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Afton settlement agreement hits roadblock

The Afton City Council has to wait a little longer before its lawsuit with FOC, LLC and Atomic Properties fades from the horizon.

At the June 1 meeting of the Afton Planning Commission, commissioners reviewed ordinances that had to be approved in order for the settlement agreement with FOC, LLC and Atomic Properties to go into effect.

Ultimately, the planning commission decided to recommend denial of the amendments to the city council.

During the discussion, commissioner Jim Fox excused himself since he is a party to the lawsuit.

The lawsuit was brought upon the city in 2007 after the plaintiffs had purchased 69 acres of land that had been rezoned as industrial in the city's comprehensive plan, but then the city adopted ordinance amendments establishing regulations on the property.

The plaintiffs then initiated a lawsuit against the city, stating that the ordinances were in conflict with the city's comprehensive plan, they were arbitrary and capricious, and have effectuated a regulatory taking of their property.

The city council approved the settlement agreement with FOC, LLC and Atomic Properties at a special meeting on April 14.

In the settlement agreement that was presented to the Afton City Council, ordinance amendments to the ordinances in question were proposed that would remedy the regulations on the property, as well as require the city to pay the plaintiffs $200,000.

The planning commission first discussed the proposed ordinance amendments at a special meeting on May 18, but sent them back for further revisions.

One of the concerns that the planning commission raised during the meeting was the lack of "accessory use definitions."

During the June meeting, Afton's attorney in these lawsuits, George Hoff of Hoff, Barry and Kozar, P.A, was on hand to help answer questions.

Hoff informed the planning commission that their concerns over accessory use definitions were addressed in additional ordinances that were before them for reference, not action. The new ordinances will go before the planning commission at a future meeting since a public hearing for these ordinances was not advertised.

Because of these additional proposed ordinances, if the council should approve the other ordinance amendments, the settlement agreement would not go into effect until the definitions are approved.

"Since these uses aren't defined, it's difficult to take action," planning commission chairwoman Barbara Ronningen said. "We're supposed to say 'It's OK to do that' and talk about the definitions later -- it seems a little irregular to me."

The rest of the commissioners shared Ronningen's concerns and hesitation to approve anything unless they are properly defined.

"I feel blind," commissioner Anne Knutson said. "It's not in front of us."

In addition to concerns over the definitions, the commission also voiced concerns over some of the proposed amendments, such as the proposed 65 percent impervious surface area and proposed retail uses.

"We don't allow retail uses in the industrial zone," Ronningen said.

Commissioner Scott Patten expressed his concerns with the ordinances being inconsistent with other ordinances further down the line.

"I'm worried that everything will get out of alignment," he said. "I want to know that we can put everything back together again."

Commissioner Richard Bend shared some of the same concerns as his fellow commissioners, but he felt that since the council has already approved the settlement agreement it was in their best interest to be helpful to the council in making the decision.

"I see this as a political matter," he said.

In the end, the commission voted unanimously to recommend denial even though they agreed that they could accept a lot of the changes, but not everything. They will recommend to the council to look carefully at the issues of the accessory use definitions and waterfront usages.

The city council will review the ordinance amendments for approval at their June meeting.

Amber Kispert-Smith

Amber Kispert-Smith has been the schools and Afton reporter at the Woodbury Bulletin since 2008. She holds a bachelor’s degree in journalism from the University of Minnesota. She previously worked as a reporter for Press Publications in White Bear Lake.

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