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HomeMy WebLinkAboutCity_Council_Packet_8-14-19CITY OF FALCON HEIGHTS Regular Meeting of the City Council City Hall 2077 West Larpenteur Avenue AGENDA August 14, 2019 at 7:00 P.M. A.CALL TO ORDER: B. ROLL CALL: Vacant ___ LEEHY____ HARRIS____ MIAZGA ___ GUSTAFSON___ STAFF PRESENT: THONGVANH____ C.PRESENTATION 1.Neal Kwong Award – Alia Tang D. APPROVAL OF MINUTES: 1.July 24, 2019 City Council Meeting Minutes E.PUBLIC HEARINGS: F. CONSENT AGENDA: 1. General Disbursements through: 8/07/19 $257,328.55 Payroll through: 7/31/19 $46,058.71 2. Approval of License(s) 3.Nomination of Esha Seth to Environment Commission 4.Investments through the 4M Fund G: POLICY ITEMS: 1.Variance Application for 1800 Albert Street H.INFORMATION/ANNOUNCEMENTS: I. COMMUNITY FORUM: J.ADJOURNMENT: BLANK PAGE  REQUEST FOR COUNCIL ACTION Families, Fields and Fair __________________________ The City That Soars! Item Neal Kwong Youth Citizen Award – Alia Tang Description The Neal Kwong Youth Citizenship Award was established September 2000 in memory of Neal Kwong. Neal Kwong, a youth leader and Eagle Scout, died suddenly early in August while at Boy Scout camp. Neal was an active coach, volunteer, and great young citizen. In his memory, we wish to establish the Neal Kwong Youth Citizenship Award to recognize outstanding youth leaders, volunteers, and citizens in their work here in Falcon Heights. We recommend that the award be granted annually to one person between the age of 12 and 21, who displays outstanding leadership, volunteerism, or citizenship while making contributions to the Falcon Heights community. The recipient would be recognized by the City Council, receive acknowledgement on a plaque at City Hall, and be highlighted in the city newsletter. These youth could be recommended through the schools, a nomination process, or by individual citizens of Falcon Heights. Mr. Gary Kwong would recommend awarding the Neal Kwong Citizenship Award to Alia Tang. Alia Tang is 19 years old and during her senior of high school, she became involved with various youth activist groups. Alia became a part of the national iMatter organization and started a group in St. Paul where it represents 4 different St. Paul high schools. Her group recognized that Minneapolis had a 2030 environmental sustainability plan, but St. Paul one. Alia led the group working with the St. Paul legislative leaders to draft a charter for sustainability, arranged all the meetings to move it forward. Alia passed on the leadership to the students who successfully got the measure signed into law a few weeks after her graduation (when she left the county to Mexico as a Rotary Youth Exchange Student). Budget Impact No significate impact on the adopted 2019 budget. Attachment(s) •Resolution 19-26 Awarding the Neal Kwong Youth Citizen Award to Alia Tang •Nomination Form and Recommendation Letter Meeting Date August 14, 2019 Agenda Item Presentation C1 Attachment Resolution and Nomination Form Submitted By Amanda Lor, Administrative Coordinator 1 of 85 Action(s) Requested Motion to approve the attached resolution and award the Neal Kwong Youth Citizen Award to Alia Tang. 2 of 85 3 of 85 BLANK PAGE  4 of 85 CITY OF FALCON HEIGHTS COUNCIL RESOLUTION August 14, 2019 No. 19-26 - -- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RESOLUTION AWARDING THE NEAL KWONG YOUTH CITIZENSHIP AWARD TO ALIA TANG WHEREAS, the Neal Kwong Citizenship Award was established in September 2000 in memory of Neal Kwong who passed away suddenly at a Boy Scout Camp; and WHEREAS, the award will be granted annually to one person between the age of 12 and 21, who displays outstanding leadership, volunteerism, or citizenship while making contributions to the Falcon Heights; and WHEREAS, the recipient would be recognized by the City Council, receive acknowledgement on a plaque at city hall, and be highlighted in the city newsletter; and NOW THEREFORE BE IT RESOLVED by the City Council of the City of Falcon Heights, Minnesota award Alia Tang the Neal Kwong Youth Citizenship Award. -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - Moved by: Approved by: ________________________ Randy Gustafson Mayor VACANT ____ In Favor Attested by: ________________________ GUSTAFSON Sack Thongvanh HARRIS ____ Against City Administrator LEEHY MIAZGA 5 of 85 BLANK PAGE  6 of 85 1 | Page CITY OF FALCON HEIGHTS Regular Meeting of the City Council City Hall 2077 West Larpenteur Avenue AGENDA July 24, 2019 at 7:00 P.M. A. CALL TO ORDER: B. ROLL CALL: Vacant ___ LEEHY__X__ HARRIS____ MIAZGA _X__ GUSTAFSON_X__ STAFF PRESENT: THONGVANH_X___ Mayor Gustafson Add two items to the Policy Items. First, the Night to Night 2019 Proclamation and Second, consider hiring an interim fire chief. Council Member Leehy Moved, Approved 3-0 C. PRESENTATION D. APPROVAL OF MINUTES: 1. June 12, 2019 City Council Meeting Minutes Approved 3-0 E. PUBLIC HEARINGS: F. CONSENT AGENDA: 1. General Disbursements through: 7/11/19 $220,855.96 Payroll through: 6/30/19 $19,620.54 2. Resignation of Ned Mohan from the Environment Commission 3. Resignation of Hawa Samatar from the Planning Commission Mayor Gustafson I want to thank Ned Mohan and Hawa Samatar for their services and helping the city. We currently have vacancies for Environment, Planning, and Parks Commission. I encourage citizens of Falcon Heights who are interested in becoming more engaged in the community to consider applying and serving on those commissions. It is open for students and adults. Approved 3-0 G: POLICY ITEMS: 1. Cultivating a Caring Community: “Grey Area Thinking Engagement Agreement 7 of 85 2 | Page City Administrator Thongvanh Ellen Krug will be the third guest speaker in the Cultivating a Caring Community discussions, and the theme is Grey Area Thinking. The event will be on Monday, November 18. This event will replace the Community Engagement Commission meeting. It is a free event, and Ellie will not charge the city for booking her. As a free event, she provided an Engagement Agreement form. The form indicates that if the city decides to cancel the event, we will compensate for her time. This is a great opportunity for the residents of Falcon Heights to be more involved in the inclusion efforts of cultivating a caring community. Council Member Miazga Moved, Approved 3-0 2. Night to Night 2019 Proclamation Mayor Gustafson The proclamation is passed every year. The Minnesota Crime Prevention Association, along with the American Automobile Association, Minnesota and local law enforcement agencies are sponsoring a statewide program called Night to Night on August 6, 2019. Mayor Gustafson Moved, Approved 3-0 3. Hire an Interim Fire Chief City Administrator Thongvanh Mayor Gustafson and I met with the Assistant Fire Chief, the four captains, and individual firefighters. The majority stated that they need a leader to provide assistance. After looking at many different opportunities, we decided to hire a professional service in the interim. It will not be a city employee but a contractor. Mayor Gustafson and I met with two individuals and interviewed them. One was a district chief for the St. Paul fire department and the other one was a former captain for St. Paul. We want to make sure that we bring someone who has experience managing a professional fire department and work with the needs of this council and the needs of the community. Motion to authorize the City Administrator to hire an Interim Fire Chief. Mayor Gustafson Moved, Approved 3-0 H. INFORMATION/ANNOUNCEMENTS: Council Member Miazga • Councilmember Leehy and I were at a reception for local council members and state representatives and senators to welcome the new president of the University of Minnesota. • Four metro suburbs recently adopted a local sales tax for five years. City of Excelsior officials petitioned the state for permission to levy a local sales tax so they could capture some of the dollars spent by out-of-towners at their lakeshore and Picture Us downtown. This past spring the legislature gave the city of 2,400 the authority to enact a half-cent sales tax on general 8 of 85 3 | Page purchases starting October 1. It will make Excelsior along with Rogers, West St Paul, and Elk River the first metro area suburbs to implement a local tax on top of the statewide general sales sex of 6.875%. I will be talking with those cities and see how they did it. • Environment Commission is continuing to do terrific work for the city. Council Member Leehy • The Restoration and Unity Day were fruitful times of people gathering and reflecting on July 6. • Cultivating a Caring Community - Healing and Understanding event was very successful. There were about 66 people, and they asked great questions. It was a meaningful event. On July 7, the Castile family did their annual family gathering and provided food and music entertainment. • I was selected to sit on the Criminal Justice Coordinating Council (CJC) for Ramsey County. I will be working with a council member from Lauderdale. • The city was approved with the Good Neighbor grant and will begin having story time in the fall. Story time will involve seniors and youths of all ages. More details to come in the next few weeks. Mayor Gustafson • The Community Engagement Commission met on July 22. We discussed Human Rights Day topics and what we want to focus on. CEC wants to host a Neighborhood Liaison event on September 16 to thank our current liaisons and educate the community about the role. We hope to recruit more in the future. • Filing is open for city council seats on July 30 - August 13. You can apply at the Ramsey County Elections office on Plato Boulevard in St. Paul. • Tuesday, August 6 is Night to Unite. There are about 10-12 parties in Falcon Heights, and if your block does not have one, feel free to join the closest one to you. • Saturday, August 10, is the Falcon Heights Fire Department Recruitment Open House. If you are interested in learning about firefighters and be part of a wonderful team, please attend the event. • State Fair is just around the corner. Please remember Falcon Heights city code and regulations. No vendor stands are allowed in Falcon Heights, but lemonade stand is fine. No parking on the lawn is allowed. City Administrator Thongvanh • I want to thank the community for coming to our Ice Cream Social and Hot dog with a Deputy. It was a great event and we had about 250-270 people that attended. • We are going through the budget process right now. At the July workshop, we talked about debt service, special revenue, and enterprise funds. The next budget workshop will be in August, and we will discuss general funds. I. COMMUNITY FORUM: J. ADJOURNMENT: 8:00 P.M. 9 of 85 BLANK PAGE  10 of 85 REQUEST FOR COUNCIL ACTION Families, Fields and Fair __________________________ The City That Soars! Item General Disbursements and Payroll Description General Disbursements through: 8/07/19 $257,328.55 Payroll through: 7/31/19 $46,058.71 Budget Impact The general disbursements and payroll are consistent with the budget. Attachment(s) • General Disbursements and Payroll Action(s) Requested Staff recommends that the Falcon Heights City Council approve general disbursements and payroll. Meeting Date August 14, 2019 Agenda Item Consent F1 Attachment General Disbursements and Payroll Submitted By Roland Olson, Finance Director 11 of 85 BLANK PAGE  12 of 85 13 of 85 14 of 85 15 of 85 16 of 85 17 of 85 18 of 85 19 of 85 20 of 85 21 of 85 22 of 85 23 of 85 24 of 85 25 of 85 26 of 85 27 of 85 28 of 85 REQUEST FOR COUNCIL ACTION Families, Fields and Fair __________________________ The City That Soars! Item Approval of City License(s) Description The following individuals have applied for a Municipal License for 2019. Staff has received the necessary documents for licensure. 1. Phone Swap LLC Budget Impact N/A Attachment(s) N/A Action(s) Requested Staff recommends that the Falcon Heights City Council approve the 2019 City License Applications contingent on background checks as required by each permit. Meeting Date August 14, 2019 Agenda Item Consent F2 Attachment N/A Submitted By Amanda Lor, Administrative Coordinator 29 of 85 BLANK PAGE  30 of 85 REQUEST FOR COUNCIL ACTION Families, Fields and Fair __________________________ The City That Soars! Item Appointment of Esha Seth to the Environment Commission Description City Staff and the Chair for the Environment Commission interviewed Ms. Esha Seth for the Environment Commission. Her Commission application is below. Date: 07/01/2019 Name: Esha Seth In Which Capacity Would You Like to Serve? I would like to join the Environment Commission. What is the Reason You Would Like to Serve? I am interested in being involved in the work to make Falcon Heights more environmentally friendly. I am personally very conscious about protecting the environment and would like to be involved in making systems and environmental changes with the city. List Prior (Previous) Public Service: I have worked at the Association for Nonsmokers-MN(ANSR) since June 2014 where I work as the tobacco technical assistance provider for public health departments across the state that are working on making policy, systems, and environmental changes in their community. I understand the work, time, relationships, and effort that go in to making substantial and lasting changes in a community. I have also been involved in grant writing and managing in my role at ANSR. I am working on completing my Master's degree in Public Health from the University of MN with a concentration of public policy. Budget Impact N/A Meeting Date August 14, 2019 Agenda Item Consent F3 Attachment Resolution Submitted By Justin Markon, Community Development Coordinator 31 of 85 Attachment(s) • Resolution 19-27 Appointment of Esha Seth to the Environment Commission Action(s) Requested Staff recommend approval of attached resolution appointing Esha Seth to the Environment Commission. 32 of 85 CITY OF FALCON HEIGHTS COUNCIL RESOLUTION August 14, 2019 No. 19-27 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - RESOLUTION APPOINTING ESHA SETH TO THE FALCON HEIGHTS ENVIRONMENT COMMISSION WHEREAS, the Environment Commission serves in an advisory capacity to the City Council on all policy matters relating to energy use, air quality, recreation and aesthetic appreciation, green infrastructure, water, solid waste, and environmental education; WHEREAS, City Staff and the Commission Chair have interviewed Esha Seth and recommend appointment to the Falcon Heights Environment Commission. NOW THEREFORE BE IT RESOLVED by the City Council of the City of Falcon Heights, Minnesota: 1. That the appointment of Esha Seth to the Falcon Heights Environment Commission is approved and adopted by the City Council of the City of Falcon Heights. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - Moved by: Approved by: ________________________ Randy Gustafson Mayor VACANT ____ In Favor Attested by: ________________________ GUSTAFSON Sack Thongvanh HARRIS ____ Against City Administrator LEEHY MIAZGA 33 of 85 BLANK PAGE  34 of 85 REQUEST FOR COUNCIL ACTION Families, Fields and Fair __________________________ The City That Soars! Item Investments through the 4M Fund Description Morgan Stanley has decided that a $10 million investment fund is needed to maintain our investments with them. Since we don’t have this amount to invest with Morgan Stanley, we are forced to move our investments from them. The 4M fund is an excellent alternative. A Resolution Reauthorizing Membership in the 4M fund is needed. Budget Impact No impact on the budget. Attachment(s) • Resolution 19-28 Reauthorizing Membership in the 4M Fund Action(s) Requested Staff recommends approving the Resolution Reauthorizing Membership in the 4M fund and move the investments from Morgan Stanley to the 4M fund. Meeting Date August 14, 2019 Agenda Item Consent F4 Attachment Resolution Submitted By Roland Olson, Finance Director 35 of 85 BLANK PAGE  36 of 85 CITY OF FALCON HEIGHTS COUNCIL RESOLUTION August 14, 2019 No. 19-28 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RESOLUTION AUTHORIZING MEMBERSHIP IN THE 4M FUND WHEREAS, Minnesota Statutes (the Joint Powers Act) provides that governmental units may jointly exercise any power common to the contracting parties; and WHEREAS, the Minnesota Municipal Money Market Fund (the 4M Fund) was formed in 1987, pursuant to the Joint Powers Act and in accordance with Minnesota Investment Statutes, by the adoption of a joint powers agreement in the form of a Declaration of Trust; and WHEREAS, the Declaration of Trust, which has been presented to this Council, authorizes municipalities of the State of Minnesota to become Participants of the Fund and make use from time to time including the 4M Liquid Asset Fund, the 4M Plus Fund, the Term Series, the Fixed Rate Programs, and other Fund services offered by the Fund; and WHEREAS, this Council deems it to be in the best interest for the municipality to make use of, from time to time, the approved services provided by the 4M Fund’s service providers including the Investment Advisor (Prudent Man Advisors, Inc.) or Sub-Advisor (RBC Global Asset Management (U.S.) Inc.), the Administrator (PMA Financial Network, Inc.), the Distributor (PMA Securities, Inc.) or the Fixed Rate Program Providers, PMA Financial Network, Inc. and PMA Securities, Inc., and the Custodian, U.S. Bank National Association, (“Service Providers”) and/or their successors; NOW THEREFORE BE IT RESOLVED AS FOLLOWS: Section 1. This municipality shall renew its membership as a Participant of the Fund and adopt and enter into the Declaration of Trust, a copy of which shall be filed in the minutes of this meeting. The appropriate officials are hereby authorized to execute those documents necessary to effectuate entry into the Declaration of Trust and the participation of all Fund programs. Section 2. This municipality is authorized to invest monies from time to time and to withdraw such monies from time to time in accordance with the provisions of the Declaration of Trust. The following officers of the municipality or their successors are designated as “Authorized Officials” with authority to effectuate investments and withdrawals in accordance with the Declaration of Trust: ______________________________________________________________________________ Print Name Title Signature ______________________________________________________________________________Print Name Title Signature 37 of 85 2 __________________________________________________________________________ Print Name Title Signature (Additional names may be added on a separate list. The treasurer shall advise the Fund of any changes in Authorized Officials in accordance with Fund procedures.) Section 3. The Trustees of the Fund are designated as having official custody of those monies invested in accordance with the Declaration of Trust. Section 4. That the municipality may open depository and other accounts, enter into wire transfer agreements, safekeeping agreements, third party surety agreements securing deposits, collateral agreements, letters of credit, lockbox agreements, or other applicable or related documents with institutions participating in Fund programs including U.S. Bank National Association, or its successor, or programs of PMA Financial Network, Inc. or PMA Securities, Inc. for the purpose of transaction clearing and safekeeping, or the purchase of certificates of deposit (“CDs”) or other deposit products and that these institutions shall be deemed eligible depositories for the municipality. PMA Financial Network, Inc. and PMA Securities, Inc. and their successors are authorized to act on behalf of this municipality as its agent with respect to such accounts and agreements. Monies of this entity may be deposited in such depositories, from time to time in the discretion of the Authorized Officials, pursuant to the Fund’s Programs available through its Services Providers. It is hereby certified that the Council of the City of Falcon Heights adopted this Resolution at a duly convened meeting of the Council and that such Resolution is in full force and effect on this date, and that such Resolution has not been modified, amended, or rescinded since its adoption. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Moved by: Approved by: ________________________ Randy Gustafson Mayor VACANT ____ In Favor Attested by: ________________________ GUSTAFSON Sack Thongvanh HARRIS ____ Against City Administrator LEEHY MIAZGA 38 of 85 REQUEST FOR COUNCIL ACTION Families, Fields and Fair __________________________ The City That Soars! Item Consider variance request for property at 1800 Albert Street Description Mr. Todd Thun and Ms. Marsha Keppel have completed an application for a variance request at their property, located at 1800 Albert Street. They are planning to tear down and rebuild the existing detached garage. They are requesting a variance from the required corner side yard setback. The property is located at the corner of Albert Street and Garden Avenue, and the garage faces and is accessed off Garden Avenue, the corner side yard. The lot is approximately 69’ by 296’. The City Code states the follows (highlights for emphasis): Section 113-240 – Accessory buildings and structures (e) Yard setbacks; building locations. The corner side yard setback for accessory buildings, including garages, shall adhere to the setback requirement for principal buildings as described in section 113-174(e)(2) (20 percent of the lot width). The rear yard and interior side yard setbacks shall be those required for garages and accessory buildings on interior lots. Lots smaller than 75 feet wide shall have a minimum corner side yard setback requirement of not less than fifteen feet. Garages on these lots may be located closer than 15 feet from the corner side lot line if the vehicular access door does not face the side street. In no case shall a garage or other accessory building be located within the corner side yard. The current garage is legally nonconforming, having been built before the current zoning regulations. It is currently 5 feet from the corner side yard property line. The City Code allows existing nonconformities to be replaced, as long as the nonconformity is not increased. The property owners would like to build a three-stall garage near the existing footprint, at an 8 foot corner side yard setback, which would expand the nonconformity. Thus, they have requested a variance from the required corner side yard setback. During conversation with staff, Mr. Thun has acknowledged that building a two-stall garage on the existing footprint would be the backup plan if the variance is denied. At 1803 Hamline Ave, a five-stall garage was built with a 28 foot setback. This garage complies with the zoning code, and the lot is 16 feet narrower than 1800 Albert St. Meeting Date August 14, 2019 Agenda Item Policy G1 Attachment(s) See below Submitted By Justin Markon, Community Development Coordinator 39 of 85 Mr. Thun and Ms. Keppel applied for a similar variance in 2005. At that time, the request was for a variance to allow a garage to be built on the same/current setback. The variance request was denied by both the Planning Commission and City Council. Residents are allowed to apply for a variance after having been denied. The Planning Commission held a public hearing on July 23 to consider the variance. Mr. Thun and a few of his neighbors spoke in favor of granting the variance. The Planning Commission voted 3-1 to recommend approving the variance. Their findings of fact are included herein. Staff recommend denying the variance and offer the following information as it relates to the considerations for a variance request: Section 113-62 - Variances (e) Review criteria. The city council shall not approve any variance request unless they find that failure to grant the variance will result in practical difficulties on the applicant, and, as may be applicable, all of the following criteria have been met: (1) The variance would be in harmony with the general purposes and intent of this chapter. Staff believe that building a three-stall garage to serve a single family home in the R-1 zoning district is in harmony with the general purposes and intent of the zoning chapter of the city code. (2) The variance would be consistent with the comprehensive plan. Staff believe replacing the garage is consistent with the comprehensive plan. (3) That, there are practical difficulties in complying with this chapter. The League of Minnesota Cities provides the following information related to this criteria: A variance may be granted if enforcement of a zoning ordinance provision as applied to a particular piece of property would cause the landowner “practical difficulties.” For the variance to be granted, the applicant must satisfy the statutory three-factor test for practical difficulties. If the applicant does not meet all three factors of the statutory test, then a variance should not be granted. The three standards for practical difficulties are as follows: reasonableness, uniqueness, and essential character. 40 of 85 Reasonableness Staff believe replacing the garage at an 8 foot setback is not reasonable. Mr. Thun has pointed out that with the existing garage, a 5 foot setback from the property line results in his vehicles projecting nearly into the street. The City’s right of way extends ten feet to the south of Garden Ave. This right of way exists to allow the City and contractors to place utilities in or near the street and to allow enough space for a future sidewalk if the City feels that is appropriate. By placing the garage 8 feet from the property line, staff believe the potential hazard of vehicles projecting into the right of way would not be eliminated. Staff believe the 15 foot corner yard setback was created for this purpose so that the right of way may remain clear, should the City need to access this area. Uniqueness Staff believe there are no unique characteristics that would prohibit the garage to be built at the required 15 foot setback. The lot is very deep, and staff believe the garage may be placed in a different location at the appropriate setback. The uniqueness of the property is related to the physical characteristics of the lot, not personal characteristics. Mr. Thun has shared that the required setback would obstruct the view of his backyard from the rear patio. Staff do not believe this fits the uniqueness criteria. Essential Character Staff believe building a three-stall garage at an 8 foot setback would not dramatically alter the essential character of the neighborhood. Staff believe that all of the practical difficulties criteria are not met. (4) That the granting of the variance will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety. Staff believe that granting the variance would not impair the above-mentioned criteria. (5) That the requested variance is the minimum action required to eliminate the practical difficulties. Staff believe the practical difficulties criteria are not met and that the garage may be placed elsewhere on the lot to satisfy the 15 foot corner side yard setback requirement. (6) Variances shall be granted for earth sheltered construction as defined in Minn. Stats. § 216C.06, subd. 14, when in harmony with this chapter. Variances may be approved for the temporary use of a one-family dwelling as a two-family dwelling. 41 of 85 This criteria is not applicable to the request. In conclusion, staff believe the proposed garage and its location do not meet all criteria for granting a variance. Staff are concerned that if the garage is built closer than allowed there could be hazards related to right of way access. Finally, staff believe there are other locations on the property that would meet all zoning requirements for replacing the garage. Budget Impact No impact Attachment(s) • Planning Application with additional information • Adopted Findings of Fact • City Code Section 113-62 – Variances • League of Minnesota Cities Information Memo • View of garage at 1803 Hamline Ave • Extract of minutes from September 14, 2005 City Council meeting • Resolution Action(s) Requested City Staff recommend denying the variance request for a corner side yard setback for the property at 1800 Albert Street. 42 of 85 43 of 85 List of Properties Owners for Properties Abutting 1800 Albert St. N. 1. John and Olga Dale, 1803 Hamline Ave. N., Falcon Heights, MN 55113-6221; 2. Dan and Ann Burt, 1794 Albert St. N., Falcon Heights, MN 55113-6221; 3. Chabha and Akli Mansouri, 1797 Hamline Ave. N., Falcon Heights, MN 55113-6221. 44 of 85 May 31, 2019 Planning Commission City of Falcon Heights Dear Planning Commission Members, This letter is in explanation and support of my family’s request for a variance in connection with a garage replacement at our home located at 1800 Albert St. N., in Falcon Heights (see accompanying Planning Application). The existing garage is on its last legs. (See Attachment A) It is nonconforming because it is too close to the street (in violation of the corner lot setback requirement for garages), and it is also located too close to our house. City officials have confirmed we are able to replace the existing garage with an identically sized garage in its present location because this is a "grandfathered" pre-existing nonconforming structure. In other words, because it was built before the ordinances were enacted, it can be replaced as a nonconforming structure as long as it is not expanded, and it is built on the same footprint. However, replacing the existing garage with a new, same-sized garage on the same footprint leaves us (and the city) with the problems associated with the present garage—it is too close to the street, too close to the house and too small for us to comfortably enter and exit. We would like to expand our garage from its existing size of 22' x 22' to 22' x 40', move it in three feet further off of Garden Street, and move it a foot further from the house. However, unless a variance from the setback requirement is granted, we will be unable to carry out this plan. Without a variance, we will replace the existing garage with an identical structure on its existing footprint. For reasons discussed below, that is less than desirable for us and the city as a whole. Details of Property Our home at 1800 Albert St. N. (including the garage), like most homes in the neighborhood, was built in the 1950's long before the present set back requirements were enacted. We purchased our home in 1991 and have lived there since. The property is shaped like a long, narrow shoebox, and measures 68' x 295' which the short side facing west on Albert Street, and the long side facing north along Garden Street. (See Attachment B) The front door of the home faces Albert Street while the garage entrance faces Garden Street. The 295' property line running east/west is located 10' off of the curb which runs along Garden Street and the 10' span from the curb to the lot line is a city-owned boulevard. The size and configuration of this lot is very unique to the City of Falcon Heights. To my knowledge only our property and the lot directly behind us to the East have the double length lots located on the corner of an intersection. This is significant because the length of these lots makes it impractical to relocate the garage to the back end of the lots—it is simply too great a distance from garage to house. The side street setback which applies to our garage, according to city officials, requires that the garage be set back 15' from the side property line running east/west along Garden Street. When coupled with the 10' city easement which begins at the curb along Garden Street, a garage must be located 25' off of Garden Street in order to comply with the setback ordinance. Presently, our existing garage is located 45 of 85 Thun/Keppel Variance Request May 31, 2019 2 15' off of Garden Street, or five feet off of the east/west property line. So, in order to comply with the set back requirement, the garage would have to be moved 10 feet deeper into our yard. We are proposing to move it three feet deeper rather than the required 10 feet for reasons discussed below. It should be noted that the proposed garage satisfies applicable lot coverage limitations. In other words, this is not a request to allow a structure which is too large for the existing lot. City officials have confirmed that existing lot size and present structures would allow a replacement garage of this size. The rear part of the first story of our home is comprised of a one room dining/family room area, with only a 68-inch-wide patio door providing a view of the back yard. (See Attachments C-F) The rear wall of the garage extends about to within four feet of the patio door. (See Attachment G) Moving the garage location 10 feet deeper into the yard to meet the 15' set back requirement would result in the garage blocking all but the last few inches of the patio door, thereby almost completely obstructing any view of our backyard from the first story of our house. (See Attachments H & I). Note: the hanging blanket shows how far in the rear wall of the garage would extend in front of the patio door in order to comply with the setback requirement. In addition, this patio door exits directly to our patio, which we use extensively during warm weather (and outdoor cooking during cold weather). (See Attachments J & K) Moving the garage location to 10 feet deeper into the yard would eliminate most of the useful patio area (as well as the view of our back yard). Reasons for Garage Expansion and Relocation Our desire is to replace our present garage with wider garage, move the garage three feet further off of Garden Street, and move the garage a foot further from our house for the following reasons: 1. Widening the garage will allow us to install more widely spaced garage door openings to allow for easier and safer ingress/egress to the garage. At the present time, the size of the entrance to the garage is very narrow and requires very careful maneuvering to park and remove our cars from the garage, and requires considerable contortion getting into and out of the vehicles when they are parked in the garage together; (See Attachment L ) 2. A larger garage will allow us to get all three of our vehicles off the street (and into shelter if necessary, during snow storms and other inclement weather). This will free up additional street parking for teachers and visitors to the elementary school directly across the street from our house. More importantly, it will allow us to get all vehicles completely off the street for snow plowing activities. At this time, plows must swerve away from the curb to get around any vehicles parked in our driveway. Also, a third stall can also be used for additional purposes, such as a woodworking shop, freeing up the work shop space in our basement for other purposes. I enjoy woodworking, and examples of my projects are pictured in attachments A, K & T (flag gate, outdoor shed, Adirondack chairs). 3. Moving the garage three additional feet off of Garden Street will allow vehicles in our driveway to be entirely off of Garden Street; at present time the back ends of both of our vehicles hang out on Garden Street when parked in the driveway. (See Attachments M & N) This forces street sweepers and snow plows to swerve around these vehicles if they are parked in the driveway. 46 of 85 Thun/Keppel Variance Request May 31, 2019 3 4. Moving the garage a foot further away from the house will lessen the hazard to the house if there is a fire in the garage. State and Local Criteria for Granting this Type of Variances Applicable state law provides that variances may be granted when the applicant for the variance establishes that there are “practical difficulties” in complying with the zoning ordinance. "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Minn. Stat. 462.357, subd. 1e (2019). This standard is mirrored in Sec. 113-62 of the Falcon Heights city code. In addition, the Falcon Heights city code provides that the city Council shall not approve any variance request unless they find that failure to grant the variance will result in practical difficulties on the applicant, and, as may be applicable, all of the following criteria have been met: • The variance would be in harmony with the general purposes and intent of this chapter. • The variance would be consistent with the comprehensive plan. • That, there are practical difficulties in complying with this chapter. • That the granting of the variance will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety. • That the requested variance is the minimum action required to eliminate the practical difficulties. Analysis 1. Constructing a garage which complies with the set-back requirement will result in "practical difficulties" in the use of our property a. Reasonable use of property in manner not allowed by set-back ordinance Moving our garage ten feet deeper into our yard will impair the reasonable use of our property in two respects. First, keeping the garage close to our house but moving ten feet deeper into the yard will result in our patio being largely eliminated because the garage would sit on top of the patio, leaving only a small, oddly shaped area which would be impractical for reasonable use or entertainment. Second, moving the garage 10 feet deeper will almost completely obstruct our view out of our house of almost all of the back yard. The view out the patio door will be of almost entirely of a garage wall a few feet away with the view of the backyard almost totally blocked. (See Attachments H & I) A central feature of this lot and its appeal is the deep picturesque backyard with its large mature legacy trees. (See Attachment O) That feature will be lost if the location of the garage is moved deeper into the yard 47 of 85 Thun/Keppel Variance Request May 31, 2019 4 to comply with the setback. Moreover, such a configuration would make our home dramatically less attractive to any potential buyer. Clearly, preserving the use of our patio and preserving the view of our backyard from the first level of our house is a reasonable use of our property. b. Plight of the landowner is due to circumstances unique to the property not created by the landowner Our practical difficulty in complying with the setback requirements results from: 1) the long and narrow shape of our lot; 2) the location of our patio door in the center of a very narrow lot; 3) the fact that the door is the only view of the backyard from the main level of our home; 4) and the long stretch of back yard beyond the to the rear of the lot (which makes putting the garage on the rear portion of the lot an impracticality). None of these factors are of our creation. All of these factors are associated with the property as it existed when we bought it. This combination of factors is very unique to the typical residential lot in Falcon Heights, and these unique features are of the type that an easement is intended to address. c. Variance, if granted, will not alter the essential character of the locality Our proposal is to move the location of the garage three feet deeper into the yard and away from the street, rather than the ten feet required under the setback ordinance. Would moving the garage three feet instead of 10 feet alter the essential character of the locality? Obviously, no. Along Garden Street between Snelling Avenue and Hamline Avenue there are 19 garages (including ours) and all are located on corner lots. At least half of them do not comply with the setback requirement because they are not 25' from the curb (10' easement plus 15' set back). Most of these houses and garages were likely built before the setback was enacted. Moreover, our proposal results in the garage being farther off Garden Street by three feet than the present existing garage or a replacement garage built on the same footprint. Moreover, having the garage three feet further off of Garden Street is in the interests of the community and the city. Vehicles will fit within the driveway and be off the street, thereby facilitating street cleaning and plowing activities, and reduce the chances of accidents. 2. Other Review Criteria Favor Granting of Variance Falcon Heights City Code Sec. 113.62 provides that the city council shall not approve any variance request unless they find that the failure to grant the variance will result in practical difficulties on the applicant, and as may be applicable, all of the following criteria have been met: a) The variance would be in harmony with the general purposes and intent of this chapter; 2) The variance would be consistent with the comprehensive plan; 3) That there are practical difficulties in complying with this chapter; 4) That the granting of the variance will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety; and 5) That the requested variance is the minimum action required to eliminate the practical difficulties. These criteria are met in this instance. 48 of 85 Thun/Keppel Variance Request May 31, 2019 5 Our property is a residential property located on a street with numerous other detached garages which do not comply with the present set back. Moreover, granting the variance will result in more set back than will be the case if the garage is simply rebuilt on its present footprint. The practical difficulties resulting from strict application of the setback are discussed above and will not be repeated here. Granting the variance will not adversely impact an adequate supply of light and air to adjacent property. The only property theoretically impacted would be the lot directly behind our house on the SE corner of Garden and Hamline. However, our garage and the house on that property are separated by over 250 feet of yard and privacy shrubs which separate the rear ends of the two lots. (See Attachments P & R) Move over, granting the variance will not substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety; indeed, the opposite is true. Granting of the variance will result in the garage being moved three additional feet off of Garden, resulting in a longer driveway for our vehicles. A refusal of the variance will result in us replacing the existing garage on the existing footprint, which results in the garage remaining two feet closer to Garden. Finally, our proposal is the minimum action required to eliminate the practical difficulties. We are consciously proposing a garage which is only 22' deep (instead of a desired 24') so that we can move it three feet further off the street. 3. Impracticality of Other Possible Locations for Replacement Garage It has been suggested in the past by city officials that a variance is not needed because the garage can be located to the rear end of our lot—either all the way back or partially back. Indeed, many of the properties along Garden Avenue do have their garages located on the rear end of the lot, which eliminates the blocking of view and use of the back yard. However, it is critical to note than none of those properties are of the double length lot size, which we are dealing with. Those properties have a manageable distance from the house to the garage because all of those lots are much shallower. This is why this case presents special circumstances unique to our property, which are not present with almost any other lot in Falcon Heights. Unlike most residential lots in Falcon Heights, placing our garage on the rear end of our property would result in having to walk 100-150 feet from the house to the garage. Carrying groceries half the length of a football field and installing/maintaining a sidewalk/walkway that entire distance (including snow removal in the winter) simply is not feasible. In addition, the back part of our yard has two rows of large, legacy trees, including an evergreen tree, which is over 100 feet tall. Moving the garage to the rear of the property could result in the removal of one or more large legacy trees, considering the span of each tree’s root system and the possible damage which could result from installing the new garage foundation. (See Attachments Q & R; Note: Two photos had to be taken to show the length of our lot because I could not fit it into just one photo) 49 of 85 Thun/Keppel Variance Request May 31, 2019 6 Finally, the present location of the garage provides a privacy barrier for the use of our patio, serving the function of a tall privacy fence. With our patio so close to Garden and the constant foot/vehicle/bicycle traffic on Garden Street, a privacy barrier is a necessity. Moving the garage to the rear of the property would force us to build a large, tall fence to allow for private use of our patio. Once the decision to build such a fence is made, then the next decision is how far to extend it--the full length of the property to the relocated garage? Moving our garage to the rear portion of our lot is simply is not feasible. Moving the garage to the mid- rear portion of the yard also is not desirable for the same reasons. Conclusion Granting the requested variance results in a win-win for us and the community. We will have a larger, more usable garage resulting in badly needed storage space in our house. Also, we will have a larger garage door, making it easier to park in the garage, exit the garage, and get in and out of our cars. We intend to construct a garage which is as visually appealing as possible. The city wins because the garage is moved three feet further off of the street, thereby improving street cleaning and snow plowing, and improving a possible traffic impediment. If a variance is not granted and that denial is ultimately upheld, we will replace the existing garage with an identically-sized garage on the exact same footprint. This will leave us with a less than optimal garage, which will be disappointing for us, and leaves the city with the new garage in the present location--three feet closer to the street than what would be the result from our requested variance. Any chance to at least partially remedy the proximity of the garage to Garden Street will be gone. This would be a lose-lose for the city and us. Respectfully submitted, Todd Thun/Marsha Keppel 50 of 85 5 1 o f 8 5 52 of 85 53 of 85 54 of 85 55 of 85 56 of 85 57 of 85 58 of 85 59 of 85 60 of 85 61 of 85 62 of 85 63 of 85 64 of 85 65 of 85 66 of 85 6 7 o f 8 5 6 8 o f 8 5 69 of 85 70 of 85 71 of 85 72 of 85 73 of 85 Sec. 113-62. - Variances. (a) Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Practical difficulties means the same as that term defined in Minn. Stats. § 462.357, as may be amended, meaning that the property owner proposes to use the property in a reasonable manner not permitted by this chapter, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and a variance, if granted, shall not alter the character of the locality. Economic considerations alone shall not constitute practical difficulties. Practical difficulties include but are not limited to inadequate access to direct sunlight for solar energy systems. Variance means a modification of or variation from the provisions of this chapter consistent with the state enabling statute for municipalities, as applied to a specific property and granted pursuant to the standards and procedures of this chapter. (b) Purpose. The purpose of this division is to provide the procedure and criteria for variances. (c) Application. (1) Any owner of property or a person holding a contract to purchase property, or an optionee holding an option conditioned solely on the grant of a variance, or the duly authorized agent of such appellant, may make application for a variance. The application shall be made on forms prepared by the zoning administrator. (2) The application shall contain the legal description of the property, the zoning district in which it is located, a brief statement of the reasons the variance is requested, a statement of the ownership interest therein of the applicant and the names and addresses of the owners of all abutting property as listed on the current real estate tax rolls. The application shall be verified. (d) Use variances prohibited. Variances may not be approved for a use that is not allowed in the zoning district where the property is located. (e) Review criteria. The city council shall not approve any variance request unless they find that failure to grant the variance will result in practical difficulties on the applicant, and, as may be applicable, all of the following criteria have been met: (1) The variance would be in harmony with the general purposes and intent of this chapter. (2) The variance would be consistent with the comprehensive plan. (3) That, there are practical difficulties in complying with this chapter. (4) That the granting of the variance will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety. 74 of 85 (5) That the requested variance is the minimum action required to eliminate the practical difficulties. (6) Variances shall be granted for earth sheltered construction as defined in Minn. Stats. § 216C.06, subd. 14, when in harmony with this chapter. Variances may be approved for the temporary use of a one-family dwelling as a two-family dwelling. (f) Conditions. The city may attach conditions to the grant of the variance. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance. (g) Procedure. (1) All applications for variances shall be referred to the planning commission for study and recommendation to the city council. (2) Within 60 days, the planning commission shall forward its recommendations to the city council; if no recommendation is transmitted within 60 days after referral of the application for variance to the planning commission, the city council may take action without further awaiting such recommendation. (3) Variances are granted or denied by motion of the city council. (h) Termination. The violation of any condition of the variance shall be the basis for the city council, following a hearing, to terminate the variance. If the property is not used or improvements substantially begun within a period of one year after the decision granting the variance, unless the variance decision provides otherwise, the variance shall be terminated. Unless the city council specifically approves a different time when action is officially taken on the request, approvals which have been issued under the provisions of this section shall expire without further action by the planning commission or the city council, unless the applicant commences the authorized use or improvement within one year of the date the variance is issued; or, unless before the expiration of the one-year period, the applicant shall apply for an extension thereof by completing and submitting a request for extension, including the renewal fee as established by city council. The request for extension shall state facts showing a good faith attempt to complete or utilize the approval permitted in the variance. A request for an extension not exceeding one year shall be subject to the review and approval of the zoning administrator. Should a second extension of time, or any extension of time longer than one year, be requested by the applicant, it shall be presented to the planning commission for a recommendation and to the city council for a decision. (Code 1993, § 9-15.03; Ord. No. 11-01, § 1, 7-13-2011) State Law reference— Variances, Minn. Stats. § 462.357, subd. 6(2). 75 of 85 145 University Ave. West www.lmc.org 1/11/2019 Saint Paul, MN 55103-2044 (651) 281-1200 or (800) 925-1122 © 2019 All Rights Reserved This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. INFORMATION MEMO Land Use Variances Learn about variances as a way cities may allow an exception to part of their zoning ordinance. Review who may grant a variance and how to follow and document the required legal standard of “practical difficulties” (before 2011 called “undue hardship”). Links to a model ordinance and forms for use with this law. RELEVANT LINKS: I. What is a variance A variance is a way that a city may allow an exception to part of a zoning ordinance. It is a permitted departure from strict enforcement of the ordinance as applied to a particular piece of property. A variance is generally for a dimensional standard (such as setbacks or height limits). A variance allows the landowner to break a dimensional zoning rule that would otherwise apply. Minn. Stat. § 462.357, subd. 6. Sometimes a landowner will seek a variance to allow a particular use of their property that would otherwise not be permissible under the zoning ordinance. Such variances are often termed “use variances” as opposed to “area variances” from dimensional standards. Use variances are not generally allowed in Minnesota—state law prohibits a city from permitting by variance any use that is not permitted under the ordinance for the zoning district where the property is located. II. Granting a variance Minn. Stat. § 462.357, subd. 6. Minnesota law provides that requests for variances are heard by a body called the board of adjustment and appeals; in many smaller communities, the planning commission or even the city council may serve that function. A variance decision is generally appealable to the city council. Minn. Stat. § 462.357, subd. 6. A variance may be granted if enforcement of a zoning ordinance provision as applied to a particular piece of property would cause the landowner “practical difficulties.” For the variance to be granted, the applicant must satisfy the statutory three-factor test for practical difficulties. If the applicant does not meet all three factors of the statutory test, then a variance should not be granted. Also, variances are only permitted when they are in harmony with the general purposes and intent of the ordinance, and when the terms of the variance are consistent with the comprehensive plan. 76 of 85 RELEVANT LINKS: League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 2 III. Legal standards When considering a variance application, a city exercises so-called “quasi- judicial” authority. This means that the city’s role is limited to applying the legal standard of practical difficulties to the facts presented by the application. The city acts like a judge in evaluating the facts against the legal standard. If the applicant meets the standard, then the variance may be granted. In contrast, when the city writes the rules in zoning ordinance, the city is exercising “legislative” authority and has much broader discretion. A. Practical difficulties “Practical difficulties” is a legal standard set forth in law that cities must apply when considering applications for variances. It is a three-factor test and applies to all requests for variances. To constitute practical difficulties, all three factors of the test must be satisfied. 1. Reasonableness The first factor is that the property owner proposes to use the property in a reasonable manner. This factor means that the landowner would like to use the property in a particular reasonable way but cannot do so under the rules of the ordinance. It does not mean that the land cannot be put to any reasonable use whatsoever without the variance. For example, if the variance application is for a building too close to a lot line or does not meet the required setback, the focus of the first factor is whether the request to place a building there is reasonable. 2. Uniqueness The second factor is that the landowner’s problem is due to circumstances unique to the property not caused by the landowner. The uniqueness generally relates to the physical characteristics of the particular piece of property, that is, to the land and not personal characteristics or preferences of the landowner. When considering the variance for a building to encroach or intrude into a setback, the focus of this factor is whether there is anything physically unique about the particular piece of property, such as sloping topography or other natural features like wetlands or trees. 77 of 85 RELEVANT LINKS: League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 3 3. Essential character The third factor is that the variance, if granted, will not alter the essential character of the locality. Under this factor, consider whether the resulting structure will be out of scale, out of place, or otherwise inconsistent with the surrounding area. For example, when thinking about the variance for an encroachment into a setback, the focus is how the particular building will look closer to a lot line and if that fits in with the character of the area. B. Undue hardship 2011 Minn. Laws, ch. 19, amending Minn. Stat. § 462.357, subd. 6. “Undue hardship” was the name of the three-factor test prior to a May 2011 change of law. After a long and contentious session working to restore city variance authority, the final version of HF 52 supported by the League and allies was passed unanimously by the Legislature. On May 5, Gov. Dayton signed the new law. It was effective on May 6, the day following the governor’s approval. Presumably it applies to pending applications, as the general rule is that cities are to apply the law at the time of the decision, rather than at the time of application. Krummenacher v. City of Minnetonka, 783 N.W.2d 721 (Minn. June 24, 2010). Minn. Stat. § 462.357, subd. 6. Minn. Stat. § 394.27, subd. 7. See Section I, What is a variance. The 2011 law restores municipal variance authority in response to a Minnesota Supreme Court case, Krummenacher v. City of Minnetonka. It also provides consistent statutory language between city land use planning statutes and county variance authority, and clarifies that conditions may be imposed on granting of variances if those conditions are directly related to, and bear a rough proportionality to, the impact created by the variance. In Krummenacher, the Minnesota Supreme Court narrowly interpreted the statutory definition of “undue hardship” and held that the “reasonable use” prong of the “undue hardship” test is not whether the proposed use is reasonable, but rather whether there is a reasonable use in the absence of the variance. The new law changes that factor back to the “reasonable manner” understanding that had been used by some lower courts prior to the Krummenacher ruling. See Section IV-A, Harmony with other land use controls. The 2011 law renamed the municipal variance standard from “undue hardship” to “practical difficulties,” but otherwise retained the familiar three-factor test of (1) reasonableness, (2) uniqueness, and (3) essential character. Also included is a sentence new to city variance authority that was already in the county statutes. 78 of 85 RELEVANT LINKS: League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 4 C. City ordinances Some cities may have ordinance provisions that codified the old statutory language, or that have their own set of standards. For those cities, the question may be whether you have to first amend your zoning code before processing variances under the new standard. A credible argument can be made that the statutory language pre-empts inconsistent local ordinance provisions. Under a pre-emption theory, cities could apply the new law immediately without necessarily amending their ordinance first. In any regard, it would be best practice for cities to revisit their ordinance provisions and consider adopting language that mirrors the new statute. Issuance of Variances, LMC Model Ordinance. Variance Application, LMC Model Form. Adopting Findings of Fact, LMC Model Resolution. The models linked at the left reflect the 2011 variance legislation. While they may contain provisions that could serve as models in drafting your own documents, your city attorney would need to review prior to council action to tailor to your city’s needs. Your city may have different ordinance requirements that need to be accommodated. IV. Other considerations A. Harmony with other land use controls Minn. Stat. § 462.357, subd. 6. See LMC information memo, Taking the Mystery out of Findings of Fact. The 2011 law also provides that: “Variances shall only be permitted when they are in harmony with the general purposes and intent of the ordinance and when the terms of the variance are consistent with the comprehensive plan.” This is in addition to the three-factor practical difficulties test. So a city evaluating a variance application should make findings as to: • Is the variance in harmony with the purposes and intent of the ordinance? • Is the variance consistent with the comprehensive plan? • Does the proposal put property to use in a reasonable manner? • Are there unique circumstances to the property not created by the landowner? • Will the variance, if granted, alter the essential character of the locality? B. Economic factors Minn. Stat. § 462.357, subd. 6. Sometimes landowners insist that they deserve a variance because they have already incurred substantial costs or argue they will not receive expected revenue without the variance. State statute specifically notes that economic considerations alone cannot create practical difficulties. Rather, practical difficulties exist only when the three statutory factors are met. 79 of 85 RELEVANT LINKS: League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 5 C. Neighborhood opinion Neighborhood opinion alone is not a valid basis for granting or denying a variance request. While city officials may feel their decision should reflect the overall will of the residents, the task in considering a variance request is limited to evaluating how the variance application meets the statutory practical difficulties factors. Residents can often provide important facts that may help the city in addressing these factors, but unsubstantiated opinions and reactions to a request do not form a legitimate basis for a variance decision. If neighborhood opinion is a significant basis for the variance decision, the decision could be overturned by a court. D. Conditions Minn. Stat. § 462.357, subd. 6. A city may impose a condition when it grants a variance so long as the condition is directly related and bears a rough proportionality to the impact created by the variance. For instance, if a variance is granted to exceed an otherwise applicable height limit, any conditions attached should presumably relate to mitigating the effect of excess height. V. Variance procedural issues A. Public hearings Minnesota statute does not clearly require a public hearing before a variance is granted or denied, but many practitioners and attorneys agree that the best practice is to hold public hearings on all variance requests. A public hearing allows the city to establish a record and elicit facts to help determine if the application meets the practical difficulties factors. B. Past practices While past practice may be instructive, it cannot replace the need for analysis of all three of the practical difficulties factors for each and every variance request. In evaluating a variance request, cities are not generally bound by decisions made for prior variance requests. If a city finds that it is issuing many variances to a particular zoning standard, the city should consider the possibility of amending the ordinance to change the standard. 80 of 85 RELEVANT LINKS: League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 6 C. Time limit Minn. Stat. § 15.99. A written request for a variance is subject to Minnesota’s 60-day rule and must be approved or denied within 60 days of the time it is submitted to the city. A city may extend the time period for an additional 60 days, but only if it does so in writing before expiration of the initial 60-day period. Under the 60-day rule, failure to approve or deny a request within the statutory time period is deemed an approval. D. Documentation Minn. Stat. § 15.99, subd. 2. See LMC information memo, Taking the Mystery out of Findings of Fact. Whatever the decision, a city should create a record that will support it. In the case of a variance denial, the 60-day rule requires that the reasons for the denial be put in writing. Even when the variance is approved, the city should consider a written statement explaining the decision. The written statement should explain the variance decision, address each of the three practical difficulties factors and list the relevant facts and conclusions as to each factor. Minn. Stat. § 15.99, subd. 2. If a variance is denied, the 60-day rule requires a written statement of the reasons for denial be provided to the applicant within the statutory time period. While meeting minutes may document the reasons for denial, usually a separate written statement will need to be provided to the applicant in order to meet the statutory deadline. A separate written statement is advisable even for a variance approval, although meeting minutes could serve as adequate documentation, provided they include detail about the decision factors and not just a record indicating an approval motion passed. VI. Variances once granted A variance once issued is a property right that “runs with the land” so it attaches to and benefits the land and is not limited to a particular landowner. A variance is typically filed with the county recorder. Even if the property is sold to another person, the variance applies. VII. Further assistance Jed Burkett LMCIT Land Use Attorney jburkett@lmc.org 651.281.1247 If you have questions about how your city should approach variances under this statute, you should discuss it with your city attorney. You may also contact League staff. 81 of 85 Garage at 1803 Hamline Avenue 82 of 85 83 of 85 84 of 85 CITY OF FALCON HEIGHTS COUNCIL RESOLUTION August 14, 2019 No. 19-29 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - RESOLUTION TO DENY THE VARIANCE APPLICATION AT 1800 ALBERT STREET WHEREAS, the owner of 1800 Albert Street, Falcon Heights, MN 55113 PID: 152923340131 Legal Description: The North 68.58 feet of the West ½ of Lot 1, Block 1, Larpenteur Villas; and WHEREAS, the owners, Todd Thun and Marsha Keppel propose to construct a detached garage eight (8) feet from the north property line, which is the corner side yard. The Zoning Ordinance requires that structures, including detached garages, to be located no closer than fifteen (15) feet from the corner side yard line. The applicant is required to apply for a variance for the construction of the garage, which infringes on the required setback by seven (7) feet; and WHEREAS, the Planning Commission held a posted and held a public hearing on July 23, 2019; and WHEREAS, the Planning Commission made recommendation for approval of the application for a variance; and WHEREAS, City Staff make a recommendation for denial of the application for a variance; NOW THEREFORE BE IT RESOLVED by the City Council of the City of Falcon Heights, Minnesota adopt the following findings for denying the variance at 1800 Albert Street, Falcon Heights, MN: 1. That the variance application does not meet the conditions of practical difficulties 2. That the granting of the variance would be in harmony with the general purposes and intent of the Zoning Ordinance; 3. That the granting of the variance would be consistent with the comprehensive plan; 4. That the granting of the variance would not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - Moved by: Approved by: ________________________ Randy Gustafson Mayor VACANT ____ In Favor Attested by: ________________________ GUSTAFSON Sack Thongvanh HARRIS ____ Against City Administrator LEEHY MIAZGA 85 of 85