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033197 CC SP Min . . . CITY OF SHOREWOOD CITY COUNCIL SPECIAL MEETING MONDAY, MARCH 31, 1997 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:30 P.M. MINUTES 1. CONVENE CITY COUNCIL SPECIAL MEETING Mayor Dahlberg called the meeting to order at 7 :35 p.m. A. Roll Call Present: Mayor Dahlberg; Councilmembers Stover, O'Neill and Garfunkel; Administrator Hurm; City Attorney John Dean. Absent: Councilmember McCarty Review Agenda B. 2. HISTORICAL PERSPECTIVE OF CABALKA REQUEST AND PROCEDURAL REVIEW Mr. Cabalka stated he did not receive notice of this meeting until March 29th. Mayor Dahlberg noted Mr. Kelly, the Cabalkas' attorney had been present at the prior meetings when this date had been established and inquired whether the Cabalkas felt prepared to proceed without the presence of their attorney. Mr. Cabalka stated he was prepared to proceed. Planning Director Nielsen reviewed the history surrounding the Cabalkas' request. A complaint was made to the City alleging the dockage on the Scott Cabalka property had been increased. Upon a review of the site, staff reviewed a letter from Mr. Cabalka expressing his desire to build a dock on this smaller, unbuildable lot as well as a 1981 survey which did not reflect a dock on the parcel in question. Based on this information, the City sent a Zoning Violation Notice to the Cabalkas requesting the dock be removed since it was in violation of City code. The Cabalkas appealed that notice and provided information to the contrary to the City. Planning Commission public hearings were held at which time the Cabalkas presented evidence the dock existed. There were also letters from area residents to the contrary. The Planning Commission ultimately recommended denial of the Cabalkas' request. The Council then directed staff to review aerial photographs and report back. At that time staff was directed to prepare a Findings of Fact denying the appeal. Subsequently, the current Council reviewed the matter in January, 1997 at which time the matter was tabled for further review at a study session. Mayor Dahlberg asked if the Findings were based on aerial photography or other evidence. Nielsen read the Findings of Fact which were drafted at that time denying the appeal. Mayor Dahlberg clarified the ordinance would require the Council to find the dock was in existence after 1965 and asked what information was uncovered by staff. Nielsen note the Council has evidence on both sides of the issue. He stated a review of aerial photos at the University of Minnesota revealed a dock first appears in photos taken in April of 1985. Mayor Dahlberg felt the aerial photography was on a scale which makes it difficult to discern anything. CITY COUNCIL SPECIAL MEETING MARCH 31, 1997 - PAGE 2 . Mayor Dahlberg inquired of Attorney Dean if the Council is to determine whether or not the Cabalkas were in violation of an ordinance. Attorney Dean stated the specific issue before the Council will be determining whether or not the dock was in existence and in continuous use since January of 1965. Mayor Dahlberg asked where the burden of proof would lie in this situation. Attorney Dean explained if the Council decides to go forward with an enforcement action, the Court would expect the City to establish facts giving rise to the claim the dock is not entitled to nonconforming use status. (Agenda Item 5 was discussed at this time) 3. REVIEW OF ISSUES AND FACTUAL BACKGROUND Mayor Dahlberg noted none of the original complaints were made relative to the dock not being there, but rather that the dock had changed shape. It was City staff who had determined the dock had not been in existence. Mayor Dahlberg asked for an explanation of the process followed once the City receives a complaint. Nielsen explained once a complaint is received, the City investigates the complaint to determine the circumstances of the case. Initially staff looked to see if there was anything which would show what the dock had looked like before. This investigation revealed a survey which suggested the dock had not existed as of 1981. There was a letter along with the survey in which Mr. Cabalka explained he intended to build a dock in this area. Based on that information, staff sent the Zoning Violation Notice. Councilmember Garfunkel requested an explanation of the grandfather clause. Attorney Dean explained it is contingent on continuous use and can be transferred from property owner to property owner so that a change in ownership would not sever the nonconforming use status. (At this time, Agenda Item 5 was revisited.) . Councilmember Stover felt the Council was overlooking the provision that the dock must have remained in continuous use since 1965. If the dock was not in continuous use since that date, the grandfathering provision would have been violated. Councilmember Garfunkel asked when the grandfather clause would cease and if it would be contingent on the Cabalkas retaining the property. Attorney Dean stated the dock must be in continuous use which could include many changes in ownership. Councilmember O'Neill inquired of the Cabalkas when their property had been sold. Mr. Cabalka stated on July 3, 1988, the third parcel of property containing the homestead was sold to Mr. Hillius. Mr. Cabalka referenced a survey which he has on file. He stated in approximately 1981, the Planning Commission was contacted and Mr. Cabalka inquired whether another home could be built on the property as a retirement home. At that time he stated he was interested in building a home with a dock. On June 6, 1981, the Planning Commission met with Mr. Cabalka at the site. At that time a survey was obtained. Mr. Cabalka stated a dock was indicated on the survey. Mr. Cabalka stated a dock has always been in existence. He stated the Planning Commission in 1981 was responsible for the survey which reflects a dock. He stated members of the Commission were at the property to view the site and the minutes reflect his intention to build a dock. . CITY COUNCIL SPECIAL MEETING MARCH 31, 1997 - PAGE 3 . Councilmember Stover recalled meeting at the site on June 6, 1981 relative to Mr. Cabalka's request. She stated the minutes did not reflect the existence of the dock because there was not a dock there the day of the visit. The discussion centered around where the dock might be located if the building were to occur. Mr. Cabalka stated the dock was not visible because it was knocked down due to problems with poachers. He further noted the existing dock is not visible from the road due to weed cover. Councilmember Stover stated there were discussions relative to moving the lot line as well as discussions where a second dock would be located. The only dock at that time was located at the Cabalkas' primary residence. Councilmember O'Neill stated there is another issue to be considered which is that the original complaint raises the issue that the dock, if it were conforming, cannot change shape. Mayor Dahlberg clarified the single issue before the Council is to decide whether or not the dock was in place continuously or not. Once that is determined, the issue of the change in shape could be addressed. Councilmember O'Neill questioned when the Cabalkas sold the third piece of property and the house. Mr. Cabalka stated the Purchase Agreement is dated July 3, 1985. Mr. Cabalka maintained a dock has always been in existence in varying forms. Attorney Dean inquired as to the ordinance relative to nonconforming uses. Nielsen explained the time requirement for nonconforming continuous use is 90 days, but with respect to docks, the time requirement would be season to season. . Councilmember O'Neill stated the existence of the dock was not the original complaint and he inquired why the existence of the dock comes into question as opposed to the initial complaint. Nielsen explained when staff investigated the complaint, the first consideration was whether the dock had the right to be there and, if so, had it been expanded. Nielsen had determined between the survey and the letter from the Cabalkas that as of 1981 the dock did not exist. 4. PRESENTATIONS FROM MEMBERS OF THE PUBLIC Mayor Dahlberg noted there are a number of letters on file for and against the request of the Cabalkas. Bruce Benson, 5820 Christmas Lake Road, stated in 1981 as a member of the Planning Commission he abstained from consideration of this matter and as a member of the City Council, he also abstained since he is a neighbor of the Cabalkas. Mr. Benson stated he was born and raised in the neighborhood and remains there today. He explained since 1984 when Mr. Cabalka put in the dock, he has remained silent. He did not feel it was appropriate for him, as a member of the Planning Commission, to be a complainant. Mr. Benson noted he did not have any discussions with the other Councilmembers regarding this issue. Mr. Benson explained he is not in favor of nonconforming docks on nonconforming and unbuildable lots due to the deteriorating effect on property values as a resident of that community. Mr. Benson pointed out Mr. Cabalka does not live in the community, does not vote in the community and pays a minimal amount of taxes. He did not feel Mr. Cabalka rights should come before his own as a resident of the community. . CITY COUNCIL SPECIAL MEETING MARCH 31, 1997 - PAGE 4 . Mr. Benson stated this has become a very contentious matter and that comments have been made through various letters. Mr. Benson stated the dock appeared in 1985 at the time Mr. Cabalka moved out of the home on Christmas Lake Road. Mr. Benson stated he had shared in the ownership of the weed cutter and would often times obtain it from the Mr. Cabalka's dock which was the dock located on the lot containing Mr. Cabalka's home which is now the Kuester property. Mr. Benson explained that over the years other similar requests have been denied. His recollection of the Planning Commission's consideration of the dock was that the Commission recommended denial. The Council at that time chose to not move forward because of a threatened lawsuit. Mr. Benson feels his property rights are weakened and he is suffering a loss in his property value by allowing this nonconforming use to continue. He requested the Council recognize this as protecting the property values and property rights of the people who are adjacent to this property. Mayor Dahlberg felt this issue raises social policy issues. He stated the focus of the Council must center on whether or not the dock was in continuous use. Councilmember Stover commented there are small lots on Lake Minnetonka which have increased in value due to the addition of a dock. There are also unbuildable lots on Lake Minnetonka which have in the past been denied the right to put a dock on an unbuildable piece of land. If the original complaint was that the dock and existing dock on an unbuildable lot enlarged, the City would be irresponsible in not investigating it further. Mr. Benson stated he is asserting his rights as a property owner and did not feel he was raising a social issue. He noted there is an ordinance in effect which controls the issuance of nonconforming docks. . Mike Pierro, 5880 Christmas Lake Road, inquired who actually owns the property. Mayor Dahlberg noted the deedholder is Scott Cabalka. Mr. Cabalka stated three children own it with the oldest of the three holding the deed. With respect to the terms "continuous use" and "useable," Mr. Pierro asked for an explanation of these terms. He also asked about the reference made to the dock being under water. Attorney Dean stated continuous use would depend on whether the dock is used to the extent a dock would normally be expected to be used. Mr. Pierro stated he was asked to fix the weed cutter in the mid 70's. He did not know if the dock had been in existence in the 50's and 60's, however, he recalled there was not a useable dock in existence prior to the sale of the main property. He was unaware of whether there was one under the water or not. Mr. Pierro did not feel a wood dock would last that length of time without repair. He was opposed to nonresidential use of a dock in this area. Mr. Cabalka stated in 1981 he did add a dock made of aluminum pipe. This dock was built beside the original dock which remains in place. He recalled in 1981 when the Council was considering the issue of changing his property line and his request to build on the smaller lot, Councilmember Tad Shaw assured the other councilmembers three separate times the subject dock would be grandfathered. Mayor Dahlberg noted there appears to be substantial evidence the dock was in existence in the 1950's and then from 1984 on. It is unclear in the late 60's and throughout the 70's whether a dock was in place. Mr. Cabalka stated in approximately 1974 Mr. Chaney utilized the dock. In addition, Mr. Cabalka stated he held science club parties at the dock. . CITY COUNCIL SPECIAL MEETING MARCH 31, 1997 - PAGE 5 . Mr. Cabalka stated he is on the site daily with the exception of the month of February. He stated he and his wife are the principle users of the property which they have utilized in a quiet manner for ~pproximately 40 years. Mr. Cabalka felt that he has been harassed on this issue time and agam. 5. DISCUSSION OF BURDEN OF PROOF Mayor Dahlberg stated his understanding the Council is sitting in judgment of a Finding of Fact and that it is the responsibility of the Council to determine whether or not the dock was in existence in conformance with the grandfather clause. If it was not, then the dock would be determined to be in violation of the ordinance. At that point, it would be the City's burden to prove that the dock was not there. Attorney Dean pointed out if there is a violation, it would be that there is a dock existing on a parcel of land which does not contain a primary structure. Councilmember O'Neill stated there would be other issues as well. (Agenda Item 3 was considered at this time.) Councilmember O'Neill inquired relative to the burden of proof at this point as well as if a Court action were to ensue. . Attorney Dean stated the Council is seeking to make Findings relative to the status of the dock. To make those determinations, the Council needs information supplied from any source wishing to supply that information. The Council then reviews the information and makes a decision. If the obligation is to prove the dock was there, the Council must be satisfied by looking at all of the evidence that the dock was there. Attorney Dean urged the Council to consider the information and evidence before them as well as the public testimony in order to reach a decision. He explained there is no case law in Minnesota relative to who carries the burden in this situation. (Agenda Item 3 was revisited at this time.) 6. COUNCIL DISCUSSION ON HOW TO PROCEED Councilmember O'Neill was disturbed he had not seen pictures which reflect the two docks which were existing prior to the sale of the house. He felt with recreational activities which occur on a dock, there would be pictures available depicting the two docks. Mayor Dahlberg stated one issue to consider would be how in principle the Cabalkas could prove the dock had been in continuous use since 1965. The ordinance is lacking a process which would require evidence be placed on file on a yearly basis. Attorney Dean pointed out a four-fifths vote would be necessary to allow the dock to remain in existence. Councilmember O'Neill inquired as to the actions of the previous Council on this matter. Councilmember Stover explained the Council had directed staff to prepare a Findings of Fact denying the appeal. At the time of the vote, Mr. Kelly, the Cabalka's attorney, requested the matter be tabled until June which would allow the Cabalkas sufficient time to have testing completed which would indicate how long the dock had been in existence. Attorney Dean suggested the Council may wish to direct staff to prepare Findings approving Mr. Cabalka's request so that at a subsequent meeting the Council would have both sets of Findings available to consider. . . . . .. .. CITY COUNCIL SPECIAL MEETING MARCH 31, 1997 - PAGE 6 Councilmember Stover inquired what would happen to the two sets of Findings of Fact in the event of a court action. Attorney Dean stated the approved Findings of Fact would become evidence of the Council's action and the other set of Findings of Fact rejected. Administrator Hurm pointed out the Findings of Fact would be the same for both sides of the issue, however, the Conclusion is the portion which would be different. Mayor Dahlberg moved directing staff to prepare a Findings of Fact approving the request of James Cabalka, 58XX Christmas Lake Road. Motion failed for lack of a second. Councilmember Stover suggested that assuming the resolution does not pass, at that time, staff could be directed to prepare the alternate Findings of Fact. She .noted Mr. Kelly had requested the matter be tabled until June. Mr. Cabalka stated this was offered as an alternative to the Council who wanted additional information. Mayor Dahlberg felt the matter should move along and a final decision made. Mayor Dahlberg moved, O'Neill seconded directing staff to prepare a Findings of Fact approving the request of James Cabalka, 58XX Christmas Lake Road. Motion passed 311. (Councilmember Stover was the dissenting vote.) It was the consensus of the Council to move forward on this matter and requested it be added to the next agenda. Councilmember Garfunkel stated he felt all of the information had been presented and did not feel there to be a need for further testimony on this matter. Mr. Cabalka did not feel there was further information to be presented. Attorney Dean recommended allowing Attorney Kelly a period of time in which to submit a final letter regarding this matter. 7. ADJOURNMENT Garfunkel moved, O'Neill seconded to adjourn the City Council Special Meeting to a closed Executive Session at 10:06 p.m. Motion passed 4/0. RESPECTFULLY SUBMITTED, Cheryl WalIat, Recording Secretary TimeSaver Off Site Secretarial ATTEST: JA V VVvr? , CITY ADMINISTRATOR