ST. PAUL. MINNESOTA 55101 PHONE: 61 2-224-87 1 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LARSON: One of the things that makes Chanhassen such a viable community is that therein considerable dialogue between the Planning Commission and the Council and the other advisory cornnAttees with the Council. concerning City policy.- You don't always find everyone in total agreement with every— one else. That's what makes Chanhassen a rather challenging city. BY MR. DUPPY: At any rate, Mr. Waritz, do you recall what your position was with regard to the reconstruction in '757 Did you vote for it or against it? A I would have to see if I can find the vote or the minutes and see if I was even present. ..,I guess it looks like the discussion of the Planning Commission on the.motion to approve or not approve the granting of the building permit to reconstruct the building on the premises was made on April 23, 1975. That states that the motion was made by Dan Herbst and seconded by Bud Hollenbeck (phonetic and was unanimously approved. However, I don't think"}I'4_' was at the meeting because up above on that date, which..:; is page 2, there is a polling of the panel and my name. is:^f. not mentioned. So I would say that I probably did not-, vote at the Planning Commission meeting at that time. It looks like I was probably absent. KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. 5T. PAUL. MINNESOTA 55101 PHONE.: 61 2-224-B71 1 1 2 3 4 5 6 7 8 9 10 .11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 MR. I/ARSCN: If it's material, Jerzy, actually I'd be happy to furnish you with the face sheet of the Council and Planning. Commission meetings which show the attendance.. I overlooked that, -and I apologize for that oversight. Mil. DUFFY: That would be fine. BY MR. DUFFY: Q If it does shown one way or the other that you were. present I would ,assume that whatever your knowledge of that hearing at that time would be, it's within the records here as opposed to something you have as an independent recollection of what went on. A Yeah, I guess the motion was actually approved so I assume I had left the meeting early which I don't thank I hardly ever did. I would have voted for it. However, at the present time I'd have to feel. that I don't think I was in attendance that night. Q Later onthat year, there was a discussion about a buildinc Permit .for fly ash silo on the property. Do you have any recollection of that coming to the Planning Commissioh?-;k �.`. A I have no independent recollection of that prior to reviewing the minutes. In reviewing the minutes just., recently, it's kind of my first rerecollecrtion or -whatever it might be of that. Q Did reviewing the minutes refresh your recollection of KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST_ PAUL. MINNESOTA 55101 PHONE: 612.224.871 1 11 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 25 what went on there or is your knowledge confined to whatever the minutes show with regard to the fly ash silo and the building permit in 175? A It doesn't refresh it necessarily as to all the specifics. I guess Like I had indicated earlier, it does refresh ny memory with the fact that there was a little bit of confrontation as far as the plans and some things weren't being done at all, some things weren't being done accordin to specifications. We had this dialogue between the Council and ourselves, and I don't independently without looking at the minutes., I don't independently remember the fly ash silo as one of those items. Although reviewin, the minutes, it obviously was. 0 Your recollection of the situation at that time was such that you felt the complaints that tine Planning Commission had before it were valid, do you feel that Apple Talley Red-E- ix wasn't in fact doing in 1975 what it had originally indicated it would do? A Do you mean as my independent recollection -- Q Yes. A Just from memory? Q Yes. s, ~ Z A The vast stored knowledge of my brain apart from there things here?` Q Yes. KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 - • PHONE: 6 1 2-2 24-87 1 1 ---�.y�.... rn•r •tr.-.�...wr. . 12 1 2 3 4 5 s 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I guess I do vaguely remember that there was some dis- cussion and concern over the fact that this was also-7you know --I recall some citizens maybe mentioning that from time to time. It doesn't appear that they were going to Y'w finish what they said they were going to do. Q Did you personally receive any of -these complaint$ from the citizens? A Oh, just in passing I think maybe one or two people. I couldn't tell you. I couldn't give a specific name or anything like that. 4 What was your, if you can recall, what was your feeling with regard to whether or not those complaints were valid? Do you think they were or were not or you don't recall? A I don't really recall. I live in the southern end of Chanhassen, and I don't really have too much occasion to go into the City where I'd be passing by the red-a-riix plant. Where were a few occasions when I specifically would drive around the City to kind -of see what was happening and what was going on and that kind of thing or if something were a special item on the agenda, that,�_z,` would require me to go out and look at something like's lot subdivision or a' variance request or something like that. I would occasionally take a tour of the City-azid._,p probably drive around that way but ordinarily I didn't---. go by the red-e--mix. So I really didn't concern myself KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 61 2-224.871 1 1 2 Q 3 4 A 5 Q 6 7 8 A 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 too much with it 3 guess. With regard to the permit application in 1977, you. were on the City Council at that time? Yes. And when was the first time you recall hearing about an zo - application by Apple Valley Red-E-Nix for a building permit at that time? I think it would have been at the time that we would have received a Council packet when the item was to come up on the agenda. MR. LARSON: Refer to the July 27 minutes of the Planning Commission. Mick, isn't it a fact that as apart of the Council agenda packet which,is dis- tributed to the Council in advance of every meeting, that packet will contain the minutes of the Planning Commission, Community Facilities Commission, Park and Recreation Commission and all other advisory commis- sions in the City? THE WITNESS: Right, right,. MR. LARSON: Is it not a fact that if you..re� �,.._ going to do your homework in advance of a meeting,""' .`.' you're going to read all of those minutes? THE WITNESS: Right. I guess the only -tiling .; is; I don't know -- well, for sure I guess probably preparatory to the August 15 Council meeting at which KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 612-224.87 t 1 I 14 1 apparently I was in attendance, in that packet there 2 would have been something in there either relating 3 to the specific item. 4 BY MR. DUFFY: 5 Q Do you ?seep personal notes or do you keep that packet; , ` 6 that you received at those meetings that you would have 7 it available.for reference? s A You know it happens every time. I can keep stuff for ten 9 years and never have a.use for it, and the minute I throw 10 it away, I have. I went through stuff about a month ago, 11 about two weeks ago, and I gent -through all my Council 12 things. There were a few..things .I saved that would have 13 been specifically brochures. In fact, I made up a bag to 14 give to Dick Matthews. I didn't even think of the r+elatioi 15 to this thing. 16 Mkt. %ARSON: Dick Matthews replaced. Nick on the 17 Council. Nick didn't choose to run. 18 A I would have pitoh6d that stuff before. It was a slow 19 Sunday afternoon, and I decided instead of having stuff 20 sit around the house, I:decided to toss it. 21 BY MR. DUFFY : 22 ..:. So at the present time then you have no personal notes or,.;. 23 you do not possess the packet that you would have received 24 in advance of the August 15, 177 City Council Meeting?..-. 25 A Well, see that far back I probably would have pitched those KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 61 2.22d-871 1 1 2 3 4 5 6 7 8 9 10 ,A 11 12 13 14 rAa 15 16 Q 17 18 19 :A 20 21 22 23 A 24 25 15 before anyhow. I think most of the stuff that T went through would have been 078 because you can't keep that stuff forever. That packet is an inch and a half thick. If you kept them forever, you might have to go to the storehouse for that. At the City Council meeting on August 15, 1977, you were one of the members of the City Council who voted against the permit. Can you tell me what was your reasoning or why you voted against it? Well, I guess it would have been -- in nay opinion it would have been the intensification of a non -conforming use which would be in violation of our zoning ordinance. What facts ---- I'm sorry. Go ahead. That was perceived by us after discussion with Mr. Fisher and Mr. Ericson I believe. [ghat facts do you personally recall having available to you that convinced you that this would have been an intensification? It would have been enlarging the capacity of the. plant. Do you recall some testimony that it would have in faet' increased the capacity of the plant or enlarged.the w .. ,wry... y. capacity of the plant? I guess that's one of sort of a common sense deduction:,. to make, that if you have room for more, if you enlarge,4' the area for holding materials and that kind of thing, KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 612.224-871 t 16 1. that you have increased your capacity. If you enlarge 2 your premises, why you have more capacity I guess. y 3 Q How do you define capacity, you personally, of a -plant? 4 Is that output or what do you use when you say capacity. =: 5 of the plant? 6 A Capacity is a word in itself I guess. It probably means 7 the ability to hold. 8 Q So in other words you weren't necessarily looking at 9 whether or not it would increase the output of the plant 10 or the profitability of the plant. Those weren't factors 11 or were they factors? 12 A There were factors. Another thing is they're really 13 uncheckable factors, undeterminable factors. if you 14 increase the capacity of something, a person could tell 15 you that, "hell, we're just doing it. we're not really 16 going to build any more or produce any more. we're just 17 doing this." But you have no way of checking it unless is you have someone there who has monitored it before and is 19 going to monitor it afterwards. 20 Q Do you recall any testimony that it would in fact. have""'-", 21 increased the capacity of the plant to do business? -Y=' 22 A I think there was concern, concern on the members on theyy`= 23 part of the Council. 24 Q was there anything in the packet that you can recall that 25 referred to an increased capacity of the plant? KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 61 2-2 24-87 1 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 A The fact that they were requesting the silo .itself. In my mind that would be self-evident or one step removed... from being self-evident. Q Do you recall either yourself or any other member of the-.'- City Council inquiring about whether or not the addition> of the silo would have increased the output of the plant,' the production of the plant, intensify the production of the plant? A I don't specifically recall. I'm sure someone probably would have raised the question. MR. LARSON: If you'll wait just a moment. A Mr. Neuveaux stated in his motion to deny that he gave that as a reason for denying in that it would be an' intensification of a non -conforming use. BY P.R. DUFFY: Q With regard to the application itself", if it wasn't an intensification of a non-conforming.use, did you have any evidence t tha you can recall which would have indicated that the plant construction was by itself not in conforman with the building codes of the City? A Run that b me one more time. I y guess it's a long _ sentence.'`; Q Let me see if I can rephrase it for you. if we assume that it wasn't an intensification of a non-conformincj use; was there anything else with regard to the permit KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 61 2-224-B71 1 0 1 2 3 4 51 6 7 s 9 10 11 12 13 1 14 1 15 16 17 18 19 1 20 1 21 22 23 24 25 1 18 application which would in your mind have led you to vote against the permit? For example, it didn't meet -.the. building codes? A I guess probably not. I don't think there would have been any. 0 So as you can recall at least when you voted. in August of 1977, the only disqualifying aspect of the application was that it was in your mind an intensification of a non -conforming use? A I guess I would.say so. I woulc'.t.say that was the only thing. There might have been some other things in the back of my mind. 0 Could you.tell me what they might be? A I guess how or what it would like. I think some things were presented to us which MR. LARSON: Well, Nick, dial you take into consideration. at; -any -.-.time the specifics of the building permit application which showed its height, size and cubic content? THE WITNESS: hell, I guess generally stating.._ what it would look like, right. BY MR. DUFFY:, 0 In your mind, do you feel that -you a$ a member of the' City Council would have authority to deny a building permi' because you didn't like what it looked like? KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA SSIO1 PHONE: 61 2-224.H71 1 19 1 A Well, Like I said -- like I stated, it was in the back of 2 my mind. I think the one consideration of itself was 3 enough to deny the building permit. 4 Q I understand that. But you indicated there were some 5 other things that you were thinking about. What I would,; 6 like to do if I can is just isolate what they might be.r 7 one thing you indicated was the way it might look. I'm 8 interested in finding out whether or not you think that 9 that should be or is a factor as a member of the City 10 Council in denying a building permit. 11 A I think it should be. I think it is. 12 S Do you think that assuming that it meats all of the 13 criteria for building permits but you don_'t-like the way 14 it looks, you'd still have the authority to deny that 15 permit? 16 A I don't any more because I'm not on the Council.. 17 No, but at the time? 18 A I guess you have to vote your own conscience. I was not 19 elected to the Council. I was appointed to the Council 20 to fill a vacant term but,I guess, as I always try to,.do,. - 21 even in the planning Commission, is 1 try to feel forA"-what" 22 or have some feeling kind of for what the people- -YOU 23 know ---what you could really expect other people in the: ;^ r 24 City to put up with. I guess if somebody has to drive -by' 25 something that is in your mind unsightly and grotesque, KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 612-224-87 t 1 0 20 1 then we have to at least question whetheror not it might 2 be in somebody else's mind, and whether or not they might 3 feel the same way about it. I'm not saying that the 4 red-e-mix plant is unsightly or grotesque. I'm just 5 citing that as a matter of principje. 6 Q Did you think it was unsightly and grotesque, you 7 personally? 8 A I stated before I really never paid that much attention. 9 to it because I didn't go by it that often personally 10 myself. I could see where some people might be concerned 11 about the sight of it. I. guess an additional matter of 12 concern at the time Was the amount of additional. pollutants 13 in the air this silo might cause. This was a concern of 14 mine. 15 was there any factual information available which indi- 16 cated that there would be additional pollutants in the air 17 because of the silo? 18 A Again I guess this is probably one step removed from being 19 self-evident. If you have.some pollutants in the air from 20 one being there already, and you had zero before, you 1•d-:,:., ; 21 have to conclude that if you have two there, you're-goin _ g. . 22 to have more. 23 Q Was there some evidence presented to the Chanhassen City 24 Council or the Planning Commission during the period of 25 time you served on either of those bodies to indicate that KIRBY A. KENNEDY & ASSOCfATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 61 2-224.871 1 21 1 Apple 47alley Red-E-Mix was discharging. pollutants in the 2 air in violation of any existing state or local regulation 3 or laws? 4 A I guess you've qualified that in a variety of clIfferent 5 ways. I don't really like the word "discharge". That 6 kind of sounds as if it's intentional. I believe the. 7 matter was brought up. I don't see it in the minutes but 8 I do recall some discussion that there was some concern 9 about the dust and things from the red-e-mix. I don't 10 think.dischargs is a proper word. I'm sure it's not 11 intentional. I'm sure it's just a product of their 12 I processing. As to whether or not it would be in violation 13 of any Minnesota State laws, I have no idea. 14 4 You don't recall any evidence indicating one way or the 15 other that it was in violation of any existing laws? 16 A Right. That doesn't mean that there weren't pollutants 17 coming out of there or dust or whatever you want to call 18 it. is Q Again to follow that up, do you feel that you as a member 20 of the City Council would have a right to consider this 21 pollutant factor if we assume that Apple Valley Red= 22 was not violating any existing laws with regard to what__` 23 1 call discharge of these pollutants? 24 A Well, again I think so. Perhaps they're not violatin4 25 them with one silo. Maybe they would be with two, and KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. 5T. PAUL. MINNESOTA 55101 PHONE: 612.224-871 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 .17 18 19 20 21 22 23 24 25 22 then you're stuck with it or they're stuck with it and having to close it down. So I think it's a suggestional, factor that you have to make. Q Did any of the other members of the City Council -that you..,._ can recall express any concern over this pollution potential or -the other aspect of it, that is that it was unsightly' A I believe there was some discussions. I think there must have been at the Council meetings. I don't see those in the minutes but I'm sure there was some discussion. Q At least as you recall that was something that was in. the back of your mind? A yea. Q Is your answer yes? A Right. Q Did you consider requesting information either from Apple Valley Red-E-Mix or from the appropriate professional staff within the City regarding the question of pollution? A I guess I thought that had been done. I thought somebody. was going to request the State to come out and test;to see what was coming out and whether or not --- I think there was also some concern expressed as to whether or# not it seems to me that the fly ash residue, and , i'Tt;;-j*. not an engineer or chemist, but to see whether or not th-e, fly ash residue contained -- somebody had heard I guess KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 6 t 2.226-871 1 23 1 they get the fly ash from NSP or I don't know there it 2 comes from. That this residue contains some harmful 3 things like strychnine or cancer causing agents or some 4 thing. It seems to me there was concern at one of the 5 meetings about: That as to whether or not that was actually 6 true, whether or not it would be sufficient to be 'of more 7 concern. s Q Do you know if any member of the City staff inquirdd='.into 9 that and presented any information to the City Council 10 about it? 11 A I don't really recall whether it come to us and what the 12 extent that was followed up on. 13 Q Were you aware of the fact that Apple 'Valley Red--E-Mix 14 has a permit from the Minnesota Pollution Control Agency 15 with regard to its operation out in Chanhassen? 16 A Not as I recollect right now. I guess I'm not aware of 17 it if they had or didn't have one or that they would have 18 needed one. 19 Q Then you wouldn't have been aware of the fact that the 20 permit was issued because they were in compliance. -with 21 then existing state and federal laws with regarding.-t,6 the: 22 discharge of possible pollutants? 23 A Well, I guess it's like the tree falling in the forest.,4:;vti:Y 24 I guess if you don't know whether if it's there or notwrvu. 25 you don't know whether it fell or like I say I was unaware KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL- MINNESOTA 55101 PHONE: 61 2-224-871 1 1 2 3 4 5 6 7 8 9 10 11 12 14 13 14 15 16 17 18 19 20 21 22 23 24 25 24 that they had a permit or required to even have one. Q Would that knowledge have been of any importance to you in the consideration of one of those problems in the back of your mind if you had known that? A It might be possible. I don't recollect now, and I. don't`: see it in the minutes but it's possible that 1-1r. :EricsonF or Mr. Fisher may have mentioned that that evening . I don't know. Q Were there any other factors in the back of your mind other than those which you've mentioned which you gave consideration to at the time this application was made? A I don't recall. that. MR. LAIRSON: At this time you don't recall any. THE WITNESS: No. BY MR. DUFFY: Q When this matter came up for reconsideration in April of 1978, do you recall your position with regard to that reconsideration at that time? A I would assume that I would have had them changed.. Q I would like to ask just a couple more questions.wjth=`_`_`<; regard to the intensification of a non-conforniing-;u'se "so- I understand ghat you consider to be the factors that made that the reason for your vote. Could you list as. cozi=l v .Z cisely as possible what factors or facts you considered'' to reach the conclusion in your mind that this was an KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA S5101 PHONE: 672-224-8711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 intensification of a non -conforming use? A I guess I thought I already had. Let's see. i'll go through this again. You're putting up more capacity, and I guess you really have no way as ?long as the.capacit; is there I guess, you have to conclude that if you're increasing the capacity of something of 'a plant to product something that they're probably going to produce more of it® Q I have no further questions. DIRECT EXAMINATION BY MR. LARSON: Q Nick, I'm surer you're aware of the provisions of the zoning ordinance within city government for many years, and you were on the Planning Commission at the time we drafted the zoning ordinance. The zoning ordinance in its section 2.02 dealing with non -conforming uses states as follows, "No non --conforming use shall be enlarged, altered or increased or occupy a greater area than that occupied by such use on the effective date of this ordinance or any amendment thereto." h. Nick, isn't it fair to conclude that in the matter*.,--, of the application of.Apple Valley Red-E-Mix for the second cement silo that you and the other members. of Council considered that actually by reason of the con-- KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG." ST. PAUL. MINNESOTA 55101 PHONE: 612.224-87 1 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 struction of a tower 40 feet in height containing some 41000 feet of cubic volume was in fact an enlargement;or. occupied a greater area than had previously existed? MR. DUFFY: I'll object to the question. He's_;. leading his witness, and he's asking for a conclusi_o, that this witness can't make that is, what waa`in the minds of the other members. Rif MO T.TbVn%T_ Well, was this a factor that entered into a Your mind. You may answer the question notwithstanding his objection. A Yes, just as I indicated before. Q Now whether that structure* proposed structure, contained fly ash or cement - or water or air, it would still. _con stitute an enlargement of the non --conforming use, the physical structure, and occupy a greater area:, would it not, Nick? A Yes. MR. DUFFY: I'll object again. He's leading the witness. BY MR. i.ARSON: Q sir. Duffy seemed to stress a great deal or places a great, deal of emphasis i mean on the fact that. apparently some type of permit had been issued for this operation b y the ..E Pollution Control Agency of the State of Minnesota. ;You' , are aware, aren't you, Nick, that notwithstanding the KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE: 612-224-87 t 1 1 2 3 4 5 6 A 7 Q 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IA 27 issuance of any permit by any other state agency or the federal government that neither the federal government nor the State of Minnesota, nor its agencies, control zoning matters in a municipality, namely, Chanhassen, is that correct? Yes, that sounds. right. And you're aware that we in Chanhassen reserve that right notwithstanding the issuance of any such permits, is that correct? Right. MR. DUFFY: Same objection. He's leading the witness on both of the last questions. BY Mid. LARSON: Q And the pollutants that you referred to were limited not only to ghat might be exhausted from the fly ash silo in their manufacturing process but also the increase in dust generated by the great number of trucks that operate in and out of that structure, is that correct? A it's a general increase in dust or whatever. Like I said, there could be cement dust. There could be fly ash 'or.'.;. whatever is in the fly ash and dust from removing. the sand and gravel from the roadway. w: MR. DUPIFY: Same objection. He's leading ,the witness. MR. LARSON: I have no further questions. Are KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55101 PHONE; 612.224-8711 a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 II 28 you through? MR. DUFFY: Yes. MR. LARSON: Nick, you have the right under our Rules of Civil Procedure to have this young lady transcribe your deposition, and you have the oppor tunity to read it to insure that you have correctly answered the questions and she has correctly reportec the questions, or you have the right to waive that privilege. We'd recommend that you waive the readinc and signing of the deposition. Is that satisfactory with you? THE WITNESS: I guess if that's what you usually do I don't. KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK SLOG. ST. PAUL. MINNESOTA SStOt PHONE: 61 2-224-871 1 t t5 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 R 29 STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) Be it known that I tools the deposition of NICHOLAS WARITZ, on the 20th day of February, 1979, at Minneapolis, Minnesota, - That I was then and there a Notary Public in -and for the County of Hennepin, State of Minnesota, and that by virtue thereof, I was duly authorized to administer an oath; That the witness before testifying was by me first duly sworn to testify the whole truth and nothing but the truth relative to said cause; That the testimony of said witness was recorded in steno- type by myself and transcribed into typewriting under my direction, and that the deposition is a true record of the testimony given by the witness to the best of my ability; That I am not related to any of the parties hereto nor interested in the outcome of the action, - That the reading'and signing of the deposition by the witness and Notice of Filing} were waived. WITNESS MY HXND AND SEAL this 27th day of February,-.1979.-,;` P.- Jeanne M. Parxin Court Reporter z KIRBY A. KENNEDY & ASSOCIATES 1255 NORTHWESTERN BANK BLDG. ST. PAUL. MINNESOTA 55T01 PHONE: 612-224-871 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF MINNESOTA COUNTY OF CARVER DISTRICT COURT FIRST JUDICIAL DISTRICT Apple Valley Red-E-Mix, Inc., a corporation, Plaintiff, vs. The City of Chanhassen, a Minnesota Municipal corporation, Defendant. Deposition of WALTER HOBBS, Taken pursuant to Notice of Taking Deposition, and taken before Jeanne M. Par.sin, a Notary Public in and for the County of Hennepin, State of Minnesota on the 13th day of February, 1979, at the City Hall, City'of Chanhassen, State of Minnesota, commencing at approxi- mately 9:00 a.m. 1910 Northwestem Financial Center Minneapolis, Minnesota 5543) Phone: 612-835.7008 at � KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestem Bonk Bldg_ St. Paul, Minnesota 55101 Phone: 612-224-8711 I 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: GERALD S. DUFFY, ESQUIRE, of the law firth Cif Petersen, Tews and Squires, 580 Northwestern National Bank, Saint Paul, Minnesota 55101, appeared for and on behalf of the Plaintiff. BRUCE E. GOLDSTEIN, ESQUIRE, of the law firm of Petersen, Tews and Squires, 580 ?northwestern National Bank, Saint Paul, Minnesota 55101, appeared for and on behalf of the Plaintiff. RUSSELL LARSON, ESQUIRE, 1900 First National Bank Building, Minneapolis, Minnesota 55402, appeared for and on behalf of the Defendant. I N D E X 2 PAGE Cross -Examination by Mr. Duffy . . . . 3 Direct Examination by kir• Larson . . . . . . 44 Recross-Examination by Per. Duffy . • . . . . 45 E X H I B I T S Hobbs Deposition Exhibit 1 was marked for identification 1910 Northwestern financial Center Minneapolis, Minnesota 55431 Phone, 612-835.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bonk Bldg. St. Paul, Minnesota 55101 Phone: 612.224-8711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 WHEREUPON, the following proceedings were duly had: WALTER HOBBS, a witness in the above -entitled action, after having been first duly sworn, deposes and says as follows: CROS S-EX_k S I NATION BY MR. OLTFFY : Q Would you identify yourself, please? A Walter B. Hobbs, Q Your address, Mr. Hobbs? A 6671 Powers Boulevard. Q Mr. Hobbs, I'm going to be asking you some questions here today, and if you don't understand the question ask me to rephrase them. This is a discovery deposition, and'I'm just trying to get some information. I'm not trying to ask trick questions. If we're not comrmunicatin . please let me know and we'll try to rephrase the question or something so that we can get an answer, so that i..can give you a question.that you understand, and your -can give me an answer that will help me understanda little bit more about this case. x We would ask that you answer your questions out `loud: yes or no so that the Court Reporter can take them down r, - d :> ' 1910 Northwestern Financial Center Minneapolis, Minnesota 55431 +- Phone: 612-835.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bonk Bldg. St. Paul, Minnesota'5510t Phone, 612.224.8711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A Q A Q A Q A Q A Q A 0 A 4 4 to the extent that they could be answered yes or no rather than shaking your head. Where do you live, Mr. Hobbs? In Chanhassen. Chanhassen. And you are a member of the Chanhassen City Council? Yes.} What is your position with the Chanhassen City Council?.... Mayor. 1s that an elected position, that is are you elected to the office of Mayor or are you elected as a City Council- man and then elected by the Council as Mayor? You're elected Mayor. And you actually run for that position? That's correct. How long have you been Mayor in Chanhassen? Two years, Could you give me the date you first became Mayor? 1977, January 1. And prior to being mayor of Chanhassen, did you serve as a member of the City Council?..,. Yes. For how long had you served as a member of the Cit y Y- Council? u- ,s Three nears. Could you dive me the mate when you first became a member KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Financial Center 1255 Northwestern Bank Bldg. Minneapolis, Minnewta-55431 St. Paul, Minnesota 55101 Phone: 612-835.7008 Phone: 612.224.8711 Air t of the City Council? 2 A. January 1, 1974. 3 Q And prior to being on the City Council, did you serve in 4 any capacity in the City of Chanhassen? 5 A Yes. 6 Q What was that? 7 A The Human Rights Commission. 8 a Were you on that Commission or were you Commissioner or 9 what was your position within the Human Rights Commission? 10 A I was Chairman. 11 0 And isthat an appointed Position or an elected position? 12 A That was appointed. 13 Q And how many years did you serve on the Human Rights 14 Commission in Chanhassen? 15 A Approximately a year and a half. I couldn't give you an 16 exact date. 17 Q What is your occupation? That is, what do You do when 18 you're not helping operate the City of Chanhassen?_ 19 A IWOrk for Big Stone Canning Company. 20 Q Where is that located, Big Stone Canning Company 21 A The corporate office is in Jonathan. 22 0 What is your position? 23 A Assistant Vice -President, Marketing. 24 Q What does that company do? 25 A Cans vegetables, juices and fruit drinks. 1910 Northwestern Finoriciol Center ftnneopok, Minriesoto 55431 Phone: 612-835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 No"hwestdirn Bonk Bldg. St. Paul, Minnesota 55101 Phone: 612.224.8711 In 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ILI 0 S How long have you lived in Chanhassen? A Twelve years. 0 What is. your A No, hang on just a minute. Eleven years. Q ghat is youreducational background? A BA Degree. Q From cohere? A The University of Wisconsin. Q In what? A History and. Political Science, a double major. Q When did you graduate?; - A In 1966. Q Mr. Hobbs, we're here today because of a lawsuit that has been commenced by my client against the City of Chanhassen relative toa building permit. When is the first recollection you have, either as a member of the City Council in Chanha.ss'en or as its Mayor, of the Apple Valley Red-E-Mix Operation in Chanhassen? MR. LARS©N: :If you 'wish, Walter, you may refer to any minutes that you have that are available.`, A Would you explain the question? Are you. talking relative>: to a specific proposal by the Red-E-Mix or just the --fact''. that it's in Chanhassen? I'm confused. BY MR . DUFFY : Q Let Ire rephrase it. In an official capacity, either as a 1910 Northwestern Financial Center Minneapolis, Minnesota 55431 Phone: 612-835.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bank Bldg. St. Paul, Minnesota 55101 Phone: 612.224-8711 7 1 member of the City Council or as Mayor of the City of 2 Chanhassen, when was the first time in an official 3 capacity that you had to come to deal with Apple Valley,"--' 4 Red-E--Mix? 5 A► I'm sure it would ke 1975. 6 Q And your Attorney has indicated that you can refer ta7the"- 7 various minutes which you have, and perhaps what we can 8 do for the record is have there attached to the Deposition 9 as a group Exhibit. 10 SIR. DUFFY : Why don't you. mark them as a group 11 Exhibit. 12 (At this time Hobbs Deposition Exhibit 1 was 13 marked for identification by the Court Reporter.) 14 MR. LARSON: Jerry, there's one that I had over- 15 looked or forgot to catch.. 16 MR. DUFFY: Off the record. 17 (At this .time a discussion was held off the 18 record.) 19 BY MR. DUFFY : 20 Q fir. Hobbs, you have before you now ghat is marked as 21 group Exhibit 1 which is the various records of the _City'-: 22 of Afton relative to meetings --- ` - 23 MR. LAIR SON You said Afton. 24 MR. HUFFY; Excuse me. What did I says-�.Ij've , 25 got that on my mind. Strike that. •Off the record. KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Finoncial Center 1255 Northwestern Bonk Bldg. Minneapolis, Minnesota 55431 St. Pool, Minnesota 55161 Phone: 612-835.7008 Phone: 612.224•87ll 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (At this time a discussion was held Off the record.) BY MR. DUFFY : {? The City of Chanhassen, both Planning Commission~and city+ Council. These are not all of the records, are they? They're r econsidered. y just records at which the City considered.Apple Valley Red-E-Mix matters, isn't that true? A Again I'm confused. I would assume that these minutes from 1975 are inclusive on the meetings that did discuss Apple Valley Red-E-Mix. Okay. That answers my question. Now back to theoriginal question about when was the first time in an official capacity you were called upon to address matters relative to Apple Valley :red-E-Mix? You -indicated in 1975,-is that correct? A That's correct. Q what was that about.if.you.recall, sir? A I'm going to just look through here for a minute if you don't mind. That was referenced a re --building per for Apple: Valley Iced-E-Mix... Q And when in 1975 was that? :• Ye xv 'S i S ,dY,� A May 5, 1975.r# �.., Q And if you recall, what was the reason they needed re -building permit? A They had had a fire at their Red-E-Mix Piant. 1910 Northwestem Financial Center Minneapolis, Minnesoto 55431 Phone: 61 M35.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Nonhwestern Bonk Bldg, St. Paul, Minnesota 55101 Phone: 612.224-8711 •-"� .� - .... �.,wss�,A.�s.-..._�.- .--�-•�-r,�..—+: r,. �+..rw w- ..`^.;+'�:rPF•sirwf.s,,".'iww•�2:-�rr±u5rr.;s i-^�."..-ow.:..;...n.a..ra �o...a..u:e-.e_.�...�.F,�....oa.w»�w-•a..�.�_- r-1 9 1 Prior to the time that got to the City Council, had it 2 been considered by the Planning Commission, that re-build- 3 i.ng permit? 4 A It had. 5 0 Is that the normal procedure here in Chanhassen?,°":`. 6 A, Yes. 7 Q And was there a Hearing then on May 5, 1975, relative to 8 that re -building permit? 9 A It was a Council agenda item. 10 Q And what just briefly would take place at a Council agenda 11 item on a matter such as that?. 12 A The Council would discuss the item and them make a motion 13 whether or. not to allow the building permit or whatever :14 particular matter of buz;iness was before the Council on 15 the agenda -item. 16 Q Would you have before -you prior to the date of the 17 meeting any matters relative to the agenda items in - that 18 meeting? 19 A Yes, we would. 20 Q And. in the cases of Apple Valley Red-E-Mix and the Hay ,5th 21 1975, meeting, would you have had any plans or reco eInda-'. 22 bons or any data from the . Planning Commission of- the .t 23 City of Chanhassen? 24 A Yes. : 25 Q And do you recall or would you have any records available KIRBY A. KENNEDY & ASSOCIATES 1910 Northwr tern finonciol Center 1255 Nonhwestern Bonk Bldg. Minneapolis. Mmnc to 55431 Phone: 612-835.7008 St. oMinnesota 101 Phone: : 6l2.224.871711 1 2 3 A 4 5 Q 6 7 8 9 10 11 12 A ` 13 14 15 Q 16 A 17 Q 18 19 20 A 21 22 23 24 1 25 1 NUO 10 +,which might show when you personally would have received this data and what the data would have been? :Normally we receive an agenda packet on a Friday preceding a Monday night Council. Meeting. who prepares this packet? The City Administrator. Do.you have any recollection of ghat was in the packet that you received, if you. received a packet? Perhaps I should ask that question first. Do you have any recollectionof receiving the packet on the Apple Valley Red-E--?fix permit of 1975-prior to the May 5th meeting? I.don°t specifically remember receiving the packet; but I cannot rexreember in seven years not receiving a packet before a Council Meeting. So we can assume that you received a packet? That's correct. Do you recall what was in the packet or have any recollec- tion of what materials you viewed personally before the. May 5th, '75, meetings In a general sense, tm would have can any agenda i-Eem : ai,31�� ' of the background material that had been presented'by an applicant or developed by the staff relevant to that-': matter in the packet. ,� r In the City of Chanhassen, do you maintain.records'of these applications. and the packets that are presented to KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Finoncial Center Minneapolis, Minnesota 55431 12 t. OO,NortMinnesota Bonk Bldg. _ St. Paul, Minnesota 55101 Phone: 812-835-7008 Phone: 6i2-224.8711 t c _ - 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 . 23 24 25 the City Council as gar back as 1975? A I'm sure vie do. Can I refer to Counsel? MR, rARSON: I think we have recently instituted a policy of retaining the packets for each meeting -.v. Whether that policy, was infarce back in May of 1975 I have no way of knowing now without first checking.-;` the records. I should -point out that during --- we've had several change% in administration and adminis- trators, and.each man has a little different way of doing things. Our current Manager, Ashworth, I be- lieve instituted this policy of keeping the agendas. We may well have the packets for May 5, 1975, but again I'd have to check our records. MR. DUFFY: Would you check it? MR L 'RSON* I wouldn't be able to do it now. MR. DUFFFFY: No, no. I understand that If there is something available, it could be made avail- able to us for inspection? MR. LARSON : Sure. MR. DUFFY : Off the record. H ' (At this time a discussion was held off the•; record.) 3 ss BY MR.- DUFFY : ai Q At any rate, Mr. Hobbs, we can be fairly well assured . that you reviewed something regarding Apple Valley Red-E-- 1910 Northwestern financial Center Minneapolis, Minnesota 55431 Phone: 612.835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bank Bldg. St. Paul, Minnesota 55101 Phone, 612-224-8711 r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q .A W A W A 0 A W 12 Mix's application before the May 5, 1975, Hearing? Yes. Do you have any personal knowledge of the Red-R-Mix Plant,.. itself that you would have obtained other from an outside' u inspection or some other means which is not included in the packet or which you may have dug up on your own? only in terms of on -site inspections, yes. I've been down there -as an individual several times. Would this have been before May 5, 1975, or do you recall at all? I'm sure I looked at thestructureafter the fire, when the date was, I couldn't tell you. And just generally if you can recall, what was your opinion of the operation in 1975 at or about the time of this May 5, 1975, Hearing? In relation to what? Well, were you favorably impressed with it? Did you consider it to be an asset to the City of Chanhassen? were you unfavorably impressed with it? Did you think it was damaging to Chanhassen? -.'ghat sort of thing, - , ,.�'` j' f 4 I felt it was a concrete or cement operation, tahich a necessary, in the sarong section of the City : operating,N. legally under a legal non -conforming use permit.�` Now you say in the "wrong section of the City". Whatr. do you mean by that? 1910 Northwestern Financial Center Minneapolis, Minnesota 55431 Phone. 612.835.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Nonhwesterrt Bank Bldg'. St. Paul, Minrrmto 55101 Phone: 612-224.8711 13 1 A Zoning -wise. 2 Q Do you recall what the zoning was'in 1975? 3 A My recollection would be C3 = but I would have to revie-4.- .: 4 that if you wanted to know. 5 Q That's fine. dust your recollection is okay. Again' beak , 6 in may of 1975, you had your choice or someone would :have-.. 7 asked you, would it have been your choice to move it from 8 its location there in the City? 9 A Yes. .. 10 Q What is your recollection of what happened then on.May 11 5, 1975, relative to the. Apple Valley Red-E--Mix's applica- 12 tion? 13 A Again referring to the minutes. You said that was okay 14 in terms of my recollection. 15 Q Certainly. 16 A The application :for the 'building permit was passed onto 17 the City Council. At that time it was reviewed. The 18 City Council voted in favor of letting theta rebuild the 19 operation provided that.we were given a certification 20 that the building was less than 50 percent destroyed 21 the fire. 22 And -how did you vote with regard to that application3 23 A 9 T voted in the affirmative. '. 24 In other,words, you voted in favor of allowing thew to,:;-., 25 reconstruct the Red-E-Mix Plant provided that it was Less KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Finonciol Center 1255-Northwestern Bank Bldg. Minneapolis, Minnesota 55431 St. Poul, Minnesota. 55101 Phone: 612-835-7008 Phone: 612-224.8711 i w 1 than 50 percent destroyed? 2 A That's true. *; 3 Q Can YOU tell me why you were in favor of the reconstructic 4 permit at that time? 5 A I think when you sit as a member of the City Council, ,yoU' ' s have to, to the best of -' -` your judgment and abil,ity,``"earry - 7 out the. spirit .and intent of your ordinances. As an 8 individual.., as f stated earlier, I would have dust as 9 soon have seen the Red-E-Mix Plant moved. My recollec- 10 titan states that if a non -conforming use is less than 11 50 percent destroyed by a fire, then legally they have 12 the right t0 rebuild on that site. If it's more than 13 50 percent destroyed by a fire; the City Council could 14 at that time deny a building permit. 15 My affirmative vote was rased on the fact that if it 16 was certified as being less than 50 percent destroyed by 17 the fire, that's the .way I.unuld have.to interpret the 18 ordinance. 19 With regard to that meeting of May 5, 1375, do you -have 20 any recollection of -- well, strike that. When the. 21 next occasion that Apple Valley Red-E-xlix and its .-o�iera ._j..� 22 tion in Chanhassen was before the City council? f 23 A _: Again I'm going to refer to the minutes. Referrin .to. 24 Exhibit I. is that what we decided to call it? 25 Q Yes. KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Finoncial Center 1255 Northwestern Bank Bldg. Minneapolis, Minnesota 55431 - Sr. Paul, Minnesota 55101 Phone: 612.635-7008 Phone: 612-224.8711 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The August 4th City Council, regular City Council Meeting MR. LARSON: What year is that? THE WITNESS: 1975. PV Mn nTM17V N IA A A What was before the City Council at that time relative' to' 'A" Apple Valley Red-E-Mix? At that time it was noted in the City Council k4eeting that the Planning Commission was concerned about the Red-E-Mix Plant. In general they didn't feel that the building was proceeding as they had out -lined. Did you personally, to the best of your recollection, do any independent investigation relative to the stated concern of the Planning Comission? .In terms of a time reference, I,could not state positively whether before this meeting.or right after it. I was down there as I said earlier. I've looked at it several times and followed the construction through with on -site inspections.. I have done that. Do you have any recollection of what your feeling was with regard to Apple Valley Red-E-Mix's compliance at,.or',about­'. the time of that August .4, 1975, meeting? j` Again in general, when the City Council..passesa nio tion-#,,'. that motion outlines the foterms and.conditions r. .approval of any action we've taken, and I feel very s"O."rongl y that those terms and conditions should be complied with by 1910 Northwestern Financial Center Minneapolis, Minnesota 55431 Phone: 617.835.7'008 KIRBY A. KENNEDY & ASSOCIATES 1255 Nortl,_,,r,_ Bank Bldg. St. Paul, Minnmro 55101 . Phone: 612.224.8711 1 2 3 4 5 6 7 8 � 9 • 10 A 11 12 s 13 14 i f' n F 15 M w k r 16 17 ` 18 f A 19 r t 20 h 21 22 23 24 25 the applicant. Do you recall whether or not you felt at that t1ire on or.; about August 4 of 1975, that the Planning Commission's:;:: concern was valid or invalid with regard to compliance try. Apple Valley Red-E-Mix? r r` I felt it was valid. What did you do, if anything, with regard to your fee3.irsgE that their concern was a valid concern? As an.individual, nothing. As a member of the City Council? As a member --..of the City Council, we directed the staff to investigate whether or not the concerns of the.. Planning. Conmission were indeed valid and to report back to: us. What specific facts, if any,.that'you can presently recall led_ you to.believe at the time of this- August 4, 1975, Hearing:that• the Apple Valley Red-E-Mix was .'.not in compli-.i ance? i:think the specific facts would have been the lack of landscaping going on at the plant at that time would have been agreed to by .the applicant. This landscaping, did you consider that in your own .mind. personally to be a condition for the granting of rt;h.' reconstruction permit granted by the City Council.�;.on M'ay.:: 5, 1975? 1910 Northwestern Finonciol Center Minneapolis, Minnesota 55431 Phone: 612.835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwes wn Bonk Bldg. St. Povl, Minnesota 55101 Phone: 612-224-8711 17 1 A Yes. 2 Q And did you consider that to be a valid exercise of the 3 City Council's powers with regard to the granting of that_'. 4 permit? ;. 5 A yes. 6 Q Were there any other conditions that you can presentl 7 recall in your own mind relative to the granting of the 8 reconstruction permit to Apple Valley Red-E-Mix back in 9 'May of 1975? 10 _ No. 11 3 `Are there any other conditions which you feel that:Apple 12 valley Red-E-Mix violated other than the landscaping 13 provisions? 14 A in' terms of landscaping, l think ray definition -would in- 15 ;'clude their tacit agreement to also paint the building. 16 I'm considering that as part of:landscaping, painting, 17 landscaping, fencing, projects around that property, 18 Q as it your recollection that if one would go to the 19 packet or to the application of May 5, 1975, that one 20 would find contained therein proposals by Apple valley , 21 Red-E-Mix to both paint and landscape that were rolies3 -; `... 22 upon by you as a member of the City Council? ant 23 A Yes.. k t? �S 24 Q .And were these proposals specific? That is, did'they 25 spell out for instance the size and type of trees and the KIRBY A. KENN€DY & ASSOCIATES 1910 Northwestern Financial Center 1255 Norrhweslern Bank Bldg. Minneapolis, Minnesota 55431 _ St. Paul, Minnesota 55101 Phone: 612.835-7008 Phone. 612-22. -8711 W I! 1 dates upon which these various conditions were going to 2 be completed? 3 A In referring to Exhibit 1, the Council minutes of may . h- 4 1975, it was stated at that time to the Council that 5 Apple Valley Red-E-Mix was proposing to reconstrcict thy`..•,'. 6 damaged cement g plant by adding colored metal flrwooden .. 7 panels to screen the hopper mechanism that was damaged in 8 a recent fire. They are proposing toconstruct a redwood 9 fence- along the east property line, State nighwray f right- 10 of --way, and landscape along.the railroad tracks. Apple 11 Valley Red-E-Mix has agreed to furnish the City with a 12 detailed -landscape- plan prepared by landscape architect . 13 lie did - not have the detail at that time on the size or 14 the variety of the tress, That was to be `forthcoming from 15 the ' applicant. f'. ' 16 Q Do you have any.recollection of whether or not thecondi- 17 tions of the permit. were conditions that were suggested 18 by -Apple Valley Red-E-?fix or by the City? 19 A To the best of my recollection., at that point in time we 20 were working with the applicant, Apple Valley 21 and it was'my personal feeling that these conditions Cain$ 22 about by a- group agreement'. 23 MR. LARSON: Jerry, I'm a little confused -here.', ' 24 We're talking about events that took place in' 1975 25 after the fire. The issue presented by your-litiga- KIRBY A. KENNEDY & ASSOCIATES 1910 Nonhwgtern Financial Center _ 1255 Northwestern Bank Bldg. Minneapolis, Minnesota 55431 St. Paul, Minnesoro 55101 Phone: 612.835.7008 Phone: 612-224.8711 ••:-•-• '•��. •_•1.._ - iFizs!'�T-SM:�+,, _ aR.l�"+fF-Yt 2rt:r'•r.xr.,M1'Rr^st•+nv+T.wv`aMe.w.swwr.-.+ _ .- ,1 2 3 4 5 6 7 s 9 E 10 11 t 12 1. 13 14 15 16 17 18 19 20 21 22 23 24 25 1[ tion is a single issue involving an application for a building permit for a fly -ash silo which action was taken by this Council I believe in 1977 and 17$a I fail to see the materiality of all of thins' ~ancient history. MR. DUFFY: For the record, the :materiality, at,:.' least with regard to this member of the City Council is that he has been a member of the City Council through various years. l think I have a right to inquire into some of the background that he remembers with regard to the relationship between the City and the applicant with the idea of exploring whether or not he possessed some preconceivad`feelings one way or the other about the applicant which may or may not have had an impact. on his .decision to vote against the building permit that came up in 77 and 178. That's the purpose behind it. MR. LARSON: I'll allow further questioning on. the subject but I reserve the right to instruct the witness not to answer if it � ;"'� ,I gets too burdensflin.a � : ���,,�; here., ,L�, M.R. DUFFY: Certainly. y k BY MR. DUFF' i. Q if we might then go back into the August 4 meeting, do yol recall what, if anything, was done by the City Council to 1910 Northwestern finoncial Center Minneopolis, Minnewto 55431 Phone: 612.835.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bonk Bldg. St. Poul, Minnesota 55101 Phone; 612.224.8711 2 1 resolve the apparent concern by the Planning Cov"_, fission? 2 A Again referring to Exhibit 1, I feel that the action taker 3 on August .4th. was tohave the City staff review the matter. 4 and place it on a future Council agenda for discussion;,',_'_, 5 Q Teo you recall anybody else proposing that the applicants.' 6 Apnle valley Red-E-'fix, ,return to the city Council. for 7 purposes of explaining the apparent differences in their 8 response to the conditions? 9 A Not specifically,' Any time the Council places an item 10 as a regular agenda item, the people involved are notified 11 Q Would that then account for why in the August 11, 175, 12 meting Mr. Ericson from Apple Valley Red-r--.,Mix was 13 present? 14 A I..would assiame so, 15 Q Do, you have any recollection of his appearance, August 11, 16 1975, other than what is shorn on B.-.chibit 1? 17 .A No. is Q �o you recall any meetings yourself with Air. Ericson or 19 with members of the City Council or members of the' City 20 staff relative to this matter other than what; s show` '" nn ,- k 21 Exhibit 1 on August 11 of 175? 22 ANo. 23 Dal you recall personally ever going down to the site'to 24 inspect or to see whether or not again in your owe `.mind 25 .there was compliancy: or -non-compliance with the condition l' 1910 Northwestern Financial Center Minneapolis. Minnesota 5543) Phone: 612.835.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestem Bonk Bldg. St. Paul, Minnesota 55101 Phone: 612.224.8711 L 1 A 2 3 Q 4 5 6 7 A 8 9 10 11 12 13 A 14 15 16 17 18 A 19 20 21 22 23 24 25 21 As •.I stated previously, I have been down there several in looking at the minutes of the August 11 meeting, I```:"M.;`..'`}` don't see where you voted either for or against the re guirement of a bond. Do you recall offhand whether or not you were present at that meeting?- I was present. MR. LARSON: I can aet the minutes of that A;ktA if you want me to. MR. D'UFFY: No, I was just wondering if there was some reason why he didn't vote one way or the other on it. I would imagine in reviewing it that that's a typographi- cal error. Normally you can only vote yes or no or ab- stain, and those would"be noted. M..LARSON: Suspend the matter just one moment. I'll get the minutes for the August 11, 175.. I didn't even notice that when I was looking through it. (At this time a discussion. Baas held off the record . ) »L .�,,.. MR. LARSON: • The minutes note that xeveaux and Rurvers were present.. Hobbs and Shulstad were:; absent. whether they came in later THE WITNESS: It could be when I said I. was - there, I was looking back at the August 4th. I'm C KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern F rioncial Center 1255 Northwestern Bonk Bldg. Minneapolis, Mmnesoto 55431 St. Pout, Minnesoto 55101 - Phone. 612-835.7008 Phonr.612-224.8711 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 used to .looking at several pages of minutes and I saw my name. r MR. LARSON : Well p let's see. I see no indica-'; tion that either you or Shulstad were at that meeting I guess you'll have to stand corrected on that one., BY MR. DUFFYz Q I think we all understand that we're asking questions way in the heck back, and we're not trying to pin you to a dater. At any rate, assuming that you weren't present at the August li, 1975, meeting, do you have any knowledge about whether or not the $5,000 bond eras ever posted by Apple Valley Red-E-Mix to complete the matters that the City Council feel they were supposed to have completed as a `condition to the reconstruction permit? A No. Q You have no recollection? A My recollection would be that it has been posted. I couldn't tell you -definitely whether it was. Q With regard to that permit or that bond rather, do you have any recollection about whether or not the City has ever given consideration, to or passed a resolution to in effect take advantage of the bond and have the work `. done by. the City. and to the extent that Apple Val.ey hasn't done it in compliance with what the City A. That action has not been taken to date, KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Finonciol Center 1255 Northwmt•_rn Bank Bldg. Minneapolis, Minnesota 55431 St. Paul, Minne to 55101 Phone: 612-835-7000 Phone: 612-224.8711 I 23 1 Q Have you ever discussed that with Apple Valley about --you 2 know --we got the bond and we're either going to get it. 3 done by you or somebody else and bill you? 4 A I have not. ..5 Q Do you know if anybody else has? .. 6 A No. 7 Q Do you have any recollection of whether or not that's 8 ever come before you as a member of the City Council? 9 A To the best of my recollection, it has not. 10 Q Do you attend the Planning Commission Meetings_ as a matter' 11 of course? 12 A No. 13 I Q Do you recall if you've attended any of the Planning 14 Commission Meetings when Apple Valley Red--E-Mix matters 15 were being considered since 1975? 16 A No. 17 Q. ' No, you don't recall? 18 A No, I don't recall.. 19 Q So you may or you may not hare? 20 A s That.'s correct. , 21 Q 19d like you to refer to the Planning Commission Meeting';-=.- 22 f. of September 24, 175, where Mr. Ericson on behalf'`of the - :- 23 . Apple Valley Red-E_Mix read a.prepared statement:regard-'r._. 24 ing the completion of the work pursuant to the recon- 25 struction permit. Why don't you review that whole KIRBY A. KENNEDY R ASSOCIATES 1710 Northwestern Finandol Center 1255 Nonhweswn son# Bldg• - Minneopolis, Minnesota 55431 St. Paul. Minnesota 55101 Phone: 612-833.700B Phone: 612-224-87I1 24 1 -Planning Commission Meeting there. Do you have any 2 recollection as a member of the City Council of being.',,'-- 3 presented with information that was generated by the 4 Planning Commission at that September 24, 1975., meeting? 5 A Not specifically. Again I would assume that this would :I." 6 have been included. 7 Q in reviewing that now, do you agree or disagree with g Mr. Eri.cson's prepared statement that they have and are 9 in the.process of.complying with the permit? 10 A I would have to disagree with it. 11 Q In what specifics do you disagree with it? 12 A In loosing at his prepared statement at the Planning 13 Commission Meeting of September 24, item number one, I 14 woulddisagree with, the painting of the budding 15 Q And why? 16 A The building has not been painted. 17 Q Okay. 18 A Item number three, the split -rail fence. It has not been 19 fenced the way I understood.it would be. 20 Q How did you understand it. would be fenced? >-P . say; 21 A I think if we refer back to the earlier building permit;"Y 22 it.states in there the outlining areas of the property. 23 that would be fenced. I think there were three sides.` 24 Q You understood that all three sides would be fenced? 25 A That Is correct. KIQSY A. KENNEDY & ASSOCIATES 1910 Northwestern Financial Center Minneapolis, Minnesota 55431 12 t. q-1.NortMinns a 55101 Bldg. Phone: 612-835.7008 St. Pone Minnesota 711 Phone. G12.224.8711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 x A 0 A Q A 0 A a A a 25 And if I referred back to the packet of material in May of ' 75, it would either show or not show that the .�, proposal included fencing of all three sides? That's correct. I have only one more question with regard to what took place at that Planning Commission Meeting. Do you have . any recollection of receiving at or about that time any complaints from residents to you concerning Apple Valley Red-E-Mix? No. Have you ever received complaints from what you consider to be your.constituency with regard to Apple Valley Red-E-Mix? Yes. And can you give me a year? Would that be too much or has it been frequent or infrequent or how would you characterize the complaints? I think the most honest answer would be to tell you that there hasn't been a year that I haven't received some type of complaint since I've been on the Council;r What are these complaints generally regarding? :•t ti Dust, traffic. By 1hraffic", you mean the trucks? The trucks. � okay. 1910 Northwestern Financial Center- Minneopolis, Minnesota 55431 Phone: 612.835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Nonhwestem Bank Bldg. Sr. Pool, Minnesord 55101 Phone: 6)2-224.6711 1 2 3 4 5 6 7 8 9 10 _.::11 12 13 14 15. 16 ......17 18 19 20 21 22 23 24 25 2fj A And just the general appearance of the building as a gate way into our City. Q Do you share the opinions of those people who complained., with regard to that? A I think that would be a generalization I couldn't make, You know some people complain in. passing. Some people complain very proliferously. In some areas I do, and others I don't. 4 Which ones do you? A I think what you're doing is trying to get into degrees. Someone can say it's dusty...1 can say, "Yes, it's dusty." I'.haven't sat down and decided or discussed whether I think it's more dusty or less dusty than they do. You're going to get dust iuth,a cement plant. 0 How about traffic? A Yes. Q Youtve considered the traffic=_:to be a problem? A Yes. Is that something in your experi nce that's been all along even in 1975 or is it getting worse or what?� •; � rat �ry ': A cation,Ithink it•s been there all along, in terms of intensifi I:. -43} - 4 S •:• personally feel it has. I couldn't agaln give you a Percentage or degree. Q Could you give me a year when you feel it was intensify ing, began to intensify? Cr has it been gradual? - KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestetn Finonciol Center Minneapolis, Minnesota 55431 1255 Nonhw stern Bank Bldg. Phone: 612-835•1008 St. Paul, Minnesota 55101 Phane: 612.224.871 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 A It think it's been gradual. Q I haven't asked you this before but are you elected out of wards here? A No. Q In Chanhassen, you're elected at large? A At large. Q Where do.you live in the City of Chanhassen? A I - live .on Powers Boulevard. Q Where is that in relationship to the Apple Valley Red-E- Mix Plant? A I t-'. s to the vast and the north probably three and a half -or. four miles away. Q Do you go by the plant 'everyday?' Are you required to go by -it -to get to and from your home to your place of employment and back? A No. Q When was the next occasion when you as a member of the Chanhassen City Council had occasion to deal with Apple Valley Red-E-Mix here in Chanhassen? A Again referring to Exhibit 1, it`would be the regular Council meeting of November 17, 1975. `A Q I would again suggest that you might look October':;20, .-'•7�, _: A All right. Is November the one we stuck in? s . Q Yes. r`z: .A. Okay. That's fine. I just had November before October. 1410 Northwestern Finoncial Center Minneapolis, Minnesota 55431 Phone: 612.835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bonk Bldg. St. Paul, Minnesota 55101 Phone: 612.224.87t1 1 Q Okay. And if you could review that, I've just got a 2 couple of questions with regard to that. 3 A Okay.?> 4 0 Now it refers there to a new silo. is it Your recollec-'; 5 tion that that new silo was part of the proposal -,,of the 6 reconstruction for which the City granted a permit back .~. 7 in 11.14ay of 1975? 8 A No. 9 Q What's something new that was added after the fact? 10 A Yes. 11 Q And what -was •.'your opinion at that tine, that is October 12 of 1975, regarding %,ihether or not the Apple Talley Red-E- 13 Mix Plant could add that silo or not add that silo? 14 A T felt . that in terms of the building perrai.t, they could 15 not and should not have'.added the silo. 16 Q Prior to the October 20, 1975, meeting, had ,you ever had 17 occasion to see or have you had an experience with 18 Red-E-Mix silo, cement Silos? 19 A No., 20 0 Do you know what they look like? 21 A Only the pones at Apple Valley. ' 22 Q When in point of time did you first get an , - opPortizx�ity to ; 23 see the ones at Apple Valley? 24 A I couldn't tell.you. 25 Q was it before or after October 20, 1975? KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Financial Center 1255 Northwestern Honk Bldg. Minneapolis, Minnesota 55431 Sr. Paul, Minnesota 55101 Phone: 612-835.7008 - Phone: 612.224.8711 1 A 2 Q 3 4 5 6 7 A 8 9 10 11 A s 12 13 C2 I 14 r 15 .16 17 A 18 19 20 21 A 22 23 24 Q 25 A I couldn't tell you. Would I be correct in concluding at least that you, on:'or 41 about October 20, 1375, made the decision that a cement','"- silo was real property or affixed to the land as'opposed`' to personal property,, if you understand the distinction?_,, Maybe I'd ask you, do you understand the distinction? I believe I understand the distinction. I don't think I ever had cause to debate it. I think I've always felt that it was real property. Can.you tell.-me.why you think it is?. I thin'k. that anything that is physical in nature, that is permanent in'nature, bipcomes part of real property. If a particular item or 'Piece of equipment or whatever was not permanent in nature, that is it is not permanently) affixed, would you feel then that it was something for which a building permit was needed? I think that gets to be a very fine line --you know --it would depend on how you define permanent. I'll accept your definition. would you define permanent `*zL� -d. for me? rt' F I think permanent in my own mind would be something- Nit'.s placed on a site where the person that puts it thew has: no intention of moving it on a regular bass 4 -4. And what do you define a "regular basis" as? Once a week. KIRBY A. KENNEDY & ASSOCIATES I I 1910 Northwestern Finoncial Center Minneapolis, Minnesoto 55431 Phone: 612.835-7008 1255 Northwestern Bank Bldg. Sr. Poul, Minnesota. 55101 Phone: 612.224.8711 30 1 0 So if someone were to move it once a week at least, you 2 would feel in your mind that perhaps it was more like 3 personal property and less like real property? 4 Mt. LARSON: Walter,_ let me ask you a question. 5 if it were affixed to the real property by reason ; 6 of a concrete foundation, would that in any way 7 enter into . your consideration of whether or not --_ 8 A Yes, I would feel that that was permanent. I'm somewhat 9 confused with the line of questioning. The reason that 10 I'm trying to define it vary carefully is -- when you've 11 been involved in City Government as long as I have, some- 12 one could put up an 8 by 10 shed. I would consider that 13 as permanent even though they bought it from., Sears -you 14 know ---they put it in a spot in the their back yard and 15 they intended to leave it there. If the City Council 16 defined it as something that's moved once a week and the 17 guy, I'm being maybe facetious, went out and moved it 18 once a week and said therefore it doesn't constitute a 19 permanent structure, I'd have to take the opposite: 20 position. Do you see what I mean?Z. 21 IiUFFY : MR.x rr r 22 Yes, I understand. 23 A I guess the intent _- if the intent is that it gaincjto 24 stay in one place, I would consider that.as permanent. 25 Q All right. At any rate, at the October 20, 1975, meeting KIRBY A. KENNEDY &ASSOCIATES 1910 Northwestern Financial Center 125S Northwestern Bonk Bldg. Minneapolis, Minnesoto 55431 St. Paul, Minnesota 55101 r Phone: 612-835-7008 Phone: 612.22a-8711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 24 1 25 1 31 you made a ':notion to table action with regard to Apple Valley Red-E-Mix compliance until the November, '75 meeting. There was also some indication that you would'=': all go out and inspect the property. Do you recall` whether or not you did go out and'inspect the property?F.- A I don't recall the specific -- I don't recall specifically going out and inspecting it. I assume that I did. That was the reason for tabling the motion. Ca And de you know what specifically you, that is you personally, -were looking for when you went out to... -IC -he property? A I was looking to see whether or not I felt that the reconstruction was going a -long in compliance with the way I understood the agreement that had been made•several months before between the City and Apple Valley Red-E-Mix. Q And do you personally have any recollection outside of the A Q parameters of Exhibit 1whether or not you felt they were in compliance or were not in compliance about this time? As I indicated earlier, I've been down there several times, At no time have I felt.they were in compliance. S Now we're referring now to the November 17, '175,;'meeting,':. Maybe we can all take a little break because this!'is g, o ing to be the first time I've seen it. I'm going., -.to f have`. to read it ton. Off the record. (At this time a brief recess was taken.) 1910 Northwestem Financial Center Minneapolis, Minnesota 55431 Phone: 612.835.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bank Btdg, .St. Paul, Minnes to 55101 Phone-- 612-224.8711. . -x �:�'«i*'^[:^.�:4 .'P%...ie+.eMA!�^l.�x'�W�•: r�»YnthT.-n.�..sa.i.�n•:.rrf^s•.:« u.,.�.-raxyw.,,-+,w.» +mom--_»ac�,«a..w.nc�-..,. -.�.....�.-.'.........�-�...r�. 1 2 3 4 5 6 7 s 9 10 11 12 13 14 h 15 16 17 18 19 20 21 22 23 24 25 32 BY MR. DUFFY: 0 Mr. Hobbs, at the November 17, 1975; meeting, the City Council voted to issue a building permit to Apple Valley-., Red-E--mix .for-" the construction, of a fly -ash silo. 'Would.:., you agree that that's what the City Council did? ' •Y, i:e A Yes. Q Now did you at tha.t`:time consider that building permit to have been part of ehe reconstruction granted in May of 1975, or was i. a new matter, a separate matter? A It was a new matter. So far as you know, has Apple Valley red-E-Mix constructed t'he silo for which the City Council granted it a permit t on November 17, 1975? A. To thebest of my recollection, the silo was constructed before_we granted the permit. Q And you knew that at the time that you voted in favor of granting the silo construction permit? A That's correct. Q Was there any discussion do you recall about requiring 1-4 Apple Valley ?fed-E-Mix to remove that silo? A Yes, Q And ;ghat, if any, recollection do you have concerning:, . .'_ your own opinion about that as a suggestion?x,?ti_y€_ A I think it was a valid suggestion at the time. Q Why then did you vote to grant the building permit at tha KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Financial Center 1255 Northwestern Bonk- Bldg. Minneapolis, Minnesota 55431 St. Paul, Minnesato 55101 Phone: 612.835.7008 Phone: 612-224.0711 33 1 time? 2 A I think as a member, one member of the City Council,`; 3 dealing with all types of problems and concerns that 4 come up through the City, the Council tries to apply 5 wherever possible a rule of reason. We don't try -to 6 make it extremely difficult for people. We agonize with 7 this type of thing. I feel that we definitely had.the g legal basis to make them take the silo down. At that 9 time .we were :still in negotiation. We felt that while 10 we. had a non-conforriiing use that if we worked with the 11 applicant, we might be able to at: least reach an area of 12 compromise in terms of some of the landscaping, the things 13 that we talked about that we.would go along with the 14 rebuilding and at that time I didn't feel that forcing 15 teem'to take do•,m the silo was the proper course of 16 action. 17 4 Woulu I be -correct then, if I can summarize it and I 18 don't want to misstate it so correct me if I am, that you 19 as a member of the City Council felt that you were pur- 20 suing a course in good faith,..n a good faith effort; to 21 live with the Apple Valley Fled-E-Mix to the extent. that; 'r 4 22 the City could? 23 A I think that that's a fair statement. However I would 24 like the record to state that at the time that I voted 25 for the building permit or let's say at no time did I ever KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Financial Center Minneapolis, Minnesota 55431 12 t. Paul. Mines Bonk Bldg. Sr. Paul, Minnesota 55101 Phone: 02•B35.7008 Phone: 612.224.8711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 r 17 t. 18 F 19 20 21 22 23 24 i 25 �! 3e A Q A. feel that they were in legal compliance in building the silo. In other words, that's not -- that was not the basis for my affirmative vote to allow the building per- mit. ,. Your ,affirmative Tote was simply in an, effort to -deal ins` good faith with the residents of the City? That's correct. And would I also be correct in assuming that' either contemporaneous7with that point in time or from that -point in time to the present, you have concluded that Apple Valley. Red-E-Mix is not interested in dealing in good faith with.the City of Chanhassen? No. i like to have enough faith in the people that I m dealing with to try to give them every benefit of the doubt„ As long as anyone comes before the Council and states reasons why something is not.going along or not going along as well or as fast as it should, I think my leaning is to work with them until such time that 1 am completely convinced that they really are not dealing in good faith with us. At this point in time, l have not seen an ram•.} l y physicalT.. ' . signs that they are dealing in good faith,. I don 't"know4= for the last three years whether the reluctance tojcornply­ wi,t?i the application in 1975 has to do with the muter that's coming forward or not. T would assume that maybe KIRBY A. KENNEDY & ASSOCIATES I I 1910 Nonhwestern Financial Center Minneapolis, Minnesoto 55431 Phone: 612-835-7008 1255 Nonhwesterr% Bank Bldg. St. POO, Minnesota 55101 Phone: 612.224-8711 35 i I i 1 it does. 2 Q The matter being the most recent application for a build- 3 ing permit that was turned down by the City? r 4 A That's correct. 5 Q The next indication in the record ' Exhi:bit. I that _Apple 6 Valley ?fed-E-Mix was coming to the City of Chanhassen 7 would be in duly of ' 77 ,. actually in August of 177, the r 8 City Council Meeting. Were you present at the August 15, 9 1977, City Council Meeting? 10 A Yes. 11 Now would I also be correct in assuming that prior to 12 that August 15, .177, meeting, a packet was given to you 13 as a member of the City Council relativeto this meeting? 14 A That's correct. ° 15 _end'relative to the application of Apple Valley Red-R-Mix? 16 A That's correct, 17 Q Had you attended or do you recall. attending.in 1177 prior 18 to August 15, any Planning Commission meetings or any 19 other meetings of any kind regarding this speci.fi.c- 20 appli.cati.on for a building permit? 21 A No. 22 Was this the first time you can recall hearing ab6ut°7the,:- 23 application for a building permit that is presently bei.xg.. H: h 24 i +X contested., that is Aug•,2st 15, 1977?y 25 r A I couldn't state that. . KIRBY A. KENNEDY & ASSOCIATES 1910 Norhwestern Financial Center 1255 Nonhwestern Bank Bldg. Minneapolis, Minnesota 55431 _ St. Paul, Minnesota 55101 Phone: 612-835-7008 Phone: 612.224.8711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 h A Q A WA A Q A 36 It may have been a couple of days earlier or what? I could have know abou4 it. I really don't remember. It's very possible that the City Managers wi1i, tell=us''`<:' an item is cowing up --you know --just in conversation. ` .Ti could have known about it before I received the .packetv:. ' just don't remember, = Do you know or is it yout understanding that the silo for which the present permit application was made is the same as or similar to the silo for which the permit was issued. in November of ' 75? It's my understanding that they are basically the same, yes. And do you know or are there any records that might show whether or not there is.some difference between the legal status of the ground on which. -Apple Valley Red-n-Mix sat in 1975 that. is with regard to the City ordinances, and it's status in.1977? To the best of my knowledge, it's the same. it has been a central business district . It 'ryas in .115, and it is:'777 ZA That's correct. R Is there something in the record;, or do you have._any recollection -of why in 1977, according to the inforraatiow- before the City Council then, it was necessary tt�`have -- strike that, At the August 15, 1977, meeting, there wa 1910 Northwestern Financial Center Minneapolis, Minnesota 55431 Phone 612-835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Nonhwestem Bank Bldg, S, Paul, Minnesbto 55101 Phone, 612.224.8711 M 1 2 3 4 5 6 7 .A 8 9 10 11 Q 12 13 14 15 16 A 17 18 19 20 21 22 A 23 24 25 37 an indication that a conditional use permit would be necessary to build the silo being proposed in 1977: DO,`' you recall why in 1977, the City Council was of the.opinio r, that --let's just change that --you were of the opinion that a conditional use permit would be necessary for that silo': when one wasn't necessary for the silo in 1975? You maybe misinterpreted one a while back. The one in 1975 should have had a building permit, should have been in- cluded. at that time with the re -building. I think that that's important. It's your understanding that the reconstruction permit and the plans for the reconstruction permit that was pre- sented to the City Council.in May, 1375, included the fly --ash silo for. which the permit was granted in November •r. of 1975? Did not include. Okay. Did not. All right. So my question then is, what was the difference between the permit.-- strike that,. Why was a conditional use permit required in 1977 to build a silo when one wasn't required in November. of 1975 •w build the same or similar silo? In 1977, it's my feeling that the applicant applied- :'for_.'._ a building permit" for:.the silo within the wounds. --of 'the I' law. The one that he built in 1975 were outside the bounds of the law. I think that.'s the difference. He KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Financial Center 1255 Nonhwesrem Bank Bldg. Minneapolis, Minnesota 55431 St. Paul, Minnesota 53101 Phone: 612.833.7008 Phone: 612.224.8711 ;r - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 followed the proper -procedure in 177. He did not- in 175. Q And for following the proper -- if I understand you, for following the proper procedure in,1977, the law would forbid him from building the silo; but following improper. -- procedures in 1975, the law at least as applied by'the Chanhassen City Council would allow him to build the ail MR. LARSON: That's objected to as argumentative Counsel. I'm going to instruct the witness not to answer. That's a question for decision by the Court. 3Y MR. DU Y Q were you aware of the existence of the conditional use permit in 1975? A I was. 0 And you knew generally what was required in a central business district, what was a conforming use and what was a non -conforming use? A That's correct. Q And you had available to you as a member of the Chanhassen City Council either the ordinances or legal counselw3h„ regard to what the ordinances said? A That's correct. Q And am I right in summarizing your position that, a only._ difference in your mind between the application for the. 175 -- excuse me, with regard to the issuance of the 175 1910 Nonhwesrem Financial Center Minneapolis, Minnesota 55431 Phone: 612-835.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bank Bldg. St. Poul, Minnesota 55101 Phone.. 612-224.8711 - sr�• 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 i7 K 39 permit and the denial of the 177 permit was that in 175 they built it first and then applied, while in 177, they.. applied to build it? - 't - What other conditions existed that made these two,'' 'f different? Maybe you missed this when we were going back to 1975. But after Apple Valley Red-E-Mix was partially destroyed by fire, my recollection is if we have a non -conforming use that has been damaged by fire less than 50 percent, the Council at that time can allow the property in.ques- tion to be rebuilt to the same condition that it was be- fore the fire. In other words, the fact that new building is going on is only because of a fire or a disaster, not c because of any intent to increase, expand, or change the purpose of the business. It's to put it back the way it was before the disaster happened. I think that's'impor- tant. That the City Council allowed the silo that went in.that was not a part of the"original building permit, we did not allow at the time we were made:aware It was a Council decision to leave it. The 1977,',-=I'*{,f r „ is very directly an increase in the business that'•o:-;going�,. to be or an application to increase the size and 4scope.0f. the business on the property. Why? What facts -did you have at your disposal on August KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern financial Center 1255 Northwestern Bonk Bldg. Minneapolis, Minnesota 55431 SC Paul, Minnesota 55101 Phone: 612:815.700E Phone: 612.22d.8711 �tw� Yti'w+e_uaP=w+wcw•a�-_ra•;y..••n."aK.,,. raw,-.a.,.•w�.«..w.....,•..-.a.,.e..+•..,...c,««�--..�,....om...--_— 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 �s 0 A 40 15, 1977, that would lead you to :cake that conclusion? I think very simply any type of expansion on a piece of property that's operating under a non -conforming use in: my mind would say that your increasing the non -conforming use on that property. What facts, did you have at your disposal to indicate' that there was an expansion, that this was an expansive or something that would allow for expansion as opposed to simply storage of the same or similar material? Tile I l -- MR. LARSON: I refer you to the building permit, Walt. That speaks for itself. A Maybe you misunderstood me before, the fact, the primary fact at my disposal was the request to construct a silo 10 b in d y 10 length g and width th and 40 feet in hezghth, that would have a Volume of 4,000 cubic feet. BY MR, DUFFY : Q What in your mind leads from that to a conclusion that it expands the lousiness, or are we talking simply of physical expansion? A I'm talking about physical expansion first. Q So when you talk in terms of expansion, you're talking : really in terms of geographically or physically? A' A Yes, Q As opposed to functionally? 1910 Northwestern Financial Center Minneapolis, Minnesota 55431 Phone: 612-835.7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Nonhwesrern Bonk Bldg. St. Paul, Minnesota 55101 Phone: 612-224-8711 I A 2 3 4 5 6 7 Q 8 9 10 11 A 12 13 14 15 A 16 17 18 19 20 21 22 23 24 25 ;9 Well, I think they both come into play. The application for the building permit was looked at on a geographic - or physical expansion. It would be conjecture on:my part; but I think it's safe to assume, that a physical or geographic expansion on any non-cdnforming use can lead -, subsequently to a business -related expansion. y Did the City do or are you aware of any studies made to ascertain what impact, if any, the silo would have on Apple Valley Red--E-Mix's capacity to do business from the. plant in Chanhassen? It was discussed. I don't remember any formal report. Do you recall or did you consider any compromised proposal with the applicant in keeping with what you've stated earlier, your, efforts to attempt to do business with a resident of the City? I think that there was general discussion. 1-don't be- lieve I could state it, yin terms. of a compromised proposal.. I.think that in looking at the.motion that was before us on August 15, there was debate bads and forth as there should be on any motion coming before a City Counil.. L think that Apple valley Red-E-Mix was allowed to state. =„ their case, The Council was . allowed to ask quesi ons both the Red--E-Mix people, anyone else that they .fait Li. could provide answers in order to feel that they had a complete idea of what was being proposed before the motion KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Financial Center 1255 Northwestern Bank Bldg. Minneapolis, M.icnesota 55431 St. Paul, Minnesota 55101 Phone: 612-835.7008 Phone: 612-221.8771 r M 1 2 3 4 5 6 7 8 9 . ...10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A R I 42 was made. Now I couldn't tall you how long that dis- cussion took; but it took some time. In your mina, is there any proposal which the Apple Valley Red-E-Mix people could make to you which would allow them to construct the silo on that property short'' T_. of obtaining a non -conforming conditional use permit?,. No. Are there any facts, as you sit here today, that you can visualize which would allow you to grant a building per- mit for the construction of a silo to Apple Valley Red-E-_ Mix? That would again be conjecture on gray part. I don't know. Well I'm asking you. Can you.tbink of anything? MR. LA.RSON: I think it's incumbent on Apple Valley Red-E-:fix to offer an alternative suggestion. It's not incumbent on the City, and I'm going to instruct the witness not to answer the question. It*f obviously a trap, MR. DUFF Y a we'll certify that question so hold it. Just so 2 can understand, you're not going to1° let him answer any question, about whether or.- not 'the e G i } •S� ilj: r is any facts -- .s MR. LARSON : That is correct • HY MR. DUFF i' : 1910 Northwestern Finontiol Center Minneapolis, Mianesoto 55431 Phone: 612.835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bank Bidg, St. Paul, Minnesoto 55101 Phone:612-224-8711 43 1 Q Mr. Hobbs, were you aware of a proposal to in effect move 2 the Apple Valley Red-E-Mix Plant frora its present. <loca- 3 tion to another location within the City of Chanhassen? 4 A A specific proposal? 5 Q Any proposal, specific, general -- 6 A it had been discussed in general. 7 Q Had it been discussed among the members of the City 8 Council? 9 A Yes. 10 Q Has it been discussed at any meetings for which there 11 would be records? 12 A I think that it's been discussed in light of what you + 13 see in the minutes here. Moving. the Red-E-Mix in and. of 14 itself was not a primary topic of any discussion, 15 Q what was the topic of the discussion? 16 A Building permits, I'm sure it was discussed at that time. 17 Q Do you have any familiarity with the consideration of 18 moving it to an industrial park assuming that the City 19 could get funds to purchase the property on which it 20 presently sits? 21 A _a .That's been discussed. 22 Q By whom?, Yr; 23 A in general discussion at Council Meetings.`{'` 24 Q Would there be any records of that discussion? 25 A Again, I don't think so because it was not discussed as KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Financial Center Minneapolis, Minnesota 55431 Phone: 612-835-7000 1255 Nonhwestern Bono Bldg. St. P0.1, Minnesota 55101 Phone: 612.224.8711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 a primary item. I think -it's come up several times in looking at the Red--E-Mix. I think that in discussion ,all . along. from 3975 to 1979, the Council has indicated that`.. they are not against cement plants. We have to have them. This one is a none -conforming use. It's quite possible L that there might be somewhere else in the City where we `* could locate it. I don't think at any time the City Council has made Apple Valley Red-E-Mix feel that they were not welcome at some place in our City. It's never come out that the City of Chanhassen does not want a cement plant. shy don't-ycu take it back to Apple Valley. If we could find a place, they've indicated an interest in.moving again in general discussion. Up until this point iLn tire, we as a City have not had the resources to effecuate that type of move but it has been discussed. MR.. LARSON: I might enlarge on that if I may, Mr. Duffy, by asking the witness several questions that may shed some light on it.. DIRECT EXAMIVATION BY MR. LARSON: Q It ' s true, is it not, Mayor, that the y Proposal just.. re counted came up in a most general way as part Of':a,,<._�: -.- housing and redevelopment consideration here in the.C�.ty� A That's correct. h Q And that's the only area in which it arose" KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Finantiol Center Minneapolis, Minr_soto 55431 12 t. Paul.NorMinns Sank 01 - St. Poul, Minnesota 55101 Phone: 612-835-7008 Phones 612.224.8711 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A 0 A S? W That's correct. And the City has under -: study right now a housing and redevelopment district encompassing a large part of th$'',:; central business district, is'that correct? That's correct. But of course no funds are available to make any acquisi- tions, is that correct? we have all kinds of plans and no money. RiR„ DUF'FY: Off the record. (At this time a discussion was held off the record . ) RECROSS-EXAMIVATTON BY MR. DUFFY: �i Since the original denial of this present permit in August of 1977, the City Council has reconsidered the matter, isn't that true? A I think that we were asked to reconsider, We did not. 4 That was in April of 1978? A That's correct. 0 Do you recall how you voted with regards to the re.gcxtet;'::: for reconsideration? m � 1 •� f+ A There was no vote. Q How about in July of ' 78? Do you recall it coming ,up again in July? A No. I don't have that here. It might have. 1940 Northwestern Financial Center Minneapolis, Minnesota 55431 Phone: 612-835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwestern Bonk Bldg. St. POO, Minnesota 55101 Phone: 612.224-SPI1 46 1 ILR. LARSON : Do you mean July, ' 77? 2 MR. DUFFY: 178, excuse ma. 3 MR. LARSON: Z don't recall that. 4 A As you know, and 1 don't know if it's important procedural. 5 but at the April, 173, at any time a motion has been de-- "' . 6 nied, the only way that a motion to reconsider can; be 7 taken up again by the governing body is for one of those 8 who voted to deny .it, to make the motion to reconsider it. 9 So when S said'no action was taken, nobody came forth 10 at that meeting to make the motion to reconsider.. The 11 motion *eras asked for. 12 BY MR. DUFFY 13 ' may have asked this before, and bear with me. But could 14 you summarize for .zee the basis upon which you voted to 15 deny the permit to Apple Valley Red-E-_elix in 19777, 16 A Very simply, ? felt it, -was an expansion of an non --conform. 17 -ing use. 18 Q mayor, in you4-1 ordinance there is'a provision for normal 19 maintenance. Was any consideration given by you to 20 allowing the addition of --- strike that -- to allowingth 21 silo 3s an alteratio�z, incidental alteration, hAd you'=J 22 considered that? •, r g 23 .A Could you tell me what section of the zoning ordinance• 24 you're looking at? 25 Section 20.06, page 1.9. I don't Want you to interpret KIRBY A. KENNEDY & ASSOCIATES 1910 Nonhwesrern Finonciol Center 1255 Nor!hwesrern Bonk Bldg. Minneapolis, Minnesota 55431 _ St. Paul, Minnesota 55101 Phone: 612-835.7008 Phone: 612-22e•8711 1 2 3 4 5 6 A 7 8 9 Q 10 A 11 Q 12 13 14 15 16 17 18 19 20 A 21 22 23 Q 24 25 A _ 47 that provision for me. I just want to know in your mind if you'd ever given any consideration to whether or not that could be allowed under that provision or if. there .was any provision within the ordinance which might be allowable in your mind. b. I won't interpret it; but if you're using that particular provision, I'd like to refresh mY memory before I answer the question. Sure. Ilhat was your question? I was just wondering whether or not you may have considere- the utilizing of that provision or any of a couple of other provisions in the ordinance to allow the constructio of the silo at Apple Valley Red-L--Mix's facility. per- haps I can rephrase it by asking if any consideration was given to anyway under which Apple Valley Red-E-Mix could put up that silo'on that site consistent with the tCity's ordinance or whether no effort was extended to see if something could be done that would comply'...._ To the best of my knowledge, the Council looked request for the silo as an enlargement of a non conforming; use ♦ , ,..,,: And in our case , `- y you felt there was nothing they.;couZd do which would comply? Again I thine that that's conjecture. I don't believe 1910 Northwestern Firwncial Center Minneapolis, Minnesota 55431 Phone: 612-835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwester -Bank Bldg. St. Paul, Minnesota 55101 Phone.. 612.224-8711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that I considered the matter --you know ---in terms of re- viewing the ordinance to see if there was another, area. I don't think it would come under 20.06. Did you personally give any consideration at all :to dis- cussing the natter in greater detail with Apple Valleyy Red-R- Mix in an effort to see if something could be - done -;' to accomodate their needs with the requirements of the City of Chanhassen? A I think discussion was held at the time the original motion was denied. Again in a general sense before the motion was made, I could not ;state today :for the record exactly what that discussion consisted of. Was there something in the relationship between the City of Chanhassen and Apple Valley that.changed from 1975 to the present which in effect precluded an attempt. by one or both of the parties to attempt to make some accommoda- tion with regard to this permit? MR. UNIRS N : That' s objected to as far too speculative and argumentative. I'm going to instruct the witness.riot to answer the question. BY MR. DUFFY: From your standpoint, was there something that a angod� in your mind with regard to the relationship as you `vie it between the City and Apple Va"Lley Red-D-?fix which was'. an'impediment to some efforts of accormodation between 1910 Nonhwestem Financial Center Minneapolis, Minnesota 55431 Phone: 612.835-7008 KIRBY A. KENNEDY & ASSOCIATES 1255 Northwesrern Bank, Bldg. St. Paul, Minnesota 55101 Phone: 612.224-8711 e wl 49 1 the two parties? 2 MIR. LARSON: Sarre objection and same direction. 3 BY MR. DUFFY: 4 Do you personally see a different relationship now in your 5 mind between the Ci`y and Apple Valley Red-E-Mix than g existed in 19753 7 MR. LARSON: Same objection and same direction. g MR. DUFFY: is there some particular reason why 9 you won't le t him answer that? 10 MR. LARSON: Because I don't think it 0 s a proper 11 question to ask at this proceeding. It's at matter 12 that has to be made in determination by the Court 13 based on the record. 14 MR. DUFFY: We'll certify all of those ques- 15 tions. 3 have no further questions at this time. 16 MR LARSON: I have none. S,galt, you have the 17 right to have the Deposition transcribed and then 18 reviewed by you to insure that the .reporter has 19 accurately set do%n the questions and the answers, 20 or you have the privilege of waiving that. V 21 recommend to you that you naive the reading.. 22 S:�gning and filing. K:. 23 THE WITNESS: Fine. 4 24 qt dt it ; 25 1910 Northwestern Finendol Center Minneapolis, Minnesota.55431 Phone: 612-835.7008 KIRBY A. KENNEDY R ASSOCIATES 1255 Northwestern Bonk Bldg. St. Paul, Minnesoro 55101 Phone: 512-224.8711 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF MINNE"SOTA COUNT;' OF i,ENNEPIN ) Be it known that I took the Deposition of WALTER. HOBBS, on the 13th day of February, 1979, at Chanhassen, Minnesota; That I was then and there a rTotary Public in and for the County of Hennepin? State of Minnesota, and that by virtue thereof I was duly authorized to administer an oath; That the witness before testifying uas by gee first duly sworn to testify the whole truth, and nothing but the truth relative to said cause; That the testimony of said witness was recorded in stenotypy by myself, and transcribed into type%,xitincT under my.direction, and that the Deposition is a true record of the testimony given by the witness to the best of ny ability; That I am not related to any of the parties hereto, nor interested ,in the outcome of the action; That the reading and signing of the Deposition an6 Notice of Filing were waived. WITNESS PAY IiWID AND SEAL this 15th day of Februa.ry,.•'-1979; Deanne -X. Par.�in Court Reporter KIRBY A. KENNEDY & ASSOCIATES 1910 Northwestern Financial Center 1255 Northwestern Bank Bldg. Minneopolis, Minnesota 55431 St. Paul, Minnesota 55101 Phone: 612-835.7008 Phone: 612-224.871 1 / \ LARSON & MERTZ ll ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILDING RUSSELL H. LARSON MINNEAPOLIS, MINNESOTA 55402 CRAIG M. MERTZ TELEPHONE (612) 335-9565 Or COUNSEL February 5, 1979 HARVEY E. SKAAR MARK C.MCCULLOUGH �23`5618 Walter Hobbs * John Neveaux FEB1979 Nick Waritz C"i �ECENE 0o r ;UNHAOF Re: Apple Valley Red-E-Mix vs. � ASagT City of Chanhassen rS M�nt� c'� C Gentlemen: As I advised by telephone last week, Gerald Duffy, attorney for Apple Valley, has noticed the taking of your depositions in the zoning case as follows: Walt Hobbs: 9:00 A.M. at City Hall on Tuesday, February 13th. John Neveaux: 9:00 A.M. at City Hall on Wednesday, February 14th. Nick Waritz: 10:30 A.M. at my office, 1900 First. National Bank Building, on Tuesday, February 20th. I do not anticipate that the depositions will take longer than 45 minutes each. The questions asked each of you will deal with Council deliberations on the question of the issuance of a building permit for a second fly ash silo, whether it constitutes an enlarge- ment of a non -conforming use, and justification for denial of the recent application when an earlier permit had been issued for the initial silo. I have arranged with Walt and John to meet them for a breakfast con- ference at the Legion in Chanhassen at 8:15 A.M. on February 13th, at which time we will review the issues presented by the lawsuit and your anticipated testimony. Enclosed are copies of all Council and Planning Commission minutes dealing with the Apple Valley presence in the City, including matters relating to the last application for the fly ash permit. Also enclosed is a copy of Minnesota Supreme Court decision in County of Freeborn vs. Claussen, which is the Court's latest decision on non- conforming uses. We intend to rely heavily on this case in our defense. Vq r-- ruly yours, �-"RUSSELL H. LARSON Chanhassen City Attorney RHL:mep Encl. cc: Donald W. Ashworth , COUNTY Oi _ REEBORN v. CL.AUSSEN Minn. 23 Cit.- 11, LV,a N.W,2d 323 fill milli" utic, con"lilrltcd c,p.tntinul of non COUNTY OF FREEBORN, Appellant, confirming usc. V. Delmon CLAUSSEN, Respondent. No. 43326, tiuprelnc l'onrt of \1i,rnr•.utl,. Action to restrain defendant from con- structirtg building on bis bind. Tllc I)is trict Court, Frccborn County, 1):11110 F. Foley, J., denied rrGcf and coulrty ;tppc:d- cd. I'llc tirlprcnrc• (Ourt, 11ac ktI thin, held that construction of Inlilding to honsc earth -moving ceguipnlent, which tc;is stored, repaired and maintained in open at, ilorl- confornling use•, Constituted cxp;tnsion of nonconforming use. Rcversed. I. Zoning C-779 Owner's f;tilurc to take a direCI :tppc:ll to district court from denial Of petition to rczonc did not preclude him from raising; drfcnse that zoning Ordin,rllcc Nc:ts uncon- stitutional in proceeding to restrain hint from constructing; building. 2. Eminent Domain C-85 Zoning Ca321, 329 krsidcntial roningr onlut:liter ma. stiultiun;dly prohibit Creation of nun Cull forming uses but existing nonconforming; uses tmtst either It(- lit rntittcd to remain or he rli111111t cd by nsc of eminent domain; preexisting; nonconforming; uscS need not br :111OWC(I to cxp:old Or rill:ugc. 3. Zoning C-329 Addition to misting building is exten- Ston Or cxp;ulSion of prior nonConformirtg Ilse. 4. Zoning C-329 Construction of building to house carth- nlorirlg c(guipnLcrll, which was storctl, rc- paircd, and nt;tintaincd in open as n0IICOlt- 5. Constitutional Law C-81 liefnrc c\crcise of police poker call he held nnionsillulional, It nnl't be found that it has nr, sn1t,�L•nitial rcLttiorl to public hc;tlth, s;lfety, morak, ur l;cncr;tl wclf;lTV. 6. Constitutional Law 48(5) ltcferlcl:Ott clainlirlg unconstitutionality hay lnlrdell to c•slahlish illat legislatiVe body aitc•cl alllitlaril or nnrcasonably and that thcrc teas no snbstanli;d relation to pul,lir health, safrty, innitak, or wdfarc•. 7. Constitutional Law C:-70.1(6) \\ IMt best fnrihcrs plti-lic welfare is nl;tticr primal-lly for dcicrntivatiorl by leg- islatic•c body concerned. 8. Zoning C�-609, 615 \\•here rc•auulablcncss of zoning ordi- n;lace is dellataldc or tdht rc Opinions differ as to desirability of restriction it imposes, courts are not to interfc: c With 4-giSlative discretion. 9. Zoning C-675 That do. fcncl:uit's brother conducted simik-Ir nonconformint; bu�inc•ss on adja- cent I;uld and that cnclo"irll; within build- ing; that lchich \va,; fornlcll.• preformed in open NvOlild be at-Sthcticallc bcrlefiiial did Ilot Ovi-1 Comic pi cstlnlptn,lt tl!al Ieg islative boric acted reasonably anti in manner con- sistent kith general \cclfare in refusing; to rrzonr to permit colltitlllclion of building to honsc c;O'th-nlO ing ctluipnrc•nt N+hiclt had bccn kept in open :is nonconforming use. 10. Constitutional Law G-278(1) If );Intl cannot be nscd for residential purposes as zoned, it lllay be unatrlstitil- 1ion;ll taking without due plm-ess to deny re7olllllg. I I. Zoning C=-771 Cmlllty's action to rt sll ain defendant from constructing huildiug; in violation of t ! 1:1'f =.; f. 1' . !K'i ryFa •t� y • � t �: 1- ia. � " �^.rc•s�Pf�. I 4 - t ,t t 324 Minis. 203 NORTH WESTERN REPORTER, 2d SERIES zoning ordinance would be relli ntded, un reversal of cicnial of injunctive relief, where dt•fcndanl's offer of proof that land could not be wed fur resi(lciinal purposes as zoned had been rcfuscd, to permit do fcIldant to pctilinn again for t'czorting on ground that land IS nut suit,•thlt: for resi- dential purposes. 1. 1:yrn though defendant failed to appeal to the (district : ourt from a denial of his petition to rcznnc, be should not be deprival of the tight to raise cortstitutinn:tl (Icfcnscs in a grit 11V the cotutty to rc,irain hint from construetirtg:1 brtilding. ('owAruclloin of this bill lit; ht house all nut(Inur noncottfornting u.c run stitntes it prohibited cep:tnsion and r�trn- sion of that n,c ccilhin the Icim,, of I rc(- horn ('omit), %oning ( )r(lin:urc•c, § 3. ('MILT the c yidcnet, cnfurccnu nt of the ordinance to prohibit defendant's construction of the building is not Ilncon- stitnt,onal. Robert C. "I'ttveson, ('ounty :%tty., Iie,b A. Goldman, Asst. County Atty., Albert I-ca, for appelLutt. C:hristi:ut, tiler, Savcll.oul, johwt mi c`C Broberg and holf l). �Ien, :\lbert I.ca, for respondent. Louis W. Claeson, Jr., \luutcapolis, :uni cus curiae. I[car(l and t•on�idcrcd en 1L:tnc• AELCl_:\t'GHLIN, Justice. 'I'his is all appeal b)• Freeborn C mIlity from a denial of a motion fora new• trial. The county conuncnecd an action to re- strain (Icfcnd:utt, Dclnton C"I:utssen, from constructing a building on his land. A preliminary rc,tr:titring ordrr was issne(l turd the Ca,c was he:ud on the merits. The trial court ruled against the county anti disnti,scd the complaint with prejudice. We rcvcrse. In 1't6r4, defendant Imrc•hascd from his parcnt< rut 8.78-acre tract of property in B;HICroft Township, Precborn County. tiince about 19:13, both defendant and his father before hint have continuously used the I:tn(I for Iht• onidoor storage and repair of earth -moving c(lidimi •rtt. In 1961, the township enacted it zoning ordinance which zoned defendant's land residential. fit 1'>w, the town,hip ordinance was supersed- ed by the znnittg ordirtattce of Precimm l otnity, but defendant's LIT]([ colitirtued to be zoned I-csidcntial. Under both ordinances the use of the open land to store, repair, anti maintain earth -moving e•yuipm(•nt was a valid nonconforming Ilse. Thc general arc; ,nrruunding dcfcnd- :utt's property is zoned residential with two Small Commercially zoned areas containing a motel and it nursery. Southeast of the land IS public lakeshore property usable for parks and schools. llcfcnd:utt's brother cortdncls it Similar business, which is also a nonconforming Ilse, on adjacent property. In about Jul)' 1009, defendant began work on it building to enclose the storage and repair of carth-movilIK cyuipnlent, which he w•as then conducting in the open. In October it routtt) offiCial in- formed (lcfendant that his construction was in violation of the Comity zoning ordi- nance. In November 1961), defendant peti- tioned the Freeborn Count), Board of C:om- missioncrs and the County Planning Advi- sory Commission for it rezoning of his property from residential to 1%1-1, light manufacturing. The I'Ltnning j\(1visory Commission recommended (cicnial of rezon- ing in January 1970; an(1 the county board, through its inaction, adopted the rccommendation a11(1 (icnie(l the petition. I )cSpit(• the denial, and with full knowledge Of it, defendant reconimence(1 construction Mid Spent in excess of ;2,0(N) oil materials in addition to his own Iahor. "1 he bnil(ling has not yet been completed. COUNTY OY t REEBORN v. CLAUSSEN \l inn. � ) I 1. Tile county M-glIes that dciend ant should have taken a dircct appc;d to Ihr district court front the action of the county hoard dctlyin}; his petition to rcronc and that, lit the ;tLsetn•c of Such appe;tl, he is 1u'ccludcd from raising the defcnsc that the county umillg ordinanec, as applicd to It,)nc)It ft,rIII IIIg Ilse of l:Irtd, eNisting; at the titnc this (h'dinanct: I„•carllc• effec- iiyc, is tItcrcaftc•r (IIm-mItiImcd or ch;ul);Cd, thcn ihC future n,c of such land shall Lc in cooforntii) ttith the pro- visions of tlus OIdwall'c." ( Italics Still - III icd. ) hint, is nncunstitntion:d. \VC disag;rce "yith This contention :rinl adopt the rcasoning; of bounty of Lake v. .lac Ncal, 4 Ill.'d 253, 181 N.I•..'d tic ( 11)621" That cast. involved sonnwhat sitnil;u- farts, an(1 the same con- tenlion was nladc that tilt-, defendant should hayc pursued his Claim of Ilnconsti- tutionality through all appeal from the It'g- isla.tive dctermination rather than as ;I de- fcnsc in a Scpar;Itc anion conrtuenccd by Ibe iuunly. The Illinois court slated 12-1 111?d ?l,tl, 181 N.I•:.?d 'h)) " * * " do lollg as local authorities institute :t]1 action, a defendant should Lc entitled to defC7Id on the );round of the iIIvaIiditt of the mdin;utc•e and to havc the issnc dcterimm-d. If it %ccrt• to Le olhrrtcisr, tilt' rcSult could he that judi- CIA ntachincry would he used to cnfurec :In ordin;olcc that is uncon"111Inional." WC do not Condone IlW aclu,:i of defendant ill conlinning; the consu-uctlon of the Irnild- ng{ after the• (Icnial of his rezoning peti- tion, but we con.•ludc that he should not he dcpriycd of lilt- right to raise constitutional issues in defending this action. ?, AH important (Iucslion, ;Mot oat, of first intpressiort in alillrtcsota, is cyhctltcr tilt- construction of the hudding w:t" ;In cN- p;ulsiort or eNterlsiun of tilt' nuncnnforuting nsr. 'tilt, Frc•cborn County zoning llydtnancc, § 4. 2.3, prof ides : "The nonconfornlini; use of land whcrc a structure thcrcon is not so cnt- ployed, eNislirtt; at tilt, lime that this Or- din:urc•C becomes effectivc, play he Colt- tinued provided: 1. The noncoufornlini; use of killd Shall not ill (r)l%' Ctll' he ia"- /,urrdt'd w- c.riend"d either on tilt' sank• or adjoinim property. _'. "that if the 121 A it-sidcrttlal nntint nidinanc'c• may corntitrttiortally prohillit the creation of list's which are nouconformili .11 but exist- ing nrntt'onfotnlim; u�c•s mnIl t either he permitted to rclimII1 or I uhillinatcd by Its(. of cntincnt domain. Ilawkirts v. Tal- Lot, '1� \lilln. 54O ,Ztt \.11'?tl 863 (19.57). It is not rc(lnired, however, that preexist- ini; nnrtconfollillo; n c; he allowcd to vx- 1)and or cnl;o'g ". The girl hr 1)nlicy behitld ! Ilim docttinc i; to nuic;c,e tilt- likelihood that such n;cs will ill lion Lc eliminated due to ol'solcscetice, t,NhaIlstloll, or destruc-( lion. This in tm n ty111 Icad to a uniform rise of tilt- I;md consistent x6llt the overall I contprchenslvc lolling pl;nl. WC have found no Minrn•sot:I CaSCS di- rectly in point, but there ;ot- cases front other juti;clicliort�, that arc hclpfnl. In �h;inn,Ih;oi v. Ring; -.old, .'1.-' Md. 481, 1 2') \.-'d (Io.37 ), the kotdoct errs had crect- ed a I;Iri;e \carcholtse, propwinl; to use the gromi(I floor for storagc of e(1Ilipntent, ve- hicles, ;chid nlachincry' - the Sanr(• tISCS to cchich the open land had hccii put prior to the eleelion of the building. I'llc busitless \tas in a residentially •roved ;uea but was a valid uonconfornling ttsc. 'I'll(- zoning; or- dinance was rto wore restrictivc than the one nlvolyc•d hcrc. Tllc Maryland Court Of Aillw 11S Stated that they could find rtothing.r in the ordinance that %would permit tilt' use of the nets buildiug merely because a sintila use had Lech cslaLliShed on open land and held that tile, cmistruction of a new hnil(1in;, was :lit nnl;m-ful c tctlsion of a nonconforming Ilse. Wel,er v. Plert,tti, 72 N.J.Super. IM, 178 :A._'d 02 (11)02), involved an addition to an eNISIint; hnildilIg. TIIC contention ryas that Ili(- addition \vas dcsiglicd to park tracks and to c:u-ry on the s;urtc activities which Qom! ti .a,l _ice t iW ;-�t.p i',• Tt, , C( !t y, i 326 Minn. 203 NORTH WESTERN REPORTER, 2d SERIES were formcrl}• C01)d1Icted in the preCisc defendant's constitutional rights to full ell - open area in which the addition tyas to be jo}nunt of his property. built and that, thcrCforc, it teas nut an ex- tension of the nonconforming use. The [5-81 `several well -established princi- New Jcrsey court hcl(I that the construe- Ales control the determination of this tion of a building to house :tn outdoor non- question. "[']'is court has established that conforming utic Constitntcd :rut c,tlargentcnt hcfore the exercise of the police power can of such use, he held unconstitutional, it must be found Ithat it has no substantial relationship to n addition to the sturtge of earth -mot•- public health, safety, morals, or generaling cquipntcnt, dcfcn:tt's vali I none("' tvclfarc. Nacgcic Outdoor Advertising Co.-, forming use includes repair and nutintr- t.. na\•illagr of 1linnctonka, 2`{1 Minn. 49"?, nce of the equipment. The harshness of 1o2 N.\V.2d 206 (1968). 7'he burden of Minnesota winters implies that much repair \ proof is upon defendant to establish that and maintenance work can be done in a the legislative body has acted arbitrarily or building when similar work Cannot he dortt• unreasonably and that there is no substan- outside. The building would no doubt fa- cilitate defendant's operations in other tial relationship to the public health, Safety, wags. morals, or welfare. What best furthers [3,4] :\it addition to all existing build- ing is clearly, :lit cxtcnsion or expansion of :t prior nonconforming use. In our judg- ment, construction of a hnil(ling where none existed hcfore Constitutes an expan- sion of a nonconforming use in tilt. sanx• manner as an addition to an existing build- ing. Furthermore, the building will pro- long the Contintt:ttion of the nonconform- ing use and Considerably lessen the likeli- hood that it will Ire eliminated in the fore- sceahle future. Defendant cites Pennsylvania cases to support his contention that the erection of the buil(ing is not :tn cxpaosion or Cxten- sion of his nonconforntiuig use., We have considcr•d those Cases :tnd decline to fol- Imv them, We hold that the Construction of this building to holtsc tltc outdoor nonconform- ing list, constitutes all c,\pansion :utd exten- sion of that use an(I is in violation of the ordinance. 3. The trial court found that the denial of defCII(lant's petition to rezone here no reasonable rclatiowhiP to public health, safety, or public welfare, and Constituted a deprivation without (Inc process of law of I. I'L g., Eitui.•r v. Kreit•z. ('"rlt., •I(N 11,1. 406, 172 A._,I .._o t I!II;I I : In ru Pei r,rr t('rmtnatloll by the legislative body Con- cerned. State ex rel. Iloward v. Village of 12oscvillc, 244 Minn. 3-1a, 70 NAV.2d 404 W),55). }:vcn where the reasonableness of a zoning ordinance is debatable or where opinions differ as to the desirability of the restriction it imposes, the courts are not to interfere with the legislative discretion. WC said in State v. Modern Box Makers, Inc., 217 Minn. 41, 47, 13 N.W.2d 731, 734 (1O-14) : "Defendant finally contends that the ordinance is arbitrary and unreasonable in its application to the property here in- volved. * * * The general rule is that if reasonableness of an ordinance is debatable, courts will not interfere with the legislative discretion-" 191 The trial court placed considerable emphasis on the fact that defendant's brother conducts a similar nonconforming business adjacent to the subject premises, and that enclosing within a building that which was formerly performed in the open twill he aesthetically beneficial to the area. While these factors may create sonic doubt about the reasonableness of the enforce- ment of the ordinance in this case, we can- \plu•al, :i`t•1 I'n. 100, 119 A.2d (,tuts 10 E v. FREDLUND Mill 327 l•iIv;I. 20:1 X,w1t1 327 nol agrcc that th v arc "tlf ficiclit to over- conie the presumption that the legli,lativc ]loch hats acted rcasonahli ;uld in 11 ni:oun•r consistent with thy= gcncral welfare of the rrnonnuiity. him of tilt- I ight to liave the land rezoned. An offer of proof %vas made, hilt objection to it %Ias sustained 11v the trill court and III) finding w;ts m adc on that (luestion. If, in fact, the land cannot he used for resi- denl i d pnrpoaS it 111'ty t\ CH Lc ;In nnc0n- We have held ntanv Buie" tb:tt rr,idrn- ti;Il rorliri){ is ;I valid CXCI-Cisc of Illy ],,lick' pimrr, is ill the I)IINic interest, :Intl ad- vances the public \%cIfarc. Statc vx rcl. liccry v. Ilou;;liton, ]tit Minn. 14h,'l14 N. W. 509, 5-1 A.L.R. 1012 (1025), :Iffii-mcd per cnl-Mill, 273 U.�. 071, 47 S.l-t. .1 -1, it L.l•:II. 832 (1`t 1) ; Statc cx rcl. I loward v. III:Igc of lZosCvdlc, soprtr; St;ilc v. Mod- crn liox \takers, Inc., supra; N:wgcic ()tit( oor Advcrtising Co. v. ViII;I};e of \linnetunl:;I, srirrtr. TIICI-c is no cvidencc Ihat the cstahlIshnicnt of this rcsiderlti:11 arra ivas unrrasonablc or that it was not in illy plihlic interest. Similarly, a careful review of the I ccord reveals nu snl'stantial vvidence to support lilt- finding that Iht- en forccntcnt of tilt- w-dirlance is urlconstitu- liorlal ;is to dcft-ud:nit. Deft•lld;iilt is cnti llcd to continnc ltis present nonconforming list- in the "ante n1:ulner and to the same t-zlcII1 that it was operatt-tl at the time lilt - rolling ordin;uicc went into effect. Iloxv- crcr, the enforcement of the oi'dinanct- will enhance Illc possihilitY that dt-ft-nd:ult's nonconfornlilig Ilsc X\ill cvcnlltally be phas<•d (Jilt. 7 his is :I rt:t,Uil:tlilt- nlcarls to the end of cstahli,hirlg a Uniform I-L-tiIdeii- tial area. Tllc i,sucs involved in this case ;ur novel and luulsual, and it is ohvions from tilt- rccord that the U'i:d court has ,pent con- sidcrahlc tilne :out effort in attculptilig to rrsulve thin(. 11o�ccccr, it is our opinion th:It the attrnlptt-d CUIlstiliCtiUn of ;t huiltl- ing on dcft-ndalit's Lind t%as an cxp:olsion :nut r.\tcnsiou of the nonconfolntititi Ilse ;out that the enforr•t-nlent t,f the ortlin;Incc .against defendant is not unconstitutiolml. 'I•hcrefore, WC rcvcrse. 1 10, 11j It appears from the record that dt-fcndarlt asserts that the l: ild c:nniot be user] for residential purposes and that, therefore, it is unconslitilt ional to deprive slilntiollal taking without clue process of law to dt-fcndant tit<, right to rezone. We revt-rsc the trial court without prejti- <lice to tilt, right of defendant to petition ;tgain for rczoninr on the ground that the land is not siiilablc for its(- for residential pnrposcs. Ill the event dr•feudant petitions for rezoning, :Ili procccdin{;s should he staccd until a filial t11•1cr11111mtiorl is made on the petition. Rt-vt-rscd. w o s elr nun ere ir,un Alene A. 130WE, et at., Respondents, V. John FREDLUND, et it., Appellants. No. 43449. N1i],rciue t'onrt of Minneuzota. I� Action for injilrics sustallic<i by pas- >t n�cr \hell autonnrhilc in t%hich site was I idin}; \t as stracl< frtmi re;ir hp a car driv- en Icy defcndalit. The I)istricl Cotirt, t ;oodhuc Comity, John P. F ricdrich, J., en- tcred judgment adverse to dcft•ndant, and demcd defendant's aNciii hive motion for a nt-ll lri;il of a IcIllillilnr, :111d defendant ;Ippcalcd. The Sliprcinc Court, Mae- I.au1l)lin, J., held that defendant overtak- ing motorist, \\-]to, when Ihcrc were ap- prosiniatcly seven cat- ieugths behaeeu her car anti ovcrlakcn Car, noticed :111 insect on her arnl, who claimed that she was afraid of inst-cts, that silt- ,crcamc(l and hruslicd insect off her arm, and that slit- looked tip to find that she was only ;tbout one and a 0 J 1 0061 RUSSELL H. LARSON CRAIG M. MERTZ OF COUNSEL HARVEY E. SKAAR MARK C. MCCULLOUGH l�irt�l ATTORNEYS AT LAW As, t � 1900 FIRST NATIONAL BANK BUILDING ifs, C-i 111-J - / •C'///N �� MINNEAPOLIS, MINNESOTA 55402 l % 7 TELEPHONE '(�q�� �R 1 (611) 335-9565 January 16, 1979 Donald W. Ashworth Chanhassen City Manager Box 147 Chanhassen, MN 55317 Dear Don: JAN 1979 Rec,el VILLVZO AGe7 o CHANHAssZN Re: Pending and Potential Litigation Councilman Geving recently requested that this office furnish a status report of pending litigation against the City,. Our report is as follows: Northern Contracting Arbitration Claim_ Northern Contracting Company, one of the contractors in the East Lotus Lake Project, has made a claim under the American Arbitration Association rules for $60,236.74 for additional labor and equipment expended and. -:,,to be, expended in connection with work performed in the East Lotus Lake Sewer & Water Project. The nature of the dispute, according to Northern, is that due to inadequate specifications, soil backfill subsidence in areas where sewer and water mains and services were installed has necessitated a costly repair program which Northern feels should be paid for by the City of Chanhassen. This claim is now pending before the local office of the AAA and we anticipate that the arbitration hearing will be scheduled for some time in late March or early April. The essential element of the City's defense is that the contractor failed to compact as. required by the specifications. This is supported by independent testing. Cermak Zoning Litigation It will be recalled that the City has instituted litigation against the Cermaks for abatement of the nuisance maintained by them on State Highway ##7. Cermaks have answered the City's complaint with a general denial of all allegations made by the City. We have requested the defendants to produce for our inspection any Chanhassen Township documents relating to building permits or zoning changes involving the Cermak property. The Cermaks have until February 15, 1979 to supply these documents. Settlement discussions have been held, but were inconclusive. It is anticipated that the matter will come up for trial in April or May of 1979. City of Chanhassei. -2- 1/16/79 Kurvers East Lotus Lake Condemnations The East Lotus Lake Sewer & Water Project required the procurement # of easements from Mary, Frank and Mel Kurvers for installation of sewer lines across parcels of land owned separately by them. The lines were installed under a right of entry, but negotiations for procurement of the final easement documents have not been success- ful. City appraisals of the easements have been ordered, and a condemnation petition will be filed this month. The first meeting of the condemnation commissioners will probably. occur in March of 1979 with an award some time in April or May of 1979. Robert Bowen Easement Restoration Litigation On January 4, 1979, the City was served with a complaint alleging improper easement restoration resulting from sewer construction on Bowen property in the Christmas -Lake Creek area. The Bowens allege ..damages in the amount of $43,900, which the City will. deny. We will be issuing interrogatories to force the plaintiffs to more fully disclose the nature of the grievance. �h A number of discussions have been had with Mr, Bowen and his attorney over the past months, but we have not been able to satisfy the demands. We feel that litigation is the only way open at this time 'to resolve the issues presented by the Bowen claims, although we will continue -negotiations with. the hope the matter can be settled short of trial. Bowen Carver- Beach Assessment Appeal The Bowens have appealed the special assessment against their property levied in the Carver Beach Sewer & Water Project. It is our firm ,'Y1 conviction that Mr. Bowen does not fully understand the manner in which he was assessed in the Carver Beach Project, and we feel that we will be able to convince him and his attorney of the correct- ness of the assessment without the necessity of trial._ It should also be noted that Mr. Bowen is not pressing this litigation. Apple Valley Red=i-Mix Litigation Apple Valley Red-i-Mix has. instituted an action against the City seeking a court order compelling the City to issue a building. permit for the erection of a fly ash silo at its manufacturing location. The City has interposed its answer to this suit, alleging that the issuance of such a permit would be in violation of the zoning ordinance, as such construction would constitute an enlargement'of an existing non -conforming use. We have been advised by the attorney for Apple Valley that he wishes to take the depositions of Mayor Hobbs, Councilman Neveaux, and former City.Planner Bruce Pankonin. No formal notice of these depositions has yet been served on us. We anticipate a trial date some time in the summer of 1979. City of Chanhassen -3- 1/16/ 79 Behmer Hazardous Build Litigation The City has instituted action against Kurt Behmer and his contract for deed vendee, Douglas B. deWaligon, for the removal of a structure in Carver Beach which our City Building Inspector claims constitutes o an attractive nuisance to young children in the neighborhood. DeWaligon has interposed an answer to this proceeding, and in discussi, with his attorney, we have been advised that the building will be boarded up. I have referred the attorney to Jerry Schlenk to discuss the manner in which the building is to be secured, and the establish- ment of a deadline for the doing of the work. Frank Kurvers West 79th Street Special Assessment Appeal Frank Kurvers has appealed the special assessment against his property ?` for paving in the West "79th Street Project. We have furnished his n^ attorney with copies of.pertinent documents from the City file relating to this appeal, and we do not anticipate that the case will be reached.for trial until the summer of 1979. Martin Ward Special Assessment Appeal Mr. Ward appealed the special assessments against his property resulting from the Frontier Development Park Storm Sewer Project r� several years ago, but the case has been pending for some time wi-th - no asserted action being. taken by the appellant. In view of Mr. Ward's physical condition, we feel it is in all likelihood that no trial will.actually take place on this,matter. Ward North Lake Susan Condemnation The City was compelled to institute.condemnation to procure a trunk sewer easement across the Ward property near the shore of Lake Susan, and this action is presently pending in Carver County District Court. The.first:.hearing on this action has been scheduled for Friday, February 2. Prior to the onset of his recent disabling illness, Mr. Ward instructed his attorneys and family to.resist`our efforts to secure the easement, and we anticipate that we will be met with considerable opposition on February 2. In addition to the foregoing matters,' which are litigation stage, we anticipate that litigation by or against the City in the following matters: Chanhassen vs. Brown Enterprises, Inc. currently in the may be instituted This is a contemplated action against Brown' Enterprises, Inc. for failure to clean and paint the elevated water storage tank located near Iroquois Avenue and West 76th Street pursuant to its contract dated March 20, 1978 with the City. We are presently studying the possibilities of such an action, and will furnish the Council with a report shortly. its City of Chanhassen Chanhassen vs. Harley Hoffman, Inc. 1/16/79 This is a contemplated action against Harley Hoffman, Inc. for. damages as a. result of its failure to correct the defective work in the Carver Beach Sanitary Sewer & Watermain Project 75-2. It is the claim of our engineers that the work to be corrected primarily includes settlements of service trenches, hydrant leads around manholes and around gate valves. It is the engineers' opinion that these settlements are all due to inadequate compaction of trenches, and that if the contractor had followed specifications, this subsidance problem would not have occurred. We are presently studying theprospects of such an action, and we will furnish the Council,wi.th a report on our study within a short time. DNR/U.S. Corps of Engineers/Eide vs: Chanhassen It has been.alleged'by the DNR and U.S. Corps of Engineers_ that fill from -the Lake Riley.Sewer Project was placed in a wetland area on the Eide property without prior.approval from DNR or the U.S. Corps of Engineers. Preliminary discussions with.the DNR and Corps of Engineers indicates that there are many unresolved questions in this matter, one of the most critical problems being whether there was any official designation by notice to the property owner and hearing on the designation of the Eide property as an official wetland. Also involved is the question of whether the contractor had received any specific instructions or requests to place the fill on�the property. At -this point, we view the exposure of the City to be_minimal. Hibbert Hill Erosion Problem I belWe most of you are already aware that Mr. Hill has voiced several. complaints concerning erosion caused by sewer line work i° along.the waterway of Carver Beach Creek as it passes through his ',property. Litigation has been threatened, but.not as yet instituted It is�<our understanding that the engineers are studying the problem and will recommend corrective action to be taken in this' matter,. Char -Lynn Special' Assessment At .the time the East Lotus Lake Project was assessed, a special' assessment in the amount of approximately $17,000 was levied against property which is being acquired by the DNR along the water course of Purgatory Creek as it leaves Lotus Lake. We have been met with requests by Char -Lynn that the special assessments be lifted by the City, but.we have taken the position that under the state law, the acquiring agency, in this case the DNR, must make provision for payment of ,the. special assessments. We have so notified the State Commissioner of Revenue and the County Auditor of the City's claim in this regard, and it would not surprise us if Char -Lynn instituted some type of litigation to attack our position. We feel that the City.has a.solid defense under state law. City of Chanhassen -5- 1/16/79 This will give the Council a brief review of the litigation matters. If a more elaborate report is necessary._, we shall be happy to oblige. z--- I-\ ery u�y y , RUSSELL H. LARSON Chanhassen City Attorney too LARsow & MERTZ ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILDING RUSSELL H. LAR50N MINNEAPOLIS, MINNESOTA 55402 TELEPHONE CRAIG M. MERTZ (612) 335-9565 May 30, 1980 OF COUNSEL HARVEY E. SKAAR MARK C. McCULLOUGH Honorable Martin Mansur Dakota County Government Center Hastings, Minnesota 55033 Re: Court File No. 16193 Apple Valley Red-E-Mix vs. City of Chanhassen Dear Judge Mansur: This office acknowledges receipt of Mr. Duffy's letter of May 29, 1980, which was written in response to the Chanhassen Reply Brief in the caption matter. This office feels that all of the relevant issues in the case were fully discussed in the Chanhassen Reply Brief and we'do not feel that anything would be added to the case by responding to the arguments advanced by Mr. Duffy in his letter of May 29th. Accordingly, the City of Chanhassen submits that the petition of Apple Valley for a writ of mandamus should be denied. RHL:ner cc: Donald W. Ashworth Mark Koegler Very truly yours, RUSSELL H. LARSON Chanhassen City Attorney 111 34 ti JUN 1980 ell� �Cai. M�►�1G T v. C 0 oe� LAW OFFICES PETERSEN, TEWS 8 SQUIRES PROFESSIONAL ASSOCIATION 600 NORTHWESTERN NATIONAL BANK BUILDING ST. PAUL, MINNESOTA SSIOI TELEPHONE (612) 29171611 May 29, 1980 A. Honorable Martin Mansur Dakota County Government Center Hastings, Minnesota 55033 Re: court File No. 16193 Apple Valley Red-E=Mix vs. Our File No. 1701-02 Dear Judge Mansur: City of Chanhassen RODGER D. SQUIRES J• DIXON TEWS JOHN W. PETERSEN GERALD S.DUFFY LAURA D. MANSKE WAYNE J. STUDER This letter is written in response to the Respondent's Reply Brief which we received in the above -captioned matter. At the trial, you indicated that the Petitioner could file a Reply Brief if we found it necessary to do so. Since we have only a few comments regarding the Respondent's Reply Brief, our response will be limited to the following remarks: 1. In the Respondent's Reply Brief, the Respondent has asserted that the City did not concede at trial that the storage silo was not a building. Our trial notes reflect that Attorney Larson conceded that the storage silo was not a building on behalf of his client. Of course, any of the Court's notes to the contrary will be binding, but.it is our recollection that the Respondent has conceded that the storage silo is ,not a "building" as defined by the City ordinances. 2. The Respondent has asserted that the City was not limited to Section 20.06 of the zoning ordinance because of the word "intensification" in its reason for the permit denial, and that the City is not required to make exact findings to support its conclusions. A review of the Minnesota Supreme Court's decisions on this matter indicates that the Respondent's contentions are without merit. If the Court takes notice of the nature of its judicial review of this matter, it is apparent that the reasons stated by the City are the only reasons that may be considered. The most applicable rule of law that governs this case was expressed in Corwine v. Crow Wing County, 244 N.W.2d 482 (1976) where the Court said: "If the decision -making body does state reasons, review will be limited to the legal / PETERSEN, TEWS & SQUIRES Honorable Judge Mansur Professional Association Page Two May 29, 1980 sufficiency and factual basis for those reasons." (emphasis added) 244 N.W.2d at 486. A. Therefore, a governing body must be precise in phrasing its findings which effect the rights of its citizens. It is the function of the judiciary to review the findings when a governing body acts arbitrarily or capriciously and unjustifiably impinges on a citizen's property rights. 3. Finally, the Respondent strongly relies on County of Freeborn v. Claussen, 203 N.W.2d 323 (1972) in support of its position that nonconforming uses are not to be expanded. The Petitioner does not disagree with that statement of the law. However, the question before the Court is not whether it is permissible to expand a nonconforming use, rather the question before the Court is whether the use of a storage silo is an intensification of a nonconforming use. The Freeborn case does not answer that question and is irrelevant to'the issues to be decided herein. However, its recognition of the general principle that the Constitution mandates that nonconforming uses be permitted to remain or be eliminated by the use of eminent domain is helpful in understanding one aspect of this case. Other than the points addressed in this letter, the Petitioner relies on its Trial Brief in support of its propositions that the storage silo is not a "building" or a "structure" as defined by the City ordinances, and that the storage silo is not an intensification of a nonconforming use. Respectfully submitted, PETERSEN, TEWS & SQUIRES PROFESSIONAL ASSOCIATION BY: GERALD S. DUF C� cc: Fischer Construction Co., Inc. Fussell H. Larson, Attorney for Respondent F --4f .v c r i � F, 3 � {■gyp;j } ; 7610 LAREDO DRIVE oP.O. BOX 147*CHANHASSEN, MINN ESOTA55317 (612) 474-8885 May 9, 1978 Apple Valley Red-E-Mix, Inc. Mr.'John Erocson 6801 West 150th St. Apple Valley, MN Re: City of Chanhassen, Apple Valley Red-E-Mix, Inc, Development Proposal Dear Mr. Ericson: On Monday, April 24, 1978, I received two copies of a landscape plan accompanied by a letter from you requesting that Apple Valley Red-E- Mix be placed on the next council agenda. I have since consulted Don Ashworth and Russell Larson concerning this matter and have found, in accordance with council action, several informational items must be furnished before .the Apple Valley proposal appears again. before the council. Information which must be provided is as follows: 1. What are the -sources of fly ash to be used at the Apple Valley facility? 2. What is the composition of the f_ly ash and is it acceptable by the Minnesota Pollution Control Agency? 3. Are the current and proposed dust control measures adequate to M.P.C.A. regulations? Furnish MPCA evaluation. A. Have proper certifications pertaining to fly ash source and dust control been obtained from MPCA? If so, furnish copies of certifications. 5. What is the present volume of truck trips per day as compared. to 1977, 1976, 1975 and 1974? 6. If the third silo is approved, how many more truck trips will be generated per day? _2_ May 10, 1978 P:Zr. John Ericson 7. What is the daily tonnage of present production as opposed to 1977, 1976, 1975 and 1974? 8. If the third silo is approved, what will be the daily tonnage of production? 9. Will the screening and landscaping as proposed effectively conceal the operation? 10. How would the addition of the third silo ultimately -affect potential relocation settlements and the issue of intensifying a non -conforming use? 1. Will Apple Valley agree in writing that it will waive all compensation for relocation of fly ash silo in event of acquisition of property by the city or it's agencies? When these materials are documented, please send them to either Don Ashworth or myself. sincerely,-, 1Bob 6vaibel Assistant city Planner BW:k CITY OF 7610 LAREDO DRIVEOP.O. BOX 1470CHANHASSEN, MINNESOTA 55317 (612) 474-8885 MEMORANDUM TO: City Attorney, Russell Larson FROM: Assistant City Planner, Bob Waibel DATE: May 2, 1978 SUBJ: Apple Valley Red-E-Mix Proposal On Monday, April 24, 1978, I received two copies of a landscape plan accompanied by a letter from Mr. John Ericson requesting to place Apple Valley on the next council agenda. I have subsequently discussed this matter with Don Ashworth and we concurred that several informationa items might be furnished before the Apple Valley proposal appears again before the council. Some of the questions for which information could be provided are as follows: 1). What is the source of the fly ash to be used at the Apple Valley facility? 2). What is the composition of the particular fly ash and is it acceptable by MPCA? 3). Are the current and proposed dust control measures adequate to MPCA regulations? 4). Have proper certifications pertaining -to fly ash source and dust control been obtained from MPCA? 5). What is the present generation of truck tripsper day as compared to previous years?: 6). If the second fly ash silo is approved, how many more truck trips will be generated per day? 7). What is the daily tonnage of present productions as opposed to previous years? 8). If the second fly ash silo is approved, what will be the daily tonnage of production? 9). Will the screening and landscaping as proposed effectively conceal the operation? Mt. Russell Larson -2- May 2, 1978 10). How would the addition of the second fly ash silo !ultimately affect potential relocation settlements and the issue of intensifying a non -conforming use? These are the questions that I would like to receive your input on as to their appropriateness for the next council review, and any comments and additions you may have that would be helpful in reaching a decision on this matter. cc: Don Ashworth, City Manager STATE OF MINNESOTA COUNTY OF CARVER The City of Chanhassen, a ) Minnesota municipal corporation ) Plaintiff, ) VS. ) Apple Valley Red-E Mix, Inc., ) a corporation, ) Defendant. ) COUNTY COURT CRIMINAL DIVISION STIPULATION AND ORDER File No. 2956 WHEREAS, the above captioned matter involves the alleged violation by Defendant of Section 301 of the Uniform Building Code (adopted by reference through the Chanhassen Building Code, Ordinance No. 23-B) in that it is alleged by Plaintiff that Defendant, on or about June 17, 1981, constructed a certain metal fly ash or cement storage silo on premises presently occupied by it without first procuring a building permit therefor, and WHEREAS, it is further alleged by Plaintiff that the erection of said storage silo, approximately forty (40) feet in height, ten (10) feet wide, and 4,000 cubic feet in volume, violated S20.02 of the Chanhassen Zoning Ordinance, which provides that "no non -conforming use shall be enlarged, altered or increased, or occupy a greater area than that occupied by such use on the effective date of" said ordinance, and WHEREAS, the parties hereto desire to resolve the issues presented by the alleged violations of said ordinances; NOW, THEREFORE, It is hereby stipulated and agreed by and between the parties hereto, as follows: 1. Defendant shall immediately dismantle said storage silo. 2. Defendant agrees that, without first having received the written approval of said city,, it shall not at any time in the i future cause or permit on premises presently occupied by it in said city, the erection or construction of any structure, building, or hoist, elevator, silo or similar mechanical device which in any manner enlarges, alters or increases the physical dimensions of the building structure of the ready mix concrete plant as it existed prior to erection of the additional storage silo on or about June 17, 1981. 3. Defendant agrees that in the event of its failure to comply with the terms of the within Stipulation, and upon the filing of an affidavit by the City attesting thereto, after due hearing thereon by the Court, the Defendant may be adjudged guilty of contempt of court and punished accordingly. 4. In consideration of the execution of the within Stipula- tion by Defendant, the City agrees to dismiss the pending ordinance I violations criminal citations presently set for trial on September 22, 1981. Dated this day of September, 1981. APPLE VALLEY D-E MIX, NC. BY Z ��✓ 1 s%!% Its f4cz� CITY OFZCHHASSEN By - - Its 3% a$2=. PETERSEN, TEWS && SQUIRES By Attorneys for Defendant 600 N.W. National Bank Building St. Paul, MN 55101 LARSON & MERTZ BY Attorneys for Plaintiff 1900 First Bank Place West Minneapolis, MN 55402 COURT ORDER The foregoing Stipulation is hereby approved and upon the filing thereof, the above captioned matter is ordered dismissed. JUDGE, COUNTY COURT Dated: September , 1981. 751 Council Meeting August , 1981 -7- S are many questions that the Council would like to be asking staff and I do have a letter from one of the affected people and there are some items in there that I would like to have answers to at that next meeting. Councilwoman Swenson moved to continue the public hearing to August 31, 1981, at which time written comments will be considered. Written comments should be received at the Citv Office by Friday, August 28. Motion seconded:by Councilman Horn. The following voted in favor: Acting Mayor Neveaux, Councilwoman Swenson and Councilman Horn. No negative votes. Motion carried. CONDITIONAL USE PERMIT REVOCATION PUBLIC HEARING DON 1i.1NUS 229 WEST 19TH STREET The purpose of this hearing is to consider the revocation of the Hanus Conditional Use Permit. The sub -committee met with Mr. Hanus last Saturday and felt that some agreement had been reached. Councilwoman Swenson stated that the sub -committee had been assured by Mr. Hanus that he would conform to the agreements that the Council comes up with. Mr. Hanus would like to purchase a 95' x_200' used steel building to be used for storage. Councilwoman Swenson has viewed this building and recommended that if the Council allows this building to be moved in that Mr._ Hanus paint it and that it be maintained and if he doesn't the City will have it done 'and charge all cost: to Mr. Hanus. Mr. Hanus will immediately install web screening in.the chain link fence along the north and south sides of the building. Councilwoman Swenson suggested that trees be planted of an adequate height to screen the new building. A parking area was requested on West 79th Street which the sub -committee slid not favor. The sub- co-mittee suggested that Mr. Hanus be permitted to have customer parking along the north side of .•lest 79th Street - Councilman Horn moved to continue the public hearing until September 21 at which time the Council can hear comments and recommendations from staff and the Planning Commissic Motion seconded by Councilwoman Swenson. The following voted in favor: Acting Mayor Neveaux, Councilwoman Swenson and Councilman Horn. No negative votes. Motion carried. It was decided that the Acting Mayor would not sign the "no parking on West 79th Street Resolution until after September 21 pending the outcome of the`.public hearing. BALTIC CONDITIONAL USE PERMIT: The City Attorney discussed the status of this court case. It is pending in Carver County District Court at this time. APPI.i: VALLEY RED-E-MIX: The City Attorney will prepare a letter on this item for the Council. PLAN REVISION: Mark Koegler discussed proposed revisions to the plan. :'etr » olitan Council staff has requested additional information prior to their continui the review of Chanhassen's plan. 1. Timetable for the adoption of the Official Zoning Ordinance controls. 2. They leave a question about Highway 5. It was shown as a intermediate arterial versus Metropolitan Council's minor arterial. Metro Council staff asked for a re v ie,;a 1 of that point. 3. ',i;iitiunal information on M. A. Gedney Company sewage discharge. Cr::il connecting Bryant Lake in Eden Prairie to the Minnesota Valley National ::iidlife Refuge. a. ,(icitional narrative on a description of controls and regulations or what the City :eels with regard to natural resource protection. Councilman Horn moved to table action on the Comprehensive Plan review until such time as a more definitive staff report is forthcoming and instruct the consultant to proceed 1 t RUSSELL H. LARSON. CRAIG M. MjERTZ OF COUNSEL HARVEY E. SKAAR MARK O. McCULLOUGH LAIRSON &--VIF-UTZ ATTORNEYS AX LAW 1900 FIRST NATIONAL BANK BUILDING MINNEAPOLIS, MINNESOTA 55402 Chanhassen City Council c/o Donald W. Ashworth Chanhassen City Manager Box 147 Chanhassen MN 55317 May 19, 1980 Re: Appley Valley Red-E=Mix, Inc. vs City of Chanahssen Dear Council Members, F-ram t TELEPHONE (612) 335-9S65 Enclosed herewith you will find a copy of the .Apple Valley Red-E-Mix Trial Brief and a copy of our Trial Brief in reply -thereto. The matter is now in consideration of Judge Martin Mansur. Very' tr 1'y yosy? RUSSELL H. LARSON Chanhassen City Attorney RAIL: ner Enc cc: All Council Members Mark Koegler APPENDIX A t- CERTIFICATION STATE OF MINNESOTA ) ) ss COUNTY OF CARVER ) I Don Ashworth , duly appointed, qualified and acting City Manager for the City of Chanhassen, Minnesota, do hereby certify that I have compared the foregoing copy of Ordinance 23 dated March 4, 1968 Ordinance 23-A dated January 26, 1970 with the original copy, now on file in my office, and have found the same to be a- true and correct copy thereof and as approved by the City Council. Witness my hand and official seal at Chanhassen, Minnesota, this 7th day of May 19 80 City Mande-er 1. VILLAGE OF CHANHASSE CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. ,� 3 AN ORDINANCE REGULATING THE ERECTION, CONSTRUCTION, EN.LARGEI•ENT, ALTERAT REPAIR, MOVING, REMOVAL,CONVERSION, DEMOLITION, OCCUPANCY, EQUIPP,IENT, USE HEIGHT, AREA, AND MAINTENANCE OF BUILDINGS OR STRUCTURES IN THE VILLAGE OF CHANHASSEN, MINNESOTA; PROVIDING FOR THE ISSUANCE OF PEf2M.ITS AND COLLECTION OF FEES THEREFOR; DECLARING AND ESTABLISHING FIRE DISTRIC' PROVIDING PENALTIES FOR THE VIOLATION THEREOF, AND REPEALING ALL ORDINANCES AND PARTS OF ORDINANCES IN CONFLICT THEREWITH. The Village Council of the Village of Chanhassen ordains: Section 1_ Uniform Building Code_ A certain document, three copies of which are on file in -the office of the Village Clerk of the Village of Chanhassen,. being marked "official copies" and designated as "Uniform Building Code, 1967 Edition, Volume I", copywrited and publi.shec in 1967 by International Conference of Building Officials, be and the sar is hereby adopted as the Building Code of the Village of Chanhassen for regulating the erection, construction, enlargement, alteration, repair, moving, removal, conversion, demolition, occupancy, equipment., 'use, heig! area, and maintenance of buildings or structures in the Villager of Chanhassen; providing for the issuance of permits and collection of fees therefor as hereinafter provided; providing penalties for any violation of such code; declaring and establishing fire zones; and each and all of the regulations, provisions, conditions, terms and penalties of such "Uniform Building Code, 1967 Edition, Volume I", are hereby referred to, adopted and made a part hereof as if fully set out in this Ordinance except for the changes, deletions, and alterations thereof hereinafter set forth. Section 2. Construction of Code. Wherever used in said Unifor Building Code, ".Cit_y" shall mean Village of Chanhassen "City Council" sha mean Village.Council, and "Building -Official" shall mean Building Inspect Section 3_ Changes, Deletions and Alterations. The following sections, portions or parts of said Uniform Building Code are hereby changed, deleted or altered as follo,is: A. Section 205 is hereby amended to delete therefrom "a fine of not more than $300", and to substitute therefor "a fine of not more than $100" . I3. Section 205 is hereby amended to add the following paragraph. The application of the above penalties shall not be held to prevent the of prohibited conditions" C. Section 301, paragraph (c) is.hereby amended to delete the last. sentence therefrom and to substitute therefor the following sentence_ "When required by the Council or state law, plans and spectfica'ti0nss. seal_ k>e prepared and desi designed b an archit� c off= y ' . o.r qu�zl. �fid enga n �'. by JicJ t;ta e``ci.i M1hn' esib,_a to pract ice as suc'ri _ " ` •` ' "` `� D. Section 301,_paragraph (d) is hereby amended to read as follows: (c1) Inforrr%z'- _on on Plans and- Specifications. Plans shell .be drawn to scale upon substantial paper r or cloth and shall be accompanied by. specific P c -2- of sufficient - clarity to indicate the nature and extent of the work prof and show in detail that it will conform to the provisions of this Code a all relevant laws, ordinances, rules, and regulations. The first sheet of each set of plans shall give the house and street address c r legal description of the lot and the name and address of owna-r and person who prepared them. In lieu of detailed specifications, the Building Offi.cia may approve references on the plans to a specific section or part of thi Code or other ordinances or laws. a Plans shall include a survey of the lot upon which the proposed building or construction is to be done, prepared and attested by a registered surveyor, and providing the following information: (1) Scale of drawing. (2) Lot and block number or legal description of lot. (3) Dimensions of lot and north point. (n) Dimensions of front, rear, and side yards. (5) Locations of all existing buildings on the lot- (6) Location of proposed building or construction. (7) Location of stakes established by the surveyor along each side lot line a distance of 30 and 60 feet from the front lot corner. The maintenance of these stakes once established by the surveyor shall be the responsibility of the building permit applicant. (8) The side yard. and set back dimension of building located on adjacent lots. (9) The location of all easements as shown on record plats. (10) Grade elevations at the following points:. a. Each lot corner (either existing or proposed)_ b. Crown of proposed street at each lot line extended. C. Proposed lawn and driveway elevations at the street side of house. Such elevation may be based upon an assumed datum but shall be tied by the surveyor to a specified bench mark for which the elevation has been obtained From the Village Engineer's office. (11) The proposed disposal of drainage and surface waters, indicating direction of surface water drainage by arrows. Computations, stress diagrams, and other data, sufficient to show the correctness of the plans shall be submitted when required by the Buildin< Official_" E. •Section.301 is amended to add thereto paragraphs (.f) and (g) as follows-.. "{.r) menial of Permit. The Building Inspector. shall. deny a permit for fl'r °f'_1 +ty _'-ilrTlt Of 3 'C�:vc? �l-' nu on C _Loitn d ;dyt' ch is too lt7`r i --or ade�-:ivat drainage of surface waters.* he shall also deny a peen t for construction or enlargement of any building when it appears that the proposed elevations of the lot for which the permit is to be issued, in relation to the established or proposed grades of adjoining or nearby streets, will probably cause a_change in the existing drainage of surfack waters which will result in substantial hazar_d� or. inconvenience to person residing in t,-:e Village or traveling on its streets- /'(Y') InLerfererrce writ SurfL1ce Waters. p y permanent obstn �"''1- No tr_rn rr'1�r or diversion, bridging o� confining of an existing _Jiannel_ or natural Watea through or over which any lake, strearn or surface water naturally flows be made without the written approval of the Village Engineering and Building Department." F. Section 303 is hereby emended to provide in Table No. 3-7L there that a fee of $1.60shall be charged for proposed construction of a valu Of $1..00 to $500.00; Section 303 is hereby further amended by chan�;-ing subsection (b) thereof to read as hereinafter set forth, and by aduing thereto subsections (c) , (d) , and (e) as follows: (b) Plan Checking Fees. When the valuation of the proposed constructi exceeds $1,060.00 and a plan is required to be submitted by subsection of Section 301, a plan checking fee shall be paid to the Village at the time of submitting plans and specifications for checking. For all buildings except single family residences, the plan checking fee shall bj equal to one-half of the building permit fee as set forth in Table No. 3- There shall be no plan checking fee for single family residences_ (c) Demolition Fee. The fee for a permit to demolish a building shall be $10.00. (d) Refund of Fees. Upon return of .a building permit .to Village by the holder thereof, «itii proof satisfactory to the Bui Ming Official. that no construction was undertaken pursuant thereto, he shall refund to the holder the building permit fee paid by him, except that 5% of fee paid oz $25.00, whichever is greater shall be retained by the Village. A like refund shall be made of any plan checking fee paid under subsection (b) hereof, except that no refund shall be made if the Village has caused the plans to be checked. (e) Park and Recreation Fees. The fees set forth in Table 110_ 3-A, shall be inclusive of the fees set forth under Option Three of Section 1 of Ordinance No. 14." G. Section 1601, Paragraph (a) is hereby amended to read as follows ' (a) F=i.re � ones_Defi'ied For the Purpose of this P Code, the entire Villac( is hereby derl_ared to be and is hereby established a Fire District and Szl.i_d Fire District shall be known and designated as Fire Zones one, Two, and 'Three. All areas in the Village which are zoned as being in a com=nercial.or industrial zone shall be in Fire Zone Two, and all other areas ih'the•Village shall be in Fire Zone Three. `.L'he Council by ordinanc hereinafter enacted may reclassify any of the areas of the Village to be in Fire Zone One. Whenever in this Code reference is made to arty Fire Zone, it shall be construed to mean one of the PiCones hereby crewed. H. Section 250`' f_ 1 . is hereby amended to delete `�r p a ra r r £ �h th A,.. n r z .. .A_.. �.< .I-L'o aragrap1h (a&) , as fai'Llo,vs y " (aa) Sheathirr �111 exterior wood. stud walls shall be sheathed and adequ���el.y fast ,�r_ed with eight penny nails spaced. 2'_ 1 , 1� on st_L .s , - et, c-al, C - i �l C a-sp i ✓ '� y' C7 C. ) 11 1 i_ li CJrE'=iii t `.`.C. 1Clt c! f_ib`'r ;DC3;tr:a OE Wood, shall, be cOv(7 -e-d On the OutsZde face Wi4- One layer of waterproof buildinq paper_ ' If wood boardinq of sh.ip:Lap is used thee minimum thickness shall be 5/S" . If plywood sheathing is used be 25/3ss shall. be 1/2", and if sheathing of fiberboard is used, it-, shall be 25/32" thick_ 1 Section 4. `or, parts, portions or are hereby repealed. -4- irdinances Repealed. All ordinances of the Villa( section of such Ordinances in conflict herewith Section 5. Title. This Ordinance including all portions herE hereby adopted by incorporation and reference is hereby entitled. and shall be cited as "The Chanhassen Building Code". Section 6. Effective Date. This Ordinance shall take effect and be in :Force from and after its passage and publication.. Passed by the Council this �rf ATTEST :0 ;i i; Clerk day of — , : 1968. Mayor Published -in j':�%.- /,- /:.y ; �, on the iT clay of 1968. RHL 1/2 6, VILLAGE OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. 23 A - AN ORDINANCE AMENDING ORDINANCE NO. 23, THE CHANHASSEN BUILDING CODE, TO DELETE THEREFROM SUBPARAGRAPH (e) OF SUBSECTION F OF SECTION 3. THE VILLAGE COUNCIL OF CHANHASSEN ORDAINS_ SECTION 1. Ordinance No. 23, adopted March 4, 1968, and entitled "The Chanhassen Building Code", is amended to delete therefrom Subparagraph. (e) , Park and Recreation Fees, of Subsection F of Section 3. SECTION 2. This ordinance becomes effective from and after its passage and publication. . x� Passed by the Council this _ �_ day of 1970. MAYOR h�. ATTEST: CLERK Pub1i'shed in l� "f i r) �L-1/ on the c�dav of Z/— !�i: r 19 RHL l./26/; VILLAGE OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. 23 A AN ORDINANCE AMENDING ORDINANCE NO. 23, THE CHANHASSEN BUILDING CODE, TO DELETE THEREFROM SUBPARAGRAPH (e) OF SUBSECTION F OF SECTION 3. THE VILLAGE COUNCIL OF CHANHASSEN ORDAINS: SECTION 1. Ordinance No. 23, adopted March 4, 1968, and entitled "The Cilanhassen Building Code" , is amended to delete therefrom Subparagraph (e) , Park and Recreation Fees, of Subsection F of Section 3. SECTION 2. I'his ordinance becomes effective from and after its passage and publication. Passed by the Council this �.�, day .of 1970. i" MAYOR- C. i.r Rid Published in - r� L. L!�/ on the c-� __ day of 197 ;� !. �-`• . 2[ ,+dam i -'... •t'i!•-Y; ..a':"Z,4 t 'j. Y <,'�• . r : r . •Nit � ;� ;�,; ...� . SIZy'�aMy�,.1'aib.� •��� i� ��:�a:"`�'�, r. i'.. •," ..•Lta APPENDIX B �a n- U N � ...i C-3 .+ W N �, � `_' L-i U .-� .--. � ^ Y =t' � ,� O w � CA.;� O n. v' -' n � r? '� r .J �, �,• u O Cry 73 f/) ^ • !j fJ r_ K n fj F� Pr1 D ^ a ^-" d a r C � cn � r. ' ,� ! Ci .f''i.. � ,n •'---• f)^" `, 7 .-• J •" n. � n � `C ^ rr'. .O � L� � �'' rj � i y r; � -� ,.,,� -•,� p ~ � � :�' _O ^� .`3. H C -� C r � t.. m •J-^-.. O• _' :: .y r. -: -' .« �• _K r0`. � .•+� n"C _ .: '.. ^' � J C � U .". _G' : .=�. C �1 � :t7 U '� p �, n J ✓, O .- �, 7 O a .� .--. 7! C n "' n C 7 p �• C] 'r n ..^.. CA •v ,� A .�'. 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M JCL O ... n:3 cca P �' � o01 ,0ff' c' A °1 vo~i �, :: � . •t✓17 CYO :3 n CAp 5' T •t C •.•• R.. r-r ,+ -r .. f] .?- [n O Y-+ i Q. ,.t. tj W' 2yD 33 !r i7 r.. �2i �� CD ryLy ' O `�0 6N O.s< <<C G1 n •7 'dF3 W G �'f! C `G r O J y 'C" O .O. .°-. fJ •.�. «�-•'�..(? ti n O ✓• �� .0-. O m R vOi Aa ^n K� S�> '� c••� 'J"' � � Q.. a � ram-, � `J'-1 � (�'�. O FE �J H Y C. O O p '*. C n 0 ' 'rj H r 0 O �. " O CD O to O r ,. ? (A.r0 Cwl (D.t O C vAi n h' O` •r {-�y O to a n L•' �v�i al, C n : n t c o q M z v p, N O N A ~' "' n '^ "`y > G ^. Y ��-'i ry• O' nn n [L'f rD0-1 in raj p o. '' o CST ci •`� T o - o y o-y r� n t , t3 t , Ci C? n Ta .--. cn rn•J A r n " � � � O ` O O" G' O v, n �•1 CL (� d N p � "" Y .... O" O' 0-4 - v JCL. _ c (D rD ��O o" ��c No T o� ` cnC 0� �n own �� a o me "� .cns �Op� tLJ CD < fD rfl 7' fD Y' a• h O. O O y L`... "-1 ¢..O-.� . rJ ^�i •n-t 1.. 7 a V � CD CD i .•Z lT] D' y cn C.]' to +4 �• o o ,t0i N t 0 co O care c� n � a. vi 3 p Gr4 CD O = y CO O J3 n � ��11 O O t7 ¢. . ,..a. Y O G a O O x� one ro CD w. -} C � O �. tj• Qa 'n O' y rY n n o o o as V N ' —4 N •F+ r~164 LAW OFFICES PETERSEN, TEWS 8 SQUIRES PROFESSIONAL ASSOCIATION 600 NORTHWESTERN NATIONAL BANK BUILDING _ ST. PAUL, MINNESOTA 55101 TELEPHONE (612) 29I-1611 May 2, 1980 Mr. Russell H. Larson Chanhassen City Attorney Larson & Mertz Attorneys at Law 1900 First National Bank Building Minneapolis, Minnesota 55402 Re: Apple Valley Red-E-Mix vs. City of Chanhassen Carver County File No. 16193 Our File No. 1701-02 Dear Mr. Larson: RODGER O. SOUIRES J. DIXON TEWS JOHN W. PETERSEN GERALD S.OUFFY LAURA 0. MANSKE WAYNE J. STUDER Enclosed herewith and served upon you personally, please find Petitioner's Trail Brief in the above captioned matter. Sincerely, f ,mot L Gerald S. Duffy GSD/db Enclosure N RUSSELL H. LARSON CRAIG M. MERTZ OF COUNSEL HARVEY E. SKAAR MARK C. MCCULLOUGH Chanhassen c/o Donald Box 147 . Chanhassen LARSON & MERTZ ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILDING MINNEAPOLIS, MINNESOTA 55402 March 27, 1980 City Council W. Ashworth MN 55317 Re: Apple Valley Red-E-Mix Zoning Litigation Dear Council Members: TELEPHONE (612) 335-9565 `,'his is to advise that the Carver County District Court trial of the action brought by Apple Valley Red-E-Mix against the City for issuance of a building permit for the erection of a cement, fly -ash silo has now been set for trial on Monday, April 21, 1980, at 9:00 a.m, at Chaska. As I have previously advised, I plan to call as City witnesses, in support of the denial of the permit, the following people: Mayor Walter Hobbs Councilman John Neveaux Planner Mark Koegler and a Metropolitan Council Planner. I shall be in touch with all of you well in advance of the 21st in order to review with you the proposed testimony I plan to elicit in the defense of this action. RHL:ner cc Mark Koegler Very truly yours, e44.0. RUSSELL H. LARSON Chanhassen City Attorney ` MAn 1900 RECEIVED �� a VILLAGE OF CHANHASSEN, MINN. (0 691r1, . _. nI Alb Ctp RUSSELL H. LARSON CRAIG M. MERTZ OF COUNSCL HARVEY E. EKAAR MARK C. MCCULLOUGH LARSON SC MERTZ ATTORNEYS AT LAW 1900 FIRST NATIONAL BANK BUILDING MINNEAPOLIS, MINNESOTA 55402 February 6, 1980 Mr. Roger Sames Assignment Clerk First Judicial District Dakota County Government Center Hastings, Minnesota 55033 Re: Apple Valley Red-E-Mix City of Chanhassen Carver County File No. Calendar No. 370 Dear Roger, VS. .16193 TELEPHONE (612) 335-9565 Once again I must request a continuance of the court trial of the above matter due'to the. absence from the state of one of the Chanhassen witnesses on the scheduled date of April 3, 1980. Accordingly, I request that the trial date be rescheduled to the week of April 14, 1980. Jerry Duffy, Red-E-Mix counsel, has no objection to this re -scheduling, and you may confirm this by calling him at 291-1611. Thank you for your anticipated cooperation. RHL•ner cc;�Don Ashworth Gerald S. Duffy Very truly yours, RUSSELL H. LARSON Chanhassen City Attorney FEB 1980 VILLA Vex) CHS OF, A ar M�NN.sft'. F ioo Lnxsox & MExTZ ATTORNEYS AT LAW IQOO FIRST NATIONAL BANK BUILDING RUSSELL H.LARSON MINNEAPOLIS, MINNESOTA 55402 CRAIG M. MERTZ OF COUNSEL February 4, 1980 HARVEY E. SKAAR MARK C. MCCULLOUGH Chanhassen City Council c/o Don Ashworth City Manager Box 147 Chanhassen MN 55317 Re: Apple Valley Red-E-Mix Zoning Litigation Dear Council Members: TELEPHONE (612) 335-9565 The court trial of the Apple Valley mandamus action to require the City to issue a building permit has now been rescheduled for trial on April 3, 1980 commencing at 9:00 A.M. This continuance from the earlier date of March 4 was made necessary due to the absence from the City of Councilman John Neveaux on the earlier date. John is one of our proposed witnesses in this action and,I feel, his testimony is essential to our defense in this case. As reported in our letter of December 12, 1979, we propose to call the following witnesses on behalf of the City: Walt Hobbs John Neveaux Mark Koegler Metro Council Planner Architect. I shall be in touch with our witnesses.in advance of the trial date in order to review the case with them. In the event the trial takes longer than one day, it is anticipated that the court would resume on Monday, April 7th, as Friday, April 4'th,is Good Friday. Vertru ors, RUSSELL H. LARSON Chanhassen City Attorney RHL:ner cc: Council Members Mark Koegler CARVER COUNTY JQd$e° COUNTY COURT' lion. John A. Fahey Ilan. Thom°. 1L llowe Courthouse $ullding Clerk Joyce A. VenEyll �M CHASKA, MINNESOTA 55318 NOTICE OF PRE-TRIAL CONFERENCE Craig Mort: To: Attorney at Law 1900 lat Nat'l Bank Bldg. Minneapolis, NN 55402 Bruce Goldstein Attorney at Law 600 143rthvestern Nat'l Bas";,: Bldg, 8t. Paul, MN 55101 Telephone CRIMINAL - TRAFFIC — 448-8435 ExL 310 PRODATE - SWICMLE — 448-8435 CIVIL Ext. 240 June 10, 1981 RE: City of Chanhassen -va- Apple Valley Red-e-mix, Ina, Criminal File #2956 A Pre -Trial Hearing will be held in the above case at 4:00 o'clock -i on July 16, 1981 , in one of the Court or Hearing Rooms in the Carver County Courthouse in Chaska, Minnesota, and counsel, the Defenda and any officers involved are directed to appear at that time -for the folic ing purposes: 1. To present any motions or Evidentiary or Rasmussen issues. 2. To obtain a trial date. (Will be heard the week of August 24, 1981 . ) 3. To present any plea negotiations another proposed dispositions of the matter. 4. To inform the Court of the names, addresses and occupations of the proposed witnesses who will be called for direct examination. N.B. PLEA NEGOTIATIONS WILL NOT BE ACCEPTED_ OR APPROVED AFTER THE DATE OF THE ABOVE HEARING. � -- If you do not have an attorney representing you, it is suggested that you immediately contact an attorney and advise him to be present with you at the Pre -Trial Hearing. It is a rule of the County Court that unsworn statements made by either side of the case at the Pre -Trial Hearing cannot be alluded to or used in any manner, for any purpose, in the actual trial of the matter. Your cooperation in helping us dispose of our jury calendar is respectfully requested. oun`y Court Judge --- JAF/kk //