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October 4, 2004 TOWN OF MAINE PLAN COMMISSION MAINE TOWN HALL
TOWN OF MAINE PLAN COMMISSION
MAINE TOWN HALL
October 4, 2004
7:30 p.m.
Chairman Utecht called the meeting to order at 7:30 p.m. Present were Jeff Krueger, Ed Bohte, Tom Ellias, Kurt Rowe, Mark Stubbe, Jeff Utech and Atty. Byll Hess.
Chairman Utecht reported that Deb Klopp was ill and the clerk would take the minutes. Deb will present the September 7, 2004 Plan Commission minutes at the next meeting.
Chairman Utecht explained that he had nothing new to report and that the workers were just winding up the fall work.
Zoning Administrator Jeff Krueger reported that he had issued 3 permits in September. Permits were issued to Edmond Mielczarek and Curt Deininger for storage sheds. James Gavin was issued a permit for a new home. Details are shown on the Zoning Administrator’s 10/04/2004 report.
Chairman Utecht stated that the first item of business was discussion and possible action on a residential business at 4700 Naugart Drive. Atty. Hess handed out a proposed Findings and Determination statement, which was based on the information included in the packet delivered to the Plan Commission members during the week before the meeting and the discussion at the September Plan Commission meeting. Kurt Rowe commended Atty. Hess on the nice job regarding the packet of information he had provided for the Plan Commission regarding the Wanke’s request for a residential business compliance statement. The packet included a legal opinion regarding the Wanke request for a residential businesses compliance statement, copies of email correspondence between Mr. Kareken and Mr. Hess, and a copy of an appeals court case dealing with a situation similar to Wanke’s situation.
Chairman Utecht asked if there were any questions from the Plan Commission, and the Plan Commission members took some time to re-review the information.
Ed Bohte stated that what the Wanke’s applied for does not comply with the Agriculture district zoning requirements for an AG business; that the proposed use is not an agricultural business and that there is no residence qualifying a household business.
Mark Stubbe quoted the following from the statement of intent for the AG district: ". . . this district is intended to protect farming from intrusion of incompatible uses, including urban development, and to sustain the economic base of agriculture as well as preserve its rural lifestyle." Mr. Stubbe stated: "that is what we’re trying to do out there." Mr. Stubbe then offered an analogy of a person who would want to build a multiple unit apartment complex in the AG district on his home property as a "residential business" so that the person could go to work without leaving home, and how that would be unfair to the surrounding property owners who expected agricultural and uses typically associated with single family residences in the AG district.
Jeff Utech questioned why a conditional use permit would not work and Attorney Hess explained that the Wanke’s have not brought a conditional use permit application to the Plan Commission but a request for a compliance statement regarding a residential business.
Mark Kareken spoke up and was reminded by Chairman Utecht that the meeting was that of the Plan Commission, and that he should not interrupt. Mr. Kareken continued, on behalf of the Wanke’s, and stated that the Plan Commission’s statements were self-serving.
Ed Bohte asked Mr. Kareken where the residence was for the Wanke’s residential business, noting that there is no residence on the lot from which the Wankes want to operate their business. Mr. Kareken stated that Dennis Wanke would convey the property to Michael Wanke if needed to make their request work. Mr. Kareken stated that a residence is not defined in the statute and asked where it says a residence is as the Plan Commission defines it. Mr. Kareken then accused Mr. Bohte of conducting a similar business out of his home. Mr. Bohte denied the accusation, and reminded Mr. Kareken that discussion about his activities was not on the agenda. Mr. Kareken continued to argue to Mr. Bohte.
Attorney Hess interrupted, asking the chairman if he would like him to read the proposed determination statement and the chairman agreed. Attorney Hess then read the proposed determination, a copy of which is attached.
Mr. Kareken again tried to interrupt, and Attorney Hess reminded him this was not an interrogation, and Chairman Utecht called for a motion on the proposed determination. Kurt Rowe made the motion.
Mr. Kareken asked what were the specific reasons for denying the Wanke’s request, noting that they have only 30 days to appeal and they need to understand the basis for the denial in order to explain the reason they are appealing. Attorney Hess explained the Wankes would receive a notice of appeal and that the information setting forth the basis for the Plan Commission’s decision would be included with the notice.
The motion by Kurt Rowe to adopt the determination as proposed was seconded by Mark Stubbe. Motion carried.
Mr. Wanke then asked for permission to ask a question. Chairman Utecht granted his request. Mr. Wanke asked what would happen if he wanted to start an agricultural business. Attorney Hess explained that if he wanted to start an agricultural business that is not a permitted use, Mr. Wanke could apply for a conditional use. Mr. Wanke asked if he filed a conditional use application for an automotive business if it would be shown on the map as a conditional use. Attorney Hess suggested that an automotive business in the AG district would not work.
Chairman Utecht stated that the next item of business was the discussion and possible action on the John Yunk rezoning petition.
Mr. Yunk was present, and Chairman Utecht asked him if he had come up with anything from the discussion at the September meeting. Mr. Yunk asked for clarification about his understanding that if he acquired enough property from his neighbor, Keith Rusch, to increase his lot from 2.7 to 3 acres, that he would more likely be able to have his property rezoned from R-1E to AG.
Chairman Utecht stated that he had found some zoning information regarding Mr. Yunk’s property in the St. John sub division file and gave Mr. Yunk a copy to review.
Attorney Hess stated that at the last meeting the suggestion was that if Mr. Yunk were to combine his two conforming lots he needed to purchase land to create a conforming 3 acre lot. Otherwise by combining the two existing lots Mr. Yunk would be creating one non-conforming lot, which poses other limitations such as not being able to increase the improvement value over 50% and if the buildings burned down they could not be rebuilt, things Attorney Hess suggested Mr. Yunk would not want to do. Attorney Hess also clarified that bringing the lot up to 3 acres did not suggest what the Plan Commission’s response would be on rezoning the property.
Chairman Utecht asked Mr. Yunk if he had spoken with his neighbor. Mr. Yunk introduced his neighbor, Keith Rusch, who was present. Mr. Rusch explained that he was there to find out what options were available to Mr. Yunk without purchasing additional property. Attorney Hess explained that the zoning ordinance would have to be changed for the entire township that would allow for a lot to be less than 3 acres so that everyone was treated the same. Mr. Rusch asked if there was potential for a conditional use permit or a special variance so that Mr. Yunk could remain in the current zoning district and still build a new building. Attorney Hess explained that Mr. Yunk’s proposal could not be allowed as a conditional use, and that he would need a variance. Attorney Hess then explained that use variances, like Mr. Yunk would need to apply for, were very limited by state law, and suggested that Mr. Yunk’s best option was to purchase more property and then petition to have it rezoned.
Mr. Rusch stated that it would be nice to have an answer from the Plan Commission rather than go thru the entire process of surveying and selling land if the petition to rezone would not go thru.
Chairman Utecht suggested that to be rezoned to AG, a person really needs to have an agricultural use rather than just wanting to put up a larger accessory building, because that does not really help the agriculture part of the district.
Mr. Rusch stated that they would like to get a better understanding of what might pass before they got the land surveyed and went thru the land selling process. Attorney Hess suggested that the Yunk’s could submit a petition to rezone his current lots and see if the Plan Commission would approve the petition, and then he would know what to do about buying more land. Attorney Hess reminded Mr. Yunk that even if his land were rezoned to AG, he would still have to have 3 acres.
Kurt Rowe stated that the adjoining land across the road was AG therefore he didn’t know if there was any basis to stop the rezoning. Attorney Hess stated that there is not right to have property rezoned, that there has to be a purpose to rezone the land to AG, and that the Plan Commission would need to decide if the petition meets the requirements of the land use plan to rezone the property. Attorney Hess suggested if the only purpose is to build a large accessory building and the use is not AG related then it would not be right to rezone the property.
Mr. Rowe asked Mr. Yunk what his plan was. Mr. Yunk was also asked the size of the intended building. Mr. Yunk stated that the size would be 60 ft. by 70 ft. building and would be used to store personal property, not agricultural use. Mr. Yunk said he would be willing to house a horse in the shed if that would make it qualify.
Mark Stubbe asked Mr. Yunk if the horses on 60th Avenue belonged to him and Mr. Yunk stated that they owned one of the horses. Mr. Stubbe questioned if shelter for horses and the storage of the hay needed for horses would allow for the Yunk’s to build that building.
Attorney Hess stated that the Yunk’s could have a stable on their property under its current zoning, but that the stable could not be more than 60% the size of their home. Based on the size of the Yunk lots, the example of a 25 ft. x 20 ft. stable building for up to 2 horses and hay storage in RR - Rural Residential was given. Mr. Yunk stated that he already had one accessory building on his lot.
Mr. Yunk asked about the property across 60th Avenue that was rezoned to AG. Attorney Hess explained that the combination of the two lots, one of which was zoned AG and the other which was not zoned AG at the time the new zoning ordinance was adopted because it was a substandard size lot. Because the second lot was a substandard size lot surrounded by AG, when the 2 lots were combined they were combined into AG.
After more discussion on options for the Yunk’s, the precedence that this would set for future buildings, setbacks, and other issues, it was determined that buildings that are not intended to be used for agriculture would not be a proper basis for rezoning property to AG. Therefore, the consensus of the Plan Commission was that it would not be proper to rezone Mr. Yunk’s property to AG just to allow for a large accessory building.
Chairman Utecht stated that the next item of business was discussion and possible action on a catering business at 4305 Falcon Drive. Chairman Utecht stated that he had driven by the property and did not know how another building could be built on that lot or how a business could be run from that property.
Kurt Rowe stated that one of the employees did not live in the residence, that they were adding a kitchen addition for a special use, that they were inviting people in to taste food and none of the uses fit into the profile for a home business.
Jean Jones was present and stated that it was Mr. Solberg’s opinion that by attaching the kitchen it does meet the home occupied residential business requirements.
Attorney Hess explained that he had spoken to Mr. Solberg and that Mr. Solberg’s concerns were that Ms. Jones and Ms. Nass could not produce food in a home kitchen because it would not meet state requirements. Mr. Solberg had stated that a separate facility was needed which the state calls a home business and would not need state approval. Attorney Hess explained that the state classification does not set the standard for the classification as a home occupation under Town ordinances. Attorney Hess explained to Ms. Jones and Ms. Nass that they still needed to qualify under the Town’s zoning ordinance and needed county approval for producing food for sale. Attorney Hess explained the Town ordinance regarding a home occupation, including that no one can be employed that is not a resident of that home. A home occupation is a home office for someone conducting music lessons out of their home or the like. The Town has a residential business provision, which is a household occupation carried on by one resident of the house and one outside person, but this does not qualify as a residential business. A home occupation or residential business in the AG district would need to be a small business operated out of the home, and not a full scale business, or an agriculture related business subject to conditional use review. The type of business Ms. Jones and Ms. Nass are proposing could not be allowed even as a conditional use for this existing AG property.
Ms. Jones asked what their options were and the Plan Commission stated that a catering business would not be allowed in that zoning district so they may need to look for property in the business park.
Chairman Utecht stated that the next meeting would be Monday, November 1, 2004 at 7:30 p.m.
Kurt Rowe made a motion to adjourn at 8:35 p.m., seconded by Mark Stubbe. Motion carried.
Respectfully submitted,
Betty Hoenisch, Clerk
Last modified: 03/22/07.
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