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Correspondence - 4165 Shoreline Drive - 3/8/2022C H A R T E R E D February 24, 2022 Offices in 150 South Fifth Street Suite 700 Minneapolis Minneapolis, MN 55402 Saint Paul (612) 337-9300 telephone (612) 337-9310 fax St. Cloud www.kennedy-graven.com Affirmative Action. Equal Opportunity Employer John Holper Winthrop & Weinstine 225 South 61h Street Minneapolis, MN 55402 TROY J. GILCHRIST Attorney at Law Direct Dial (612) 337-9214 Email: lgilchrist@kennedy-graven.com Also: St. Cloud Office 501 W. Germain Street, Suite 304 St. Cloud, MN 56301 (320) 240-8200 VIA U.S. MAIL AND EMAIL Oholper@winthrop.com) Re: LMCD Use Classification of The Yacht Club, LLC in Spring Park Dear Mr. Holper: I am the attorney for the LMCD and I write on its behalf in response to your letter dated February 15, 2022 regarding the LMCD use classification of your client The Yacht Club, LLP ("Yacht Club"). Your letter indicates the Yacht Club is withdrawing its application to convert to a Qualified Commercial Marina and "intends to fully operate as a qualified yacht club as it has done for almost thirty years." You enclosed the renewal letter from the LMCD dated November 1, 2021 that refers to the facility as a Qualified Yacht Club to support the claimed reversion to the classification of a Qualified Yacht Club. However, the Yacht Club was previously classified as a Club Facility, not a Qualified Yacht Club, and so it is not possible to revert back to a classification the facility did not previously hold. Additionally, the application to convert to a Qualified Commercial Marina was approved months ago and so the Yacht Club cannot now claim to withdraw its application. The LMCD Code sets out different "classifications of use," which identifies "the category into which a particular use is classified for the purposes of determining the applicable regulations and licensing requirements." Section 1-3.01, subd. 14. The LMCD Code recognizes a range of use categories, including Club Facilities, Qualified Yacht Clubs, and Qualified Commercial Marianas. Over the decades you mentioned, the Yacht Club was classified and licensed as a Club Facility. In early 2021, Inland Development Partners submitted an application to the LMCD to convert from a Club Facility to a Qualified Commercial Marina. The LMCD Board held a hearing on the request and directed preparation of an order approving the requested conversion. The order was placed on the April 28, 2021 meeting agenda for approval, but Inland Development Partners withdrew its application before it was adopted. Shortly thereafter, the Yacht Club submitted a similar application seeking the same conversion from a Club Facility to LK110-4-781810.0 John Holper February 24, 2022 Page 2 of 2 a Qualified Commercial Marina. The LCMD Board heard the request and on August 11, 2021 issued an order approving the conversion to a Qualified Commercial Marina and approving a Commercial Multiple Dock license. A copy of the approved order is enclosed. Once an application is approved, the applicant does not have the option to withdraw the application months later. Such a claimed withdrawal has no legal effect and it certainly does not allow a claimed reversion to a classification the facility did not hold. The renewal notice sent to the Yacht Club in November incorrectly identifying the facility as a Qualified Yacht Club does not change its classification. It should have identified the facility as a Qualified Commercial Marina in accordance with the August 11, 2021 order. The renewal notice was part of a large annual mailing of renewal notices sent to all of the different types of licensed facilities around the lake. It was a simple mistake that does not override the Board's order. In fact, on February 8, 2022, prior to the date of your letter, the LMCD Executive Director sent your client an email noting the error in the renewal notice and that it should have recognized the facility as a Qualified Commercial Marina. I understand your client is interested in returning its facility to how it operated before the approved change in classification and to comply with the requirements of the previous license. The LMCD Board would need to approve such a change in the designated use of the facility. However, since I understand there have been no changes made to the facility's operations or its docks since the change in classification, I am willing to recommend the LMCD allow a written request from the Yacht Club to revert to a Club Facility to go directly to the LMCD Board for a decision without needing to work through a full application and hearing process. However, if the Yacht Club is interested in being classified as a Qualified Yacht Club, it would need to apply for the desired change in classification and go through the entire review and hearing process as it did last year when it converted to a Qualified Commercial Marina. It is up to the Yacht Club to decide how it would like to proceed, but the LMCD currently has the facility classified as a Qualified Commercial Marina and that classification will remain unless the LMCD Board approves either a reversion to a Club Facility or an application seeking a different classification. You are welcome to contact me if there are any questions. Sincerely, Troy J. Gilchrist cc: Vickie Schleuning, LMCD Executive Director (vcchleuning@lmcd.org) Jim Brimeyer, Spring Park Interim City Administrator (Brimeyer@ci.spring-park.mn.us) LK1104-781810.0 ITEM 7B ATTACHMENT 1 Type: Commercial Multiple Dock License/Qualified Commercial Marina Date: August 11, 2021 PID(s): 18-117-23-44-0022 Address: 4165 Shoreline Drive Spring Park, MN 55384 LAKE MINNETONKA CONSERVATION DISTRICT HENNEPIN COUNTY, MINNESOTA ROM Application of The Yacht Club, LLC, for a Commercial Multiple Dock License as a Qualified Commercial Marina for the Property located at 4165 Shoreline Drive in the City of Spring Park. FINDINGS OF FACT AND ORDER The Lake Minnetonka Conservation District ("LMCD") received an application from Leslie Oare of The Yacht Club, LLC ("Applicant") for a Commercial Multiple Dock License for its property at 4165 Shoreline Drive, Spring Park, MN 55384 ("Subject Property"). The Subject Property is currently licensed as a Club facility and the Applicant is seeking to be licensed as a Qualified Commercial Marina to allow it to rent slips to the general public. The Applicant seeks a Commercial Multiple Dock license for the existing dock structure under its new classification. The Board provided the Applicant and the general public an opportunity to be heard at the public hearing held on July 28, 2021, and now, based on its proceedings and the record of this matter, hereby makes the following Findings of Fact and Order: FINDINGS OF FACT a. The Subject Property is located in the City of Spring Park, on Spring Park Bay, which is part of Lake Minnetonka ("Lake"). b. The Subject Property has been licensed as a Club Facility and operated as a yacht club. c. The Applicant is seeking to operate it as a Qualified Commercial Marina to allow it to rent slips to the general public. The Applicant is seeking a Commercial Multiple Dock license for the existing dock structure. The dock structure is seasonal (not permanent) and the Applicant is not proposing to make any structural changes to it. d. A proposed buyer of the Subject Property previously applied for the same approvals, which the LMCD Board of Directors ("Board") considered at its April 14, 2021 meeting and, after conducting a hearing on the same, voted to direct the preparation of an order approving the request. However, the buyer withdrew the request before the April 28, 2021 meeting at which the Board was to formally act to approve the application. LK110-4-738268.v2 e. The Subject' Property has approximately 333 feet of 929.4 NGVD shoreline and, with the proposed continuance of 32 boat storage units (`BSUs"), the site has a density of 1:10.4. The Subject Property was previously issued a Special Density license, but the conversion to a Qualified Commercial Marina eliminates the need to continue the license. f. The dock structure complies with setback requirements. g. The Applicant is not proposing to change the existing dock length of approximately 119 feet. A Qualified Commercial Marina may extend a dock up to 200 feet, but this Order limits the length of the dock to 119 feet, which is consistent with how the dock has been installed in previous years. The dock may only be extended if the Applicant seeks, and the Board approves, a new Commercial Multiple Dock license. Furthermore, a proposed extension of the dock beyond 119 feet would require the Board to consider the additional criteria set out in Section 6-2.01, Subd. 4 of the LMCD Code of Ordinances ("Code") and other pertinent standards. h. The Applicant also stated that the proposal does not include installation of a fuel sales facility. i. Under Section 3-1.09 of the Code, the conversion from a Club use to a Qualified Commercial Marina use requires the issuance of a new license. j. As a Qualified Commercial Marina, the Applicant is eligible under Section 3-2.07, Subd. 1(b) of the Code to seek a Commercial Multiple Dock License in accordance with the procedures set out in Section 6-2.01 of the Code. k. The Applicant submitted a site plan, which is attached hereto as Exhibit A and is incorporated herein ("Site Plan"). 1. The Applicant is not proposing any transient slips for the dock. m. Because the dock structure installation has been the same for years, and because the difference in square footage between the previous approved layout and the existing layout appears to be approximately 66.5 square feet, there is no need to consider the need for an EAW. n. The only agency comment received by LMCD was from the City of Spring Park ("City"). The City recommended that the Applicant's request be denied based on its belief that a change in dock license will introduce a different user group to the Subject Property and a change of site operations to a commercial operation will have a negative impact on the tenants and operations of an adjoining office building and residential apartment complex. The City was also concerned that the new license designation would allow for expansion in the future. The City also raised concerns regarding whether the business, with the change in designation, would comply with the City's zoning regulations. The LMCD notes that a Club Facility and a Qualified Commercial Marina are both classified as commercial operations under the Code. Also, the 2019 amendment to Minnesota Statutes, section 103B.611, LK 110-4738268.v2 subdivision 3a (8) expressly prohibits the Board from considering land -based marina activities and so the Board cannot consider the City's zoning regulations. Issuance of this Order does not speak to whether the marina is compliant with the City's zoning regulations. The Applicant is responsible for obtaining any other permits or permissions that may be required and for complying with all applicable regulations. o. The LMCD received no comments from neighboring property owners or the public. p. The Board appreciates the input from the City, but finds there is nothing about the proposed use of the dock that would cause it to generate any more noise than any other commercial dock on the Lake and Hennepin County Sheriff's Office occupies the adjoining property. The City did not raise any objections when the exact same application was submitted by potential buyer in April. The LMCD notes that a Club Facility and a Qualified Commercial Marina are both classified as commercial operations under the Code. Also, the 2019 amendment to Minnesota Statutes, section 10313.611, subdivision 3a (8) expressly prohibits the Board from considering land -based marina activities and so the Board cannot consider the City's zoning regulations. Issuance of this Order does not speak to whether the marina is compliant with the City's zoning regulations. The Applicant is responsible for obtaining any other permits or permissions that may be required and for complying with all applicable regulations. q. Additional information regarding this matter is provided in the LMCD staff report related to this application dated July 28, 2021 and the presentation made thereon at the meeting (collectively, the "Staff Reports"). The Staff Reports are incorporated herein by reference, except that the approvals and conditions contained in this document shall be controlling to the extent there are any inconsistencies. r. The Board has considered the review criteria in Section 6-2.01, Subd. 3 and finds the existing dock structure continues to satisfy those criteria. s. The Board held a hearing on the Applicant's request on July 28, 2021. After hearing from the applicant and the public, and discussing the application, the Board adopted a motion to direct staff to prepare findings and an order approving the request for review and action at its August 11, 2021 meeting. ORDER ON THE BASIS OF THE FOREGOING AND THE RECORD OF THIS MATTER, IT IS HEREBY ORDERED BY THE BOARD AS FOLLOWS: 1. Approvals. The following approvals are hereby issued for the Subject Property for the 2021 boating season, subject to the conditions identified herein: (a) Change in Use. Allow the change of use of the Subject Property from a Club use to a Qualified Commercial Marina use. LK110-4-738268.v2 (b) Commercial Multiple Dock License. Issue a Commercial Multiple Dock license for 32 BSUs for overnight storage, with no transient slips, as shown on the Site Plan (Exhibit A-)- 2. Conditions. The approvals granted in this Order are subject to, and conditioned upon, compliance with the following: (a) The Applicant will provide access to the toilet and sanitation facilities disposal on the site for persons using the Commercial Multiple Dock facility. (b) The Commercial Multiple Dock license issued herein is unique to the Applicant. Upon transfer of ownership of the Subject Property to another individual or entity, such individual or entity will be required to apply for a new license and any other approvals from the Board that may be required. (c) Failure of the Applicant to comply with any relevant regulation of the LMCD or other regulatory body may result in revocation of these approvals. (d) Length overall of the watercraft stored at the subject facility shall be no longer than four feet beyond the boat storage unit. Length overall is defined as the horizontal measurement for the foremost to the outmost points of the watercraft including all equipment and attachments in their normal operating position. (e) Dock lighting must be sufficient and meet applicable codes be approved by LMCD staff. (f) Dock structures shall remain and be maintained in strict compliance with the Site Plan (Exhibit A) as approved. (g) The Subject Property must be maintained and operated in compliance with all other provisions of this Code including, but not limited to, noise standards, zoning requirements, and other applicable regulations, ordinances and state law. (h) The subject facility is not approved for a port of call, watercraft for hire may not berth at the subject facility, and rental watercraft businesses may not operate out of the subject facility. (i) Canopies as defined by LMCD Code are not permitted at the subject facility. Fabric coverings that do not meet the definition of a canopy are permitted. 3. Authorizations. The LMCD staff is hereby authorized and directed to issue the approved Commercial Multiple Dock License for the Subject Property and to take such other actions as may be needed to ensure compliance with this Order and the requirements of the Code. 4. Single Order. This order replaces the previous Multiple Dock License issued for the Club use and the previous Special Density license, both of which are hereby repealed. 4 LK110-4-738268.v2 BY ORDER OF THE BOARD OF DIRECTORS of the Lake Minnetonka Conservation District this 11`h day of August 2021. ATTEST: Dan Baasen, Secretary Gregg Thomas, Chair LK 110-4-738268.v2