DL Zorbaz, city try to reach agreement
In 2010, the city of Detroit Lakes granted owner Tom Hanson a variance for an expansion project at Zorbaz.
Now the city says the addition project went beyond what was approved, attorneys are involved, and the city wants Hanson to admit he went above and beyond the variance -- and to tear out the extra addition.
Hanson has retained Detroit Lakes attorney Patrick Kenney to negotiate with City Attorney Charlie Ramstad on how to remedy the issue.
Reached by phone Friday morning, Kenney declined to comment on the issue because he said he wasn't present at the meeting, didn't know what Ramstad had said and therefore couldn't comment or answer questions regarding the issue.
Hanson was out of the state, but his son, Cole Hanson, said he wasn't comfortable making a statement Friday because he hadn't seen anything in writing from the attorney yet.
"What we've done so far is try to enforce our ordinance," said City Administrator Bob Louiseau.
The city has also made Hanson aware that if Zorbaz uses the seating area before the issue is resolved, it will file a cease and desist order.
In the summer of 2010, after months of debate and compromise, the city granted Hanson a variance to exceed impervious surface requirements for his lot up to 62.5 percent to build an enclosed addition. The limit for businesses is 45 percent.
In return, since the majority of his already scarce parking was being taken up with the new addition, Hanson had to pay about $90,000 for the parking lot that was constructed in Peoples Park and the new skating rink, which is located near Zorbaz and could be used for the restaurant and bar's parking as well.
When the approved addition was completed, city officials found there was also an outdoor seating area added to the west.
That's where the debate starts: While most would call it a deck, which doesn't require a permit, Ramstad said the city considers it an "exterior seating platform."
The question is, did Zorbaz overstep its variance permit?
The city says yes. Hanson says no.
While the attorneys have been sending proposals back and forth to remedy the deck issue, the city says Hanson has to admit to the violation, pay a fine, take out the existing deck (which the city says isn't built to code anyway) and get a permit to actually put in a seating area -- all without exceeding the 62.5 percent impervious surface limit approved in the variance.
Ramstad said Hanson agreed through his attorney to remove the existing deck, apply for a permit for a pervious paver system (designed and approved by an engineer) and then install a new exterior seating platform with a new permit.
He would not, however, agree to pay the $3,000 fine proposed by the city, arguing that the cost of ripping out the existing deck and building a new one was costly enough and exceeded the fine anyway.
He also said that if the council would not approve the new pervious paver system and new deck, he would not admit to a violation, which is a misdemeanor charge.
Ramstad said the city could prosecute Hanson for the misdemeanor charge, which carries a maximum $1,000 fine and 90 days in jail, but he said, "it's unlikely to end up with any substantive penalty" because no judge would give a maximum sentence for this type of violation.
Ramstad said the city could also impose a $10,000 a day fine for the violation until the situation is remedied.
"It's a much more significant process to impose those penalties," he said.
Though not all of the cost for extra city staff time spent on the issue will be covered, Ramstad said some of the expense can be recouped through permit fees.
Louiseau said that the city wants some acknowledgement from the owner that there is a permitting process and it was violated "rather than 'let's see what happens.' We gave a permit for X, and X and Y appeared."
The city said since the permit was issued, the small T-shirt shack has been built out front as well, which isn't in violation because it isn't on a foundation.
But the city wants the impervious surface percentage calculated using the existing layout, not data from the 2010 site plan, because it may not be aware of other possible changes.
All of the council members and city staff that were present for Ramstad's legal update on the case Thursday agreed that they would like to seek a penalty fee for Hanson, but it may not be worth the battle.
Regardless of Hanson's cost to take out the existing deck and rebuild, it's the business owner's own fault and that shouldn't be counted as part of his penalty, they said.
But, if it's going to cause the case to be held up in negotiations or court, adding to staff hours and cost, it may not be worth it just to set an example.
"Our primary obligation is to enforce ordinances in the city," Ramstad said.
And, Louiseau said, the city hasn't charged other homeowners a penalty fee when they don't have proper permits.
The city works with them to remedy the situation and get the proper permits, which of course come with a cost.