Attorneys Clash Over Udc Interpretation

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The council chambers resembled a courtroom Thursday as attorneys duked it out on the definition, semantics and nuances of the town's Unified Development Code and what owners can and cannot do on commercial property.

The issue began when homeowner Doug Meadows complained that the noise and fumes of refrigerated tractor trailers, idling at all hours of the night next door, deprived him of sleep. Meadows claims his neighbors, Jim and Vicki Edmonds, are violating their C-3 zoning by allowing the trucks to park on their property overnight.

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An aerial view shows the proximity of the Meadow's residence, the white trailer in the foreground, to the Edmonds' property in the background. The clash of residential and commercial uses resulted in the two parties and their attorneys going before the board of adjustments.

Over the years, West Aero Drive has evolved into a primarily commercial district, but residential lots remain, creating what is called a mixed-use area.

The Edmonds, who own an auto repair business, did not see renting a portion of their property to Shamrock and Sysco as a violation of the UDC and were pursuing a business license to continue operating when the issue was brought forth.

Although the town planning specialist, Gary Butkus, initially determined that what the Edmonds were doing qualified as transferring of loads and was only permitted on industrially zoned land, zoning administrator Ray Erlandsen found that the Edmonds' operation more closely resembled outside storage of equipment which is permitted in C-3 zoning. The Board of Adjustments would decide whether Erlandsen was correct in his interpretation of the situation and the UDC.

The hearing

The afternoon of July 3, the Board of Adjustments heard arguments from the Meadows' and the Edmonds' attorneys in what could be a precedent-setting case for future conflicts stemming from mixed-use zoning.

Representing the Meadows was attorney Mike Harper, who had an elaborate array of documentation and visual aids for the board, including a video tape to give board members a taste of what the Meadows hear in the early hours of the morning.

Although the television was at the very front of council chambers and faced the board, the sound of the trucks arriving and leaving the property was clearly audible. According to Harper, the noise, at times, reached 70 decibels (db) inside the Meadows' home.

Butkus took several decibel measurements during the day and at night while refrigerated trucks were running, including one right outside the Meadows' home, which measured less than 50 decibels. According to Butkus' readings, automotive traffic passing on Aero Drive registered 70 decibels.

Measurements Butkus took mid-morning in front of town hall on the Beeline Highway measured 70-80 decibels.

Board member John Nelson queried Erlandsen on the issue of storage.

"Storage, it seems to me, means that something is in a state of inactivity," Nelson said. "The storage of a truck would seem that it's just sitting there."

Harper agreed that the word storage did not accurately characterize the Edmonds' additional business.

"No one is complaining about his automotive repair shop. The problem is that he has started a new business that involves the storage and transfer of refrigerated trailers that are extremely noisy and disturbing," Harper said. "Sysco and Shamrock are in the business of food distribution. What we have is around-the-clock movement --not inactivity. This is certainly not storage. This property is being used as a transfer station, a distribution hub. This an industrial use and is not permitted by the UDC."

Harper also introduced the original ordinance that allowed the Edmonds to re-zone their R-3 property to C-3 for their auto repair business in 1997.

"For the prior zoning change, the unpaved area of the property was to remain natural. (Edmonds) now intends to pave it, which is a direct violation of a condition of Ordinance No. 516," Harper said. "The ordinance has a reversionary clause."

A reversionary clause specifies that if any of the conditions included in an approved ordinance are not met, the zoning reverts to its original designation. This would mean that the Edmonds' property would revert to residential from commercial.

According to Deputy Town Attorney Tim Wright, reversionary clauses used to be automatic, but this is not the case now.

"It used to be automatic, but now the council must take action for a reversion," Wright said.

Harper continued describing the impact of the Edmonds' business on the Meadows, reading a portion of a log that Meadows kept to chronicle the time that trucks came and went as well as decibel meter readings.

"What the Edmonds are doing is an industrial use and not storage as Mr. Erlandsen says," Harper said. "We disagree with Mr. Erlandsen's interpretation of the UDC."

The other side

Attorney Tim Grier represented the Edmonds.

"The question before you is whether Mr. Erlandsen was correct in his interpretation of the UDC," Grier said. "We believe he is correct."

"Mr. Harper has hung his hat on whether or not this is a distribution center. It is nothing like a distribution center," Grier said. "Shamrock and Sysco are not there to distribute, they are there to be repaired. (The Edmonds) fix the semis that carry perishable goods. It is an auto repair business."

Grier's statement prompted questions from the board.

"You say every vehicle that pulls in there has been repaired?" Nelson asked, looking at Meadow's log. "For instance, on April 8 at 3:40 a.m., two tractors trailers came in -- one left at 4:40 a.m. and one at 4:45 a.m. -- so these vehicles were repaired in an hour?"

Grier said he could not address questions about Meadows' log but invited Jim Edmonds to answer the question.

Edmonds said that while some of the trucks were being repaired, some were renting space to park overnight.

Grier later apologized for the confusion and clarified to the board that the Edmonds have an auto repair business but also rent space to trucks for a fee and did not intend to imply that every truck on the property was there to be repaired. Grier reiterated that the act of renting space to trucks, as Erlandsen determined, was compatible with the UDC.

"This is an accepted use of C-3 property," Grier said.

Several local business owners came to the hearing in support of Edmonds and concerned about their C-3 property rights. Some described how the town encouraged them to locate their businesses in that particular part of town to avoid the kind of restrictions that Edmonds was now facing.

The decision

After several comments from the public including C-3 property owners, board member Ken Wagner made a motion to grant the Meadows' appeal and require the Edmonds to get a conditional-use permit (CUP) to continue his secondary business.

Board Chairman Andy Johnson appeared to be the lone dissenting voice.

"I don't see that C-3 limits this activity," Johnson said. "We shouldn't decide this on how we feel. If we don't live by the lines that are drawn, we'll be here many more times."

Johnson said he could find nothing in the UDC stating that what Edmonds was doing was in violation of the zoning codes.

The closest definition Erlandsen could find to categorize the Edmonds' business, storage, did not satisfy the four other members of the board. Yet, they did not reference verbiage from the UDC explicitly prohibiting Edmonds' operation.

After a brief discussion, the board granted the Meadows' appeal by a vote of 4-1.

For Edmonds to continue allowing commercial trucks to rent space on his property, he must now apply for a CUP, which the town previously determined he did not need.

Following the hearing, a letter from the town, reversing their position, stated, "you are not permitted to rent, lease, or allow the parking, storage, or transfer of trucks or trailers on the property without a conditional-use permit."

The Aero Drive vicinity, as one board member described, is a "mishmash" of uses. Two low-income housing developments are planned in the area and the town council has insisted that prospective tenants be told that they will live among commercial properties and that noise may be a factor.

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