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� Members of the Roseville City Council November 23, 2010 Page 2 ��<�< Moss & Barnett In the Rosediffcase, Rosemount amended the zoning ordinance after ihe date of an application for a building permit and site plan approval, but before final action on the application. The Court of Appeals sYated that the appiicant's "right to rely on the initial ordinance was subordinate to the city council's power io enact a different zoning regulation." 7d. at 644. Whatever right the applicant may have had to approval of the building permit application and site plan under the prior ordinance was lost when the city amended its ordinance. The applicant had not acquired a vested right to construct its project in accordance with the law in effect when it made its application. Th2 amended ordinance controlled. The situation with the asphalt plant is nearly identical. Bituminous had no vested right in the prior Code to have the application reviewed under the prior Code. The City has the authority to amend the Code in accordance with it Comprehensive Plan and legislative policy determinations. The issue of whether the outdoor storage would satisfy the criteria for a conditional use was undecided when state law stopped the City process. The Ciry amended the Code at a time when the City had no legal authority to approve or deny the appiication regardless of the language of the Code. There was no wrongful conduct or act by the City and upon which Bituminous detrimentally relied, and requiring consideration of the application under the old Code. Id. at 644. The zoning laws of the City are those currently in effect and the ones the Council shouid use to review the proposed project. 2. The asphalt plant is not a legal use under the prior ordinance. a. The City Attomey correctly stated in a October 14, 2010 memo, that there are features of the proposed oroject that are not a permitted use nor a conditional use under Section 1007.015 as it existed before the amendment. That remains true. Crushing is not listed as either a permitted or conditional use in Section 1007.015, and is therefore illegal at the site. The crushing operation is an integral part of the project and is intended as a continuing and permanent part of that operation. Accordingly, the crushing is not a temporary use and cannot qualify as an interim use. b. The asphalt plant operation was not identified as a permitted or conditional use before the amendment and was never a iegai use. The code estabiishes permitted, conditional and "not permitted" use in the Industrial Districts by designating specific industrial uses and listing oarticular activities and products. Examples include the following: glass products; ice, dry and natural; insecticides; machine tools; metal and metal products; paper products; rubber products; soaps and detergents; sporting athletic equipments; tools and hardware. The October amendment clarifies the Code as it existed when Bituminous applied for a conditional use. Many of the uses that are now listed as prohibited industriai uses were not listed in the previous version of Section 1007.15 as conditional or permitted and were already prohibited. Asphalt production was already excluded from the list of permitted and conditional uses. The listed use that seems most germane tor asphait production is "chemicals", but the Code only refers to chemicals not involving noxious odors or dangers from fire or explosives. By listing chemicals in that manner, it is logical to conciude that chemical production involving noxious odors, such as associated with the asphalt plant, was not, and continues not to be a permitted use. .... �... �