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HomeMy WebLinkAboutPCAgenda_05Feb22City of Falcon Heights Planning Commission City Hall 2077 W. Larpenteur Avenue Tuesday, February 22, 2005 7:00 p.m. AGENDA A. CALL TO ORDER: 7 p.m. B. ROLL CALL: Tracy Lukermann Harris Lageson Heideman DeLeo Ryan Ziebarth Council Liaison Lindstrom City Administrator Worthington Staff Liaison Jones City Attorney C. APPROVAL OF MINUTES: November 23, 2004 D. AGENDA ITEM: Election of Commission Chair for 2005. E• PUBLIC HEARING: Interim Use Permit for Farmers Market F. AGENDA ITEM: Recommendation to City Council on Farmers' Market IUP G. INFORMATION AND ANNOUNCEMENTS H. ADJOURN to workshop • City of Falcon Heights Planning Commission City Hall 2077 W. Larpenteur Avenue Tuesday, February 22, 2005 7:00 p.m. AGENDA i• A. CALL TO ORDER: 7 p.m. B. ROLL CALL: Tracy Lukermann Harris_ Heideman DeLeo Ryan Council Liaison Lindstrom City Administrator Worthington City Attorney C. APPROVAL OF MINUTES: November 23, 2004 D. AGENDA ITEM: Election of Commission Chair for 2005 Lageson Ziebarth Staff Liaison Jones E. PUBLIC HEARING: Interim Use Permit for Farmers Market F. AGENDA ITEM: Recommendation to City Council on Farmers' Market IUP G. INFORMATION AND ANNOUNCEMENTS H. ADJOURN to workshop • FALCON HEIGHTS 2077 W. Larpenteur Avenue Falcon Heights, MN 55113-5594 email: mailCa~ci.falcon-heights.mn.us website: www.ci.falcon-heights.mn.us MEMORANDUM To: Members of the Planning Commission CC: Heather Worthington, City Administrator; Peter Lindstrom, Council Liaison From: Deb Jones, Staff Liaison Subject: Planning Commission Meeting on February 22 Date: February 18, 2004 Phone - (651) 792-7600 Fax - (651) 792-7610 There are two items of business before the Planning Commission this month. First, you need to elect a Chair for 2005! Second, we have a public hearing on the new IUP for the Farmer's Market. We briefly discussed the • latter at the workshop on January 29. For those who were not present, the essentials are covered in the staff report. The most significant change this year is that we are proposing to change the time limit of the lUP -from one year, as for 2003 and 2004, to such time as the credit union no longer owns the property or is no longer the main occupant of the premises, or until the other conditions are no longer met. This will make it unnecessary to keep applying annually. TCCU has shown they are a responsible host to the market and a good neighbor. At the close of the meeting we will adjourn to the last (!)workshop on Chapter 9 (phase 1). The goal of this phase is to identify areas that need extra research and possible revision when we rewrite this chapter of our code in the year ahead. I have updated the summary of areas that have been identified so far and enclosed a copy to refresh your memory. If there is anything that raised a red flag in your reading of the code that you do not see on this list, please bring it up at any time. The sections that still need the first going-over are Sections 15, 16 and 17, so you will probably want to reread those before the meeting if you haven't reviewed them recently. You should all have copies of those portions; if not, please contact me. You may have additional insight since the workshop on January 29! I also enclose as "study aids," copies of what some other cities have on variances, and relevant material I found on the state website, all of which may be of interest to you as a comparison to our code, plus a handout from the training that we did not get to that morning. If you are unable to attend Tuesday's meeting, please let Staff know as soon as possible. We need a quorum! • HOME OF THE MINNESOTA STATE FAIR AND THE U OF M INSTITUTE OF AGRICULTURE ~~,\) PRINTED ON RECYCLED PAPER L MEMORANDUM To: Members of the Planning Commission CC: Heather Worthington, City Administrator; Peter Lindstrom, Council Liaison From: Deb Jones, Staff Liaison Subject: Planning Commission Meeting on February 22 Date: February 18, 2004 There are two items of business before the Planning Commission this month. First, you need to elect a Chair for 2005 ! • Second, we have a public hearing on the new IUP for the Farmer's Market. We briefly discussed the latter at the workshop on January 29. For those who were not present, the essentials are covered in the staff report. The most significant change this year is that we are proposing to change the time limit of the IUP from one year, as for 2003 and 2004, to such time as the credit union no longer owns the property or is no longer the main occupant of the premises, or until the other conditions are no longer met. This will make it unnecessary to keep applying annually. TCCU has shown they are a responsible host to the market and a good neighbor. At the close of the meeting we will adjourn to the last (!)workshop on Chapter 9 (phase 1). The goal of this phase is to identify areas that need extra research and possible revision when we rewrite this chapter of our code in the year ahead. I have updated the summary of areas that have been identified so far and enclosed a copy to refresh your memory. If there is anything that raised a red flag in your reading of the code that you do not see on this list, please bring it up at any time. The sections that still need the first going-over are Sections 15, 16 and 17, so you will probably want to reread those before the meeting if you haven't reviewed them recently. You should all have copies of those portions; if not, please contact me. You may have additional insight since the workshop on January 29! I also enclose as "study aids," copies of what some other cities have on variances, and relevant material I found on the state website, all of which may be of interest to you as a comparison to our code, plus a handout from the training that we did not get to that morning. If you are unable to attend Tuesday's meeting, please let Staff know as soon as possible. We need a quorum! City of Falcon Heights • Planning Commission Minutes November 23, 2004 PRESENT: Commissioners DeLeo, Lukermann, Harris, Lageson, Maher, Heideman, Ryan, Tracy, Ziebarth, Council Member Lindstrom. Also present were City Administrator Heather Worthington, City Attorney Joel Jamnik and Staff Liaison Deb Jones. The meeting was called to order by Commissioner Harris, Commission Chair, at 7:02 p.m. The minutes of the September 28, 2004, meeting were approved. VARIANCE AT 2135 HOYT AVENUE Staff liaison Jones presented the staff report on the case. 2135 Hoyt is a residence in the University Grove neighborhood of Falcon Heights. The property is bounded on the east by the common area walkway between Hoyt and Folwell and on the north (rear) by a common area which provides a greenspace buffer over 40 feet wide between the property and closest property to the north. While the property is not unique, it does belong to a limited group of properties that share some unusual characteristics: (1) houses stand on land that is owned by the University of Minnesota; (2) properties are adjacent to an open commons; (3) living spaces are oriented toward the commons, at the rear of these houses. • The owner seeks a variance to construct a 14 foot by 16 foot sunroom addition at the rear of the house. The addition would be designed to blend architecturally with the existing home. The addition would encroach 9 feet into the required rear yard of 30 feet. The porch would replace an existing non-conforming deck that is slightly smaller in area than the proposed porch. The homeowner points out that several homes in the neighborhood make similar encroachments into their rear setback, and therefore that the house will not be out of line with the rest of the block. The applicant further says that living areas of homes in the neighborhood are oriented toward the commons and that mosquitoes make it very difficult to fully enjoy this amenity without a screened porch. The proposed addition, if allowed, will be 66 feet from the center line of the commons. A map of the neighborhood provided to the Commission shows that six homes in the immediate neighborhood, out of 24, do encroach into rear setback, and the proposed addition would not be greatly out of line with existing structures. In summary, the Staff did not find any negative impact on the area or impairment of property values that would ensue from granting the variance. As to whether denial of the variance would cause a substantial hardship, Staff were willing to defer to the Commission on making that judgment. Therefore, there is no Staff recommendation. In response to a question from Commissioner Lageson, City Attorney Jamnik affirmed that • a variance would be required even if the owner built the porch on the same footprint as the existing deck. City of Falcon Heights -Planning Commission Meeting of November 23, 2004 -Page 1 of 4 PUBLIC HEARING • The public hearing was opened by the Chair. Roger Miller, the property owner and applicant came forward to speak and to answer any questions the Commission might have. Commissioner Harris pointed out that mosquitoes are everywhere; why would the problem be any worse at this property. Mr. Miller said that the site had been swamp, according to a map from the 1920, and has a lot of high vegetation. This affects the whole Grove neighborhood. There being no one else who wanted to speak, the hearing was closed. VARIANCE AT 2135 HOYT: DISCUSSION AND RECOMMENDATION Commissioner Ziebarth said that she had gone to look at the property. She did not feel that the variance was unreasonable. Commissioner Lukermann said she would move to recommend approval with a qualifying statement that the project does not meet the hardship standard but that the homeowner has sought and received the approval of everyone with a stake in the commons area. This and the existence of the commons provide mitigating circumstances. Commissioner Heideman seconded the motion. Commissioner Ryan agreed that there is not a qualifying hardship and felt that the other • nonconforming properties are not relevant. His concern is the setting of a precedent. The Commission should not feel bound by its decision tonight when it is asked to consider similar applications from other property owners. He acknowledged the special circumstances but believes we should abide by our code. If the encroachment was 10 feet or more he would deny it absolutely. Harris agreed with Ryan's concern but said she felt this variance was more justified than the last one the Commission considered. Lukermann said this was the reason for the stipulation in her motion. In response to a question from Commissioner Lageson, Mr. Miller said the commons is used almost as parkland. It is open to all, but each resident takes care of his/her own portion. There being no further discussion, the question was called. The motion passed unanimously. The Council will consider the Commission's recommendation on December 8. DISCUSSION OF STORAGE USE UNDER CITY ZONING CODE. Staff Liaison Jones introduced a Staff report on this issue by emphasizing that this agenda item is not a reconsideration of the TIES application in June but the result of interest that • was generated at the time regarding storage as a use under zoning codes in general. The Commission, TIES and members of the public had all requested more information. Staff had requested information from other cities in the metro and did some internet research and City of Falcon Heights -Planning Commission Meeting of November 23, 2004 -Page 2 of 4 presented here a summary of that research. The scope of the survey was (1)mini-storage • and self-storage, (2) warehousing, and (3) storage in general -when and how it is mentioned, and in what context. Cities studied were Roseville, Lauderdale, West St. Paul, Richfield, Plymouth, Maple Grove, Elk River, Bloomington and Chanhassen. In general, "mini-storage" or self-storage is allowed only in industrial districts and, occasionally, in certain commercial/business districts that are regional or highway oriented, not local neighborhood or community commercial areas. In some cases this use is conditional. Warehousing is associated with industrial zones and industrially oriented business zones, always as an accessory use and often conditional. Open storage is generally limited to an accessory use in industrial zones and is usually conditional. Some cities place very specific restrictions on outdoor storage. Commissioner Harris asked about a provision for basement storage in Falcon Heights' B3 code. Jones said that this was introduced to accommodate a particular property owner, the owner of the golf store, who used the basement for storage for a time when Falcon Crossing was built. Commissioner Heideman asked about the various uses of the TIES property when it belonged to Harvest States. City Administrator Worthington pointed out that Harvest States was in existence before the establishment of the City; all the uses were accessory. Lee Whitcraft, co-executive director of TIES, was invited to address the Planning Commission and expressed his appreciation for the opportunity. He stressed that TIES' . hope is to work with the City to let TIES staff have the opportunity to make use of space at the site to store their vehicles, trailers, etc., space that is not otherwise used. There would not be any outdoor storage, and impact on the surrounding area would be minimal. It is important to TIES to be good neighbors to Hollywood Court. Jones reminded the Commission that they were not being asked to review the June decision. This discussion is part of the ongoing Commission study of the city zoning code and future changes that might be made in the upcoming general revision. Commissioners held a general discussion of the storage issue in relation to the TIES property (and its historical use) in particular and the Falcon Heights city plan in general, also of accessory uses in the several business districts. Several Commissioners pointed out that the city does not have the kind of industrial area that usually accommodates this kind of use. Ms. Harris pointed out that the task of the Commission here is to consider the general issue, not solve TIES problem. Ms. Worthington provided additional background information and reiterated that the Commission is not being asked for any specific action at this time. In spite a some sympathy toward TIES and their need to find uses for their space and generate revenue, the general consensus was that rental storage is not appropriate in any zone of Falcon Heights and that the Commission does not recommend adding storage as a use in B3. However, the Commission might in the future look at whether or not B3 is an appropriate designation for the southwest quadrant of Snelling/Larpenteur. PLANNING FOR COMMISSION TRAINING • Ms. Jones announced that a training opportunity has been set up for Commissioners in January on a date to be determined, a Saturday morning. The training would cover City of Falcon Heights -Planning Commission Meeting of November 23, 2004 -Page 3 of 4 variances, code amendments, and the "tough cases" and might be open to commissioners from adjoining cities. January 29 was settled as the best date. Staff will confirm this with the trainers and inform Commissioners. Ms. Jones also asked the Commissioners to consider a date for an extra workshop to wind up the discussion of Chapter 9. The consensus was that this would be better after the workshop. Staff will provide an updated outline on what has been discussed and what remains to be discussed. INFORMATION AND ANNOUNCEMENTS Ms. Jones reported on permit parking on Lindig. Several residents have applied for their parking permits. Signs have been ordered. Parked cars have been "flyered" several times. Enforcement will begin on December 1. Ms. Jones also reported back on some pedestrian hazards that had been reported on Larpenteur and Roselawn. These are not pipes but the casings of the water meters that work their way out of the ground over time. Public Works has gone out to pound them back down even with the sidewalk, but they are waiting for something from St. Paul Water Service before they deal with the ones on Larpenteur. Those are marked with cones. If anyone observes any more, please contact Public Works. Commissioner Lageson reminded residents that they have the opportunity to give input on the organized collection issue until December 30. They can send their comments by mail or email. The Council is expected to make a decision in January. • City Administrator Heather Worthington thanked retiring Commissioner Melissa Maher for her years of service on the Falcon Heights Planning Commission. Her term is expiring in December. She and her family are moving to Lino Lakes. The Commission applauded Ms. Maher's service and wished her well. ADJOURNMENT The meeting was adjourned at approximately 8:44 p.m. Respectfully submitted, ~~d~~'~- Deborah ones, Staff Liaison City of Falcon Heights -Planning Commission Meeting of November 23, 2004 -Page 4 of 4 • Planning Commission 2/22/05 ITEM: Interim Use Permit for the Twin Cities Co-ops Federal Credit Union SUBMITTED BY: Deborah Jones, Planning and Zoning Coordinator REVIEWED BY: Heather Worthington, City Administrator Roger Knutson, City Attorney EXPLANATION: Summary: For the last two summers, a Farmer's Market has been in operation in the north parking lot of Twin City Cooperative Federal Credit Union at 2025 W. Larpenteur Avenue in Falcon Heights. The market has been open Tuesday mornings, 8:00 a.m. to noon, from June through October. The existence of the market is allowed under an Interim Use Permit (IUP) that was first issued in 2003 and reissued in 2004, after changes were made to the City Code in 2003 to include this interim use in the B2 zone. Both of these permits were valid for one year. The Farmer's Market has become a popular and highly valued asset to the community. • Response has been overwhelmingly positive during both seasons. Residents have expressed much appreciation for the way the market has been conducted and for the excellent supervision and stewardship provided by the property owner TCCU. In 2004, the IUP was changed to adjust the parking requirements in response to the experience of the first season. Traffic flow in and out of the parking lot was streamlined, and provisions were made to facilitate east-bound exit from Prior Avenue onto Larpenteur. According to observations by both City Staff and TCCU personnel, the traffic and parking changes worked well. Proposed changes to the IUP in 2005: This year three changes are proposed to the Interim Use Permit for the Farmer's Market: 1. Staff recommends that the new permit become open ended rather than limited to one year. The new permit would be good as long as Twin City Co-op owns and occupies the property and all other permit conditions are met. After two successful years Staff finds that the Co-op has done an excellent job hosting this community asset. Extending the time of the IUP will save the expense and time of renewing the permit annually while the Co-op occupies the site, while avoiding possible unanticipated consequences of amending the City Code yet again to make this a conditional use, available to future owners or occupants of the property. 2. The Market would begin in May instead of June to give the vendors an opportunity to offer perennials and bedding plants at the appropriate season. This change is requested • by the Market management. Planning Commission: Staff Report on Farmers Market IUP, Page 1 of 2 2/22/05 • 3. Sales would be allowed to begin at 7:30 a.m. instead of 8:00 to give commuters the opportunity to shop before they go to work. There have been many requests for this change, both from Falcon Heights residents and from people employed at the University. It must be emphasized that this will not mean that vendors will arrive earlier than they have in the past. In 2003 and 2004 vendors were usually ready to go by 7:30 a.m. and simply waited until the opening bell at 8:00. There will be no change to vendor arrival and set-up times. ATTACHMENT: Copy of Public Hearing Notice Draft of 2005 Interim Use Permit ACTION REQUESTED: Public Hearing Discussion Recommend approval of the IUP to the City Council • n U Planning Commission: Staff Report on Farmers Market IUP, Page 2 of 2 2/22/05 • CITY OF FALCON HEIGHTS RAMSEY COUNTY, MINNESOTA INTERIM USE PERMIT Permit. Subject to the terms and conditions set forth herein, the City of Falcon Heights ("City") hereby grants an Interim Use Permit ("IUP") to allow a Farmer's Market at Twin Cities Cooperative Federal Credit Union, 2025 W. Larpenteur Avenue, Falcon Heights operated by the St. Paul Farmer's Market. 2. Subiect Property. The IUP is for that certain real property located in Ramsey County, Minnesota, commonly referred to as 2025 W. Larpenteur Avenue, Falcon Heights, MN and legally described as follows: . The South 765 feet of the parcel of land which consists of the West 20 acres of the East half of the Southwest Quarter and the East 15 acres of the West half of the Southwest Quarter, all in Section 16, Township 29, Range 23 of Ramsey County, Minnesota; except the East 131 feet of the South 186 feet of said West 20 acres and except the West 60 feet of said East 15 acres (subject to roads and easements) And Except the South 765 feet of the part East of the West 60 feet and except the South 522 feet of the West 60 feet of the following described tract: The South 15 acres of West 20 acres of the East half of the Southwest Quarter and the East 15 acres of the West half of the Southwest Quarter (subject to roads and easements) in Section 16, Township 29, Range 23 of Ramsey County, Minnesota 3. Conditions. The IUP is granted subject to the following conditions: ^ Market may only be open to the public between the hours of 7:30 a.m. and Noon local time on Tuesdays. ^ Set-up will begin no earlier than 6:30 a.m., and the market must be taken down and all vendors must have vacated the Location no later than 1:30 p.m. local time. • There may not be any sales prior to 7:30 a.m. ^ There may not be more than 60 selling stalls. 116381 ^ The Farmer's Market may be held on the Property during the months of • May through October. ^ The vendors may not occupy more than 75 parking places at the Location, for selling stalls and parking. ^ No fewer than 181 parking spaces must be available at the Location for customer parking. ^ Property owner must provide at least 160 parking spaces for its employees during the hours of the Farmer' Market, either at the Location or another location to be specified. ^ Vendors are responsible for leaving the area clean when they leave. ^ The Location and all adjoining land must be free of any trash or debris which results from the Market or is reasonably attributed to the Market. ^ Vendors will sell only what they grow or produce themselves. ^ Items for sale will be limited to fruit, vegetables, flowers and decorative plants, bedding plants, meat and dairy products, honey, baked goods, salsa, jams, preserves and similar products, all of which shall be subject to and must comply with applicable local, state and federal health and safety and food rules, regulations and laws, and the rules of the St. Paul Farmer's Market. ^ No sound amplification devices may be used during the Farmer's Market by the Market or by vendors. ^ The Property Owner's Director of Facilities will be the managing agent • responsible for the conduct of the vendors in compliance with the conditions of the Interim Use Permit. ^ Use of the Location must be pursuant to a written agreement between the owner of the Location and the St. Paul Farmer's Market ^ The owner of the Location must make the St. Paul Farmer's Market aware of this Permit and require the St. Paul Farmer's Market to comply with all applicable terms and conditions of this Permit. ^ The owner of the Location shall be obligated to make sure that a policy or policies of insurance of the proper type, kind and amount are in place to cover any injuries or damages to individuals and property which may occur at, during or as a result of the operation of the Market at this Location. ^ Reasonable and appropriate measures must be taken to prevent unreasonable disturbance to adjacent properties, such as trash or debris finding its way onto the adjacent properties, and not being removed, or customers of the Market crossing over adjacent properties without permission of the owner. ^ The owner of the location shall take reasonable and appropriate measures to ensure that the St. Paul Farmer's Market does not disturb adjacent property owners with excessive noise. • 116381 i• d. A change in the zoning ordinance which no longer allows the use. 4. Termination of Permit. The Permit shall terminate upon the occurrence of any of the following events, whichever first occurs. a. Sale of the Subject Property or any part thereof. b. A lease of the Subject Property, or any part thereof, if Twin Cities Cooperative Federal Credit Union is no longer a primary tenant of the Subject Property. c. Violation of any of the conditions set forth herein. 5. Recording. This permit may be recorded against the title to the subject property. Dated: .2005. CITY OF FALCON HEIGHTS i~ By: .~ ATTEST: Susan L. Gehrz, Mayor Heather Worthington, City Administrator/Clerk Landowner: The terms and conditions of this Interim Use Permit are agreed to and accepted as of the date set forth below: Dated: , 2005. 116381 By: Cindy Hartley, Director of Facilities CITY OF • 2077 W. Larpenteur Avenue Falcon Hei hts MN 551 - 9 13 5594 email: mail~ci.falcon-heights.mn.us Phone - (651) 792-7600 website: www.ci.falcon-heights.mn.us Fax - (651) 792-7610 February 8, 2005 SUBJECT: Legal notice of a hearing concerning the Farmer's Market Dear Property Owner: Printed on the reverse of this letter is a copy of the legal notice of a hearing to be held regarding the renewal of the Interim Use Permit for the Farmer's Market on the north parking lot of Twin Cities Co-op Credit Union at 2025 W. Larpenteur. This notice is being sent to owners of all properties within 350 feet of the site. The hearing is open to the public. It will take place before the City Planning Commission at 7:00 p,m. on Tuesday, February 22, 2005, in the City Council chambers. We want to make you aware of three changes proposed this year for the new Interim Use Permit for the Farmer's Market. 1. The new permit will not expire in one year like the last two, but will be good as long as Twin City Co-op owns and occupies the property and all the permit conditions are met. After two successful years we feel that the Co-op has done an excellent job hosting this community asset. Extending the time of the lUP will save the expense and time of renewing the permit annually while the Co-op occupies the site. 2. The Market will begin in May instead of June to give the vendors an opportunity to offer perennials and bedding plants at the appropriate season. 3. Sales will begin at 7:30 a.m. instead of 8:00 to give commuters the opportunity to shop before they go to work. We have received many requests for this. There will be no change to vendor set-up times; they are usually ready to go by 7:30 a.m. under the current hours. Vendors will not arrive earlier at the site than they have in the past. Please contact me at 651/792-7611 or Deb Jones, our Planning and Zoning Coordinator at 651/792-7613 if you have questions or concerns. Sincerely, ~~G7/GG~f - He ~~ • ather Worthington City Administrator I1UME OF THE MINNESOTA STATE FAIR AND THE U OF M INSTITUTE OF AGRICULTURE ~~~ PRINTED ON RECYCLED PAPER • CITY OF FALCON HEIGHTS, MINNESOTA PUBLIC HEARING NOTICE NOTICE IS HEREBY GIVEN, that the Falcon Heights Planning Commission will meet on Tuesday, February 22, 2005, at approximately 7:00 PM, at Falcon Heights City Hall, 2077 Larpenteur Avenue West, Falcon Heights, Minnesota 55113, to consider approving an interim use permit for a fdrmer's market at 2025 West Larpenteur Avenue, Falcon Heights, Minnesota described as: The South 765 feet of the parcel of land which consists of the West 20 acres of the East- half of the Southwest Quarter and the East 15 acres of the West half of the Southwest Quarter, all in Section 16, Township 29, Range 23 of Ramsey County, Minnesota; except the East 131 feet of the South 186 feet of said West 20 acres and except the West 60 feet of said East 15 acres (subject to roads and easements) And Except the South 765 feet of the part East of the West 60 feet and exce{~t the South 522 feet of the West 60 feet of the following described tract: The South 15 acres of West 20 acres of the East half of the Southwest Quarter and the East 15 acres of the West half of the Southwest Quarter (subject to roads and easements) in Section 16, Township 29, Range 23 of Ramsey County, Minnesota All persons who desire to speak on this issue are encouraged to attend and will be given an opportunity to be heard at this meeting. Additional information can be obtained by contacting the City of Falcon Heights at (651) 792-7600. Dated: February 2, 2005. //~~ • Heather Worthington, City A`Elministrator/Clerk City of Falcon Heights, Minnesota Falcon Heights Planning Commission 2004-2005 Review of the City Zoning Code (Chapter 9) • First Phase Summary To Date: February 22, 2005 Major areas of discussion to date • Does our code realistically and appropriately balance today's desire for larger homes and garages with the community esthetic of green space? What effects do the limits we have set - on setback, lot coverage, height, legal uses -have on the value of properties and on quality of life? • Are our height restrictions in all zones reasonable and realistic, given the movement toward increased population density in the inner suburbs of the metro? We have already made exceptions in the SE Corner P.U.D.; what additional pressures and changes will come to bear in the next 15 to 20 years? What would be the impact on our infrastructure (streets, sewers, etc.)? This is related to the preceding item. • Does our sign code adequately reflect the needs and standards of the community now? Are there gaps we need to address -such as businesses that have a "front" in the back, or churches in residential zones? Are our size restrictions appropriate? • Is the B-3 designation appropriate for the property at the southwest corner of Snelling and • Larpenteur, now occuped by TIES? • We have very little in our Code that addresses rental of single-family housing. Do we need to institute some controls in the form of permits, inspections or certificates of occupancy? Are there other restrictions that should be considered for single-family rentals? • None of us take public safety for granted in the way we did before September 11, 2001. Are there any public safety issues that need to be addressed in our zoning code? • Do we need to change the language for variances, appeals or other parts of Section 15 of Chapter 9? Are our standards in line with other Cities in Minnesota? Do we need to place a time limit on variances? • Design review - is this a concept whose time has come in Falcon Heights? Or we better off with the minimum regulation on "esthetics" that we now have? • Are there sections of the zoning code that are outdated and may need to be eliminated or recast? (Example: public telephone booths, basement storage in B3) • Have new technology and changing life styles introduced issues related to our zoning code that are covered inadequately or not at all? (Example: satellite TV dishes, wireless Internet, cell phone towers, housing of non-traditional and extended families) • • To what extent are the provisions of our code for the B-1 zone (neighborhood business) based on what was already in existence at the time the code was written? How many of these Falcon Heights Planning Commission -February 22, 2005 properties are non-conforming now? How well does this section serve us for future usage of these sites? (These questions can be applied to all our business zones as well.) Research areas noted to date • List of definitions - find a more up-to-date model/boilerplate • Height restrictions in similar communities • SIC definitions: are they still in use or have they been replaced? • Bus bench ordinances in other cities • Sign ordinance in other cities -organization and size allowances • Regulation of rental housing, especially single family housing, in other cities • Background on elements of the Housing Code (Chapter 10) • Storage, especially rental of storage space, in other city codes. • Variance language in other cities • • Falcon Heights Planning Commission -February 22, 2005 From Minnesota Statutes http://www.revisor.leg.state.mn.us/stats/394/ 394.27 Creation and duties of a board of adjustment Subd. 7. Variances; hardship. The board of adjustment shall have the exclusive power to order the issuance of variances from the terms of any official control including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control in cases when there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control, and when the terms of the variance are consistent with the comprehensive plan. "Hardship" as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under the conditions allowed by the official controls; 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. Economic considerations alone shall not constitute a hardship if a reasonable use for the property exists under the terms of the ordinance. Variances shall be granted for earth sheltered construction as defined in section 216C.06, subdivision 14, when in harmony with the official controls. No variance maybe granted that would allow any use that is prohibited in the zoning district in which the subject property is located. The board of adjustment may impose conditions in the granting of variances to insure compliance and to protect adjacent properties and the public interest. The board of adjustment may consider the inability to use solar energy systems a "hardship" in the granting of variances. Excerpt: Robbinsdale City Code (Zoning) Section 535 - Zoning: administration and enforcement 535.05. Variances and appeals. Subdivision 1. Authori .The city council, upon receipt of the recommendation of the planning commission, shall have the authority to consider and grant variances to the provisions of this code where it finds: (a) that undue hardship or practical difficulties would result from the strict application of the provisions of these regulations; and (b) that the granting of the variance will permit the accomplishment of the purposes of this code. The city council, upon receipt of the recommendation of the planning commission, shall have the authority to review and rule upon appeals upon the part of any affected property owner where it is alleged that there has been an error in the interpretation or application of the provisions of this code. Subd. 2. Application. Requests for review and approval of variances or consideration of appeals shall be submitted by the applicant to the city staff upon an approved application form. Requests shall be submitted a minimum of four weeks prior to the planning commnission meeting at which formal action is requested. A certificate of survey showing existing and proposed structures, if any, shall be submitted with all variance requests. Subd. 3. Application fee. Submission of a request for a variance or an appeal shall be accompanied by a fee as established by subsection 535.15 of this code. Subd. 4. Review and approval. (a) Requests for consideration of variances and appeals shall be reviewed by the planning commission, which shall hold public hearings on the items. (b) Individual notices of the public hearing shall be mailed to each owner of record of property located within three hundred fifty feet of the exterior boundaries of the affected property at least ten days prior to the public hearing. Failure of a property owner to receive said notice shall not invalidate any proceedings set forth in this code provided a bona fide attempt has been made to comply with this section. (c) It shall be the duty of the city staff, upon submission of a request for a variance or appeal, to prepare a report on the request for the use of the planning commission and city council. Copies of the report and the submissions of the applicant shall be provided to the planning commission at least five days prior to the scheduled public hearing. Upon presentation at the public hearing, the report shall be entered in and made part of the record of the public hearing. (d) The planning commission shall hold the public hearing on the request as scheduled. The planning commission shall consider the report and recommendation of city staff along with the comments of any members of the public in attendance. The planning commission shall have the authority to request additional information of the applicant, or to obtain expert testimony at the • expense of the applicant. (e) In considering a request for physical variances, the planning commission shall • make specific findings of fact based upon the evidence and testimony presented regarding whether: (1) It has been demonstrated that the granting of the variance is in keeping with the spirit and intent of this code and will not alter the essential character of the locality. (2) That strict enforcement of the literal provisions of this code causes undue hardship. (3) That the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls. (f) In considering requests for appeals, the planning commission shall make specific findings of fact based upon the evidence and testimony presented regarding whether: (1) the interpretation or application of the provisions of this code, in the specific instance cited, was or was not consistent with the intent of this code; and (2) the interpretation or application of the provisions of this code, in the specific instance cited, was or was not consistent with the manner of interpretation or application of the same provisions in other specific, demonstrable situations. • (g) After due deliberation, the planning commission shall formally act upon the requested variance or appeal in one of the following manners. (1) recommend approval of the variance request or appeal, as submitted, to the city council; (2) recommend approval of the variance request or appeal, with modifications or conditions, to the city council; (3) recommend denial of the variance request or appeal to the city council; (4) postpone action on the variance request or appeal to the next regular meeting of the planning commission or such later date as agreed to by the applicant; or (5) table action on the variance request or appeal, but only with the consent of the applicant. (h) With the exceptions of action to postpone or table, the recommendation of the planning commission shall be forwarded to the city council for its consideration. In such case that the planning commission acts to postpone consideration of the variance request or appeal, the applicant shall be provided with a written statement of the reasons for such action. A variance request shall not be postponed more than once without the consent of the applicant and shall always be postponed to the next regular meeting of the planning commission or such • later date as agreed to by the applicant. Following initial postponement or failure of the applicant to agree to a satisfactory later date and upon request by the applicant, the planning commission shall forward the variance appeal to the city • council for consideration. In such instances, the planning commission may forward the matter with or without a recommendation. The planning commission shall have the authority to table consideration of a variance or appeal for the second time only with the consent of the applicant. Thereafter, the planning commission shall take up consideration of the variance or appeal at any regular meeting requested by one of its members or by the applicant. (i) Upon receiving the reports and recommendations of the planning commission and city staff, the variance or appeal request shall be placed on the agenda of the next regular city council meeting, but no sooner than 20 days, unless the request is for R-1 district property and there is no dissenting vote by the planning commission. Said reports and recommendations shall be entered in and made a part of the permanent written record of the city council meeting. (j) The city council shall have the option to set and hold a second public hearing as part of its deliberations on the request. If the city council determines to hold a public hearing, the notice requirements of subsection 535.05, subdivision 4(b) shall be followed. The city council retains the authority to question the applicant or his authorized representative regarding the proposal, to request additional information of the applicant or to obtain expert testimony. (k) After due deliberation, the city council shall formally act upon the proposed variance in one of the following manners: • (1) Approve the variance request or appeal as submitted; (2) Approve the variance request or appeal with modifications or conditions; (3) Disapprove the variance request or appeal; (4) Postpone action on the variance request or appeal to the next regular meeting of the city council or at such later date as agreed to by the applicant; or (5) Table action on the variance request or appeal, but only with the consent of the applicant. (1) Action by the city council approving, approving with modifications, or disapproving a variance request or appeal shall require a majority vote of the full city council. The applicant shall be provided with written documentation of the city council's action, substantiating the reasons for the council's decision. In such instance that the city council acts to postpone consideration of the variance or appeal, the applicant shall be provided with a written statement of the reasons for such action. A variance or appeal shall not be postponed more than once without the consent of the applicant and shall always be postponed to the next regular meeting of the city council or such later date as agreed to by the applicant. Following initial postponement or failure of the applicant and city council to agree to a satisfactory later date and upon request by the applicant, the city • council shall act upon the variance or appeal. Failure of the city council to do so shall automatically be deemed to constitute disapproval. The city council with the consent of the applicant, shall have authority to table consideration of a variance • or appeal. Thereafter, the city council shall take up consideration of the variance or appeal at any regular meeting requested by one of its members or by the applicant. Action by the city council postponing or tabling a variance or appeal shall require a simple majority vote of those present. (m) Consideration after denial. Whenever an application for a variance or appeal has been considered and denied by the city council, a new and substantially identical application for a variance or appeal affecting the same property shall not be considered again by the planning commission or city council for at least six months from the date of its denial. For good cause shown, the city council may, by majority vote of all its members, permit such a new application to be considered prior to the expiration of such period. Subd. 5. Lapse of variance or appeal. Whenever within one year after granting a variance or appeal, or two years if a legally binding development agreement has been executed between the applicant and the city for non-income producing single family residential dwellings, the work as permitted by the variance or appeal shall not have been completed, then such variance or appeal shall become null and void unless a petition for extension of time in which to complete the work has been granted by the city council. Such extension shall be requested in writing and filed with the city at least 20 days before the expiration of the original variance or appeal. There shall be no charge for the filing of such petition. The request for extension shall state facts showing a good faith attempt to complete the work permitted in the variance or appeal. Such petition shall be presented to the city council for a decision. Subd. 6. Performance bond. (a) Except in the case ofnon-income producing residential property, upon approval of a variance or appeal, the city shall be provided with a surety bond prior to the issuing of building permits or initiation of work on the proposed improvements or development. Said bond shall guarantee conformance and compliance with the conditions of the variance or appeal and the codes and ordinances of the city. (b) The surety bond shall be in the amount of the city engineer's or city building inspector's or both estimated costs of labor and materials for the proposed improvements or development. (c) The city shall hold the surety bond until completion of the proposed improvements or development and a certificate of zoning compliance indicating compliance with the variance or appeal and codes and ordinances of the city has been issued by the city building inspector. (d) Failure to comply with the conditions of the variance or appeal or the codes and ordinances of the city or both shall result in forfeiture of the bond. ~~~rn oU~-~l~ • SECTION 21030 -ADMINISTRATION -VARIANCES 21030.01. PURPOSE: The purpose of this section is to provide for deviations from the literal provisions of this Chapter in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of this Chapter. 21030.02. BOARD OF ZONING ADJUSTMENTS AND APPEALS: Subd. 1. Board Designation. The City Council shall act as the Board of Zoning Adjustments and Appeals. 21030.03. REVIEW CRITERIA: Subd. 1. The Board and Zoning Administrator shall not approve any variance application (major or minor) unless they find failure to grant the variance will result in undue hardship on the applicant, and, as may be applicable, all of the following criteria have been .met: • (a) That because of the particular physical surroundings, shape, or topographical conditions of the specific parcel of land involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out. (b) That the conditions upon which a petition for a variation is based are unique to the parcel of land for which the variance is sought and are not applicable, generally, to other property within the same zoning classification. (c) That the purpose of the variation is not based exclusively upon a desire to increase the value or income potential. of the parcel of land. (d) That the alleged difficulty or hardship is caused by this Chapter and has not been created by any persons having an interest in the parcel of land and is not aself-created hardship. (e) That the granting of the variation will not be detrimental to the public welfare or injurious to other Land or improvements in the neighborhood in which the parcel of land is located. (f) That the proposed variation 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, or substantially diminish or impair property values within the neighborhood. ?1030-1 • (g) That the requested variance is the minimum action required to eliminate the hardship. 21030.04. PROCEDURES: Pursuant to Minnesota Statutes 15.99, an application for a variance shall be approved or denied within sixty (60) days from. the date of its official and complete submission unless extended pursuant to Statute or a time waiver is granted by the applicant. Additional City requirements are as follows: (Amended by Orcl. No. 2004-02, 01113/04) Subd.l. Classifications. (a) Minor Variance. (1) Purpose. The purpose of this section is to provide for an expeditious method of processing variance requests which are defined as minor. (2) Qualification. a. Cases where hardship to existing buildings or platted property are created as a result of public action or change in ordinance standards. b. Structure or setback deviations which are characteristic of and common to neighboring uses and which do not exceed atwenty-five (2S} percent departure from any standard of this Chapter as applied to a specific piece of property. c. A minor variance procedure shall not be applicable or include any proposals involving signage, fencing, shoreland, wetland, or floodplain. (b) Major Variances. All variances which are not classified as "minor" shall be deemed "major" variances. Subd.2. Processing. (a) Minor Variances. (1} Requests for a minor variance shall be filed with the Zoning Administrator on an official application form. The applicant's signature shall be provided on the application form. Additionally, if the applicant is not the fee owner of the property, the fee owner's signature shall also be provided on the application form, or the applicant shall provide separate written and signed authorization for the application from the fee owner. Such application shall be accompanied by a fee as set forth by the City Code. This fee shall not be refunded. The application shall be considered as being officially submitted complete when the applicant has complied. with all the specified informational requirements, which shall include the following: (Amended by Ord. Nc~. 2004-02, 01/13/04) 21030-2 . a. A written description of the request for the minor variance, including an explanation of compliance with the variance criteria set forth in this section. b. Supporting materials, as outlined in Section 21045.07 of this Chapter, as determined by the Zoning Administrator as applicable to be necessary for the complete and clear definition and understanding of the request. (2) The Zoning Administrator shall have the authority to request additional information from the applicant concerning operational factors or to retain expert testimony with the consent and at the expense of the applicant concerning operational factors, said information to be declared necessary to establish performance conditions in relation to all pertinent sections of this Chapter. (3) When appropriate, the Zoning Administrator shall instruct the appropriate staff persons to prepare technical reports. (4) The Board shall grant to the Zoning Administrator the right to approve the minor variance upon determining that the criteria outlined. in Section 21030.03, Subd. 1 have been satisfactorily met. (5) Notice of such minor variance approval shall be sent by the Zoning . Administrator to all adjoining property owners within two hundred (200) feet of the boundary of the property in question. (t) The. notice shall specify that any written objections to the approved minor variance be received by the Zoning Administrator within fourteen (14) days of the mailing. if any written objection of a substantive nature is .received within. fourteen (14) days and .is unresolved between the author and the Zoning .Administrator, the final approval of the requested minor variance, as well as any minor variance which. is rejected by the Zoning Administrator, shall be referred to the Board and proceed according to the provisions of Section 21.030.04, Subd. 2 (b) of this Chapter. (b) Major Variances. (1) Requests for a major variance shall be filed with the Zoning Administrator on an official application form. The applicant's signature shall be provided on the application form. Additionally, if the applicant is not the fee owner of the property, the fee owner's signature shall also be provided on the application form, or the applicant shall provide separate written and signed authorization for the application from the fee owner. Such application shall be accompanied by a fee as set forth by the City Code. This fee shall not be refunded. The application shall be considered as being officially submitted complete when the applicant has complied with all the specified informational requirements, which shall include the following: (Amended by Otd. No. ?D04-D2, 01/13/04) • 21030-3 a. A written description of the request for the major variance, including an explanation of compliance with the variance criteria set forth in this section. b. Supporting materials, as outlined in Section 21045.07 of this Chapter, as determined by the Zoning Administrator as applicable to be necessary for the complete and clear definition and understanding of the request. (2) Upon receipt of a complete application, as determined by staff review, and following preliminary staff analysis of the application and request, the Zoning Administrator, when appropriate, shall establish a time and place for consideration by the Planning Commission. At least ten (10) days before the date of the meeting, a written notice of the meeting shall be mailed to the applicant and to all other owners of property located within two hundred (200) feet of the boundaries of the property which is the subject of the application. (3) Failure of a property owner to receive notice shall not invalidate any such proceedings as set forth within this Chapter. (4) The Zoning Administrator shall instruct the appropriate staff persons to prepare technical. reports where appropriate, and provide general assistance in preparing a recommendation on the action to the Board. • (5} The Planning Commission. and Zoning Administrator. shall have the authority to request additional. information from the applicant concerning operational factors or to retain expert testimony with the consent and at the expense of the applicant concerning operational factors, said information to be declared necessary to establish performance conditions in relation to all. pertinent sections of this Chapter. (6) The applicant or a representative thereof may appear before the Planning Commission in order to present and answer questions concerning the proposed request. (7} The Planning Commission shall make a finding of fact and make a recommendation on such actions or conditions relating to the request as they deem necessary to carry out the purpose of this Chapter. Such recommendations shall be in writing and accompanied by the report and recommendation of the City staff. (8) The Board shall not act upon the request until they have received a report and recommendation from the Planning Commission and the City staff or until sixty (60) days after the first regular Planning Comnssion meeting at which the request was considered. (9) Upon receiving the report and recommendation of the Planning • Comnssion and. the City staff, the City Manager shall schedule the application 21030-4 for consideration by the Board. Such reports and recommendations shall be entered in anal made part of the permanent written record of the Board meeting. (10) Upon receiving the report and recommendation of the Planning Commission and the City staff, the Board shall have the option to set and hold a public hearing if deemed necessary and shall make a recorded finding of fact and may impose any condition they considered necessary to protect the public health, safety and welfare. (11) If, upon receiving said reports and recommendations of the Planning Commission and City staff, the Board finds that specific inconsistencies exist in the review process and thus the final determination of the Board will differ from that of the Planning Commission, the Board may, before taking final action, refer the matter back to the Planning Commission for further consideration. The Board shall provide the Planning Commission with a written statement detailing the specific reasons for referral. This procedure shall be followed only one time on a singular action. (12} Approval of a request shall require passage by a majority vote of the entire Board. (13) In granting any major variance under the provisions of this section., the Board shall designate such conditions in connection therewith as will, in .its • opinion, secure substantially the objectives of the regulations or provisions to which the adjustment or variance is granted, as to light, air, and the public health, safety, comfort, convenience and general welfare. (14} In all. cases where major variances are granted under the provisions of this section, the Board shall .require such evidence and guarantee as .it may deem necessary to insure compliance with the conditions designated in connection therewith.. (l.5) The Zoning Administrator shall serve a copy of the final order of the Board upon the petitioner by mail. (16) Whenever an application for a major variance has been considered and denied by the Board, a similar application for a variance affecting substantially the same property shall not be considered again by the Planning Commission or Board for at least six (6) months from the date of its denial; and a subsequent application affecting substantially the same property shall likewise not be considered again by the Planning Commission or Board for an additional six (6) months from the date of the second denial unless a decision to reconsider such matter is made by a majority vote of the full Board. 21030.05. APPEAL OF BOARD RULING: Any person or persons, any private or public board, or taxpayer of the City aggrieved by any decision of the Board shall have the right to seek • review of the decision with a court of record in the manner provided by the laws of the State of 21030-5 . Minnesota, and particularly Minnesota Statutes, Chapter 462, as such statutes may be from time to time amended, supplemented or replaced. 21030.Ob. EXPIRATION: Unless the Board 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 Board, unless the applicant commences the authorized use or improvement within one (1) year of the date the variance is issued; or, unless before the expiration of the one (1) year period; the applicant shall apply for an extension thereof by completing and submitting a request for extension, including the renewal fee as set forth in the City Code. 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 (1) year shall be subject to the review and approval of the Zoning Administrator. On matters involving a major variance approval, should a second extension. of time or any extension of time longer than one (1) year be requested by the applicant, it shall be presented to the Planning Commission for a recommendation and. to the Board for a decision. 21030.07. SITE IMPROVEMENT PERFORMANCE AGREEMENT AND FINANCIAL GUARANTEE: Following the approval of a variance as required by this Section and prior to the issuing of any building permits or the commencing of any work, the applicant as may be applicable shall guarantee to the City the completion of all. private exterior amenities as shown on the approved. site plan and as required by the variance approval. The guarantee shall. be made by means of a site improvement performance agreement and a financial guarantee as specified in Section 21045 of this Chapter. 21030.08. CERTIFICATION OF TAXF..S PAID: Prior to approving an application for a variance (major or minor), the applicant shall provide certification to the City that there are no delinquent property taxes, special. assessments, interest, or City utility fees due upon the parcel of land to which the variance application relates. 21030-6 Bloomington City Code Chapter 2 page 5 Page 1 of 11 ~' ~II Preface I I. Charter I II. Code I SEARCH II < Back I Forward > II Part II. Code Chapter 2. ADMINISTRATION Section 2.98.01. VARIANCES. (a) The Planning Commission is hereby empowered to act as a board of appeals and adjustments pursuant to the provisions of M.S.A. Sections 462.354, subd. 2; 462.357, subd. 6; and 462.359, subd. 4. (b) Powers and Duties. The Planning Commission shall have all the powers and duties prescribed by law and by this Division, including the following: (1) Upon appeal from a decision of the Issuing Authority, to decide any questions involving the interpretation of the Zoning Code including the determination of the location of district boundaries. (2) To vary or adapt the strict application of any of the requirements of the Zoning Code in the case of exceptional, irregular, narrow, shallow, or steep lots or other exceptional physical conditions whereby strict application would result in practical difficulty or unnecessary hardship which would deprive the owner of the reasonable use of the land or of the building involved. (3) To prescribe any conditions for granting any variance which it deems to be necessary or desirable. No variance from the'~trict application of any of the provisions of this Code shall be granted by the Commission unless it finds as follows: (A) That, for reasons which are to be set forth in the findings, the variance is necessary for reasonable use of the land or building and that the variance as approved by the Commission is a minimum variance which will accomplish this purpose. (B) That granting the variance will be in harmony with the general purpose and intent of this Code and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. (C) That the special condition or circumstance is not the result of actions of the applicant. (D) That nonconforming use of neighboring lands, structures, or buildings in the same district is not the sole grounds for issuance of the variance. (E) Variances in size, placement, and number of signs - no variance may be granted in the size, placement, or number of signs, as described in Chapter 19 of this Code, unless the following is found: (i) Size - (I) That sign will have an appearance which will not adversely affect or detract from neighboring property. (II) That the sign will be of such size that it will not deter or affect the motoring public on roads or highways adjacent to the placement http://www.ci.bloomington.mn.us/code/Code2_S.html 2/17/2005 Bloomington City Code Chapter 2 page 5 of the sign. (III) That, because of the topographic and physical conditions of the land, structures, or • surrounding built-up area, strict enforcement of Chapter 19 of this Code would deprive the applicant of the reasonable use of a sign for the purpose of advertising his business to the public. (ii) Placement - (I) That the placement of the sign will not be at a location which will have an adverse affect in appearance, height, or location on neighboring properties. (II) That the placement of the sign will not be at a location which will adversely affect, deter, or detract the motoring public on adjacent streets or highways. (Itl) That strict compliance with the provision of Chapter 19 of this Code relating to the placement of signs would deprive the applicant of the reasonable use of the sign for such land or building. (IV) That, because of the topographic or physical conditions relating to the land, structure, or surrounding built-up areas, strict enforcement of the placement of a sign under Chapter 19 of this Code would result in depriving the applicant of a reasonable placement of the sign on the land or building consistent with the purpose of the sign. (iii) Number - no variance may be granted in the number of signs as set forth in Chapter 19 of this Code except that additional signs may be used as long as the surface area of the multiple signs does not exceed the surface area for the permitted signs as set forth in Chapter 19 and those findings as set forth in paragraphs (A) and (B) above, where applicable, are found by the Commission. (c) Appeal to the Commission. The applicant; any occupant or owner of property adjacent to the premises in question; or any person who, in the judgment of the Commission, is affected by the interpretation of the Issuing Authority may appeal to the Commission. (d) Application. Application made to the Commission shall be in writing on forms prescribed by the Commission. Each application shall refer to the specific provisions of the Zoning Code involved and shall set forth the exact interpretation that is claimed by the applicant, the details of the variance requested, and the grounds on which it is claimed that the variance should be granted. (e) Notice of Hearing. No action shall be taken by the Commission on any case until notice has been given and a public hearing has been held. Written notice shall be mailed to the applicant and, so far as is practicable, to the affected property owners at least ten days prior to the date of the hearing. If the application pertains to a variance within the Floodplain District, notice shall also be given to the Minnesota Department of Natural Resources at least ten days prior to the date of the hearing. (f) Decision of the Commission. (1) The Commission shall have the power to vary or adapt the strict application of any of the requirements of the Zoning Code in the case of exceptional, irregular, narrow, shallow, or steep lots or Page 2 of 11 http://www.ci.bloomington.mn.us/code/Code2_S.html 2/17/2005 Bloomington City Code Chapter 2 page 5 other exceptional physical conditions whereby strict application would result in practical difficulty or unnecessary hardship which would deprive the owner of the reasonable use of the land or building • involved. (2) An affirmative vote of a majority of all the members of the Commission is required to reverse any order, requirement, decision, or determination of the Issuing Authority or to decide in favor of the applicant on any matter upon which it is required to pass under this Division. (3) A copy of the decision and findings shall be forwarded as soon as is practicable to the City Clerk who shall maintain a record thereof. Unless made at the close of the hearing, written notice of the findings and decisions of the Commission shall be mailed to the applicant and such other persons as, in the opinion of the Commission are affected by the decision. (g) Council Review. (1) All decisions of the Commission which grant, deny, or modify a variance application or any other decision relative to the variance application shall be reported to the City Council at the earliest practicable time. The Council shall either affirm, modify, or overrule the decision and shall state the reasons for such action.ln the event of affirmance, the Council may adopt the findings, reasons, and decisions of the Commission. (2) The Council shall make its decision based upon the record as made by the Commission. The Council may elect to hold a new hearing and shall do so upon notice of appeal of the Commission decision. Notice of such hearing shall be given as set forth in Subsection (e) above. . (h) Administrative Hearing Procedure. Notwithstanding any of the provisions of this Code, a hearing examiner, in accordance with Chapter 2, Article II, of this Code, shall hear certain variance requests pursuant to said Article. (i) "Variance Board." Notwithstanding any provision of this Code, any Section therein referring to the "Variance Board" shall be deemed to refer to the Planning Commission. (Code, 1975, Added by Ord. No. 79-10, 2-5-79) Division D. Parks, Arts and Recreation Commission Added by Ord. No. 79-28, 4-23-79 Amended by Ord. No. 95-6, 5-1-95 Amended by Ord. No. 98-25, 6-1-98 Section 2.98.10. ESTABLISHMENT. There is hereby established a commission to be advisory to the City Council to be known as the Parks, Arts and Recreation Commission, which commission shall be organized and have the duties as set forth in this Division. (Amended by Ord. No. 95-6, 5-1-95; Ord. No. 98-25, 6-1-98) Section 2.98.11. PURPOSE, DUTIES, AND Page 3 of 11 http://www.ci.bloomington.mn.us/code/Code2_S.html 2/17/2005 This opinion will be unpublished and may not be cited except as provided by Minn. Stat. ~¢ 480A. 08, subd. 3 (2002). STATE OF MINNESOTA IN COURT OF APPEALS C7-02-1395 Randy Nelson, et al., Respondents, vs. Wilson Township Board of Adjustment, et al., Respondents-Below, Dean Morgan, Appellant. Filed April 1, 2003 Reversed . Willis, Judge Winona County District Court File No. C 101349 Michael D. Bernatz, Bernatz & Gort, LLC, The Choate Building, 53 East Third Street, Suite 303, P.O. Box 7, Winona, MN 55987-0007 (for respondents) Cindy K. Telstad, Streater & Murphy, P.A., 64 East Fourth Street, P.O. Box 310, Winona, MN 55987-0310 (for appellant) Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge. UNPUBLISHED OPINION WILLIS, Judge Appellant challenges the district court's order vacating a zoning variance. Because • we conclude that the decision of the Wilson Township Board of Adjustment to grant the variance was reasonable and was not arbitrary or capricious, we reverse. Randy Nelson, et al., Respondents, vs. Wilson Townshop Board of Adjustments, et al... (2002) page 2 FACTS • Appellant Dean Morgan agreed to bu ,and Thomas Holma a eed to sell 2 Y y gr , 1 acres of land zoned "Agricultural-Natural Resource" (ANR). The purchase agreement was contingent on Morgan receiving a variance to allow the division of the property into three building sites. Morgan and Holmay jointly applied to the Wilson Township Board of Adjustment for a variance from Wilson Township Zoning, Planning, and Building Ordinance § 603.2(13) (1996), which provides that no more than a single "one (1) family or a single two (2) family non-farm dwelling[ ] * * * shall be allowed per quarter-quarter section of land (approximately 40 acres) * * * ." Morgan and Holmay sought a variance to allow construction of three non-farm dwellings after dividing the land into two five- acre parcels and one 11-acre parcel. After public hearings, the board granted the variance. Respondents challenged the grant of a variance in the district court. After a hearing, the district court issued an order "vacating and annulling" the grant of the • variance, concluding that (1) there were no exceptional circumstances that make the land unsuitable for permitted uses and (2) the board's "[f]ailure to consider a single dwelling as a `reasonable use' * * * prevents a reasonable determination that a `hardship' warrants a variance * * * ." This appeal follows. DECISION Appellate review of zoning decisions is limited to determining whether the local zoning authority's action was reasonable. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981). This court will set aside the local authority's decision if the decision is unreasonable, and reasonableness is measured by the standards set out in the zoning ordinance. Rowell v. Bd. ofAdjustment, 446 N.W.2d 917, 921 (Minn. App. 1989), review denied (Minn. Dec. 15, 1989). We make an independent examination of the local authority's record and decision, without deference to the district court's review of the same record. City of Barnum v. County of Carlton, 394 N.W.2d 246, 248 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986). We examine the local authority's decision to determine whether it was arbitrary or capricious or whether the reasons given for the Randy Nelson, et al., Respondents, vs. Wilson Townshop Board of Adjustments, et al... (2002) page 3 decision are legally sufficient and have a factual basis. Nolan v. City of Eden Prairie, • 610 N.W.2d 697, 701 (Minn. App. 2000), review denied (Minn. July 25, 2000). Morgan argues that the board's decision was reasonable and not arbitrary or capricious because (1) the board considered the criteria set forth in the variance provision of the Wilson Township Zoning, Planning, and Building Ordinance that relates to variances and (2) the board's decision satisfies Minn. Stat. § 394.27, subd. 7 (2002), which defines a "hardship" for which a variance may be granted. Section 506.1 of the Wilson Township Zoning, Planning, and Building Ordinance provides that a variance may be granted only in the event that the following circumstances exist: (1) Exceptional or extraordinary circumstances apply to the property which do not apply generally to other properties in the same zone or vicinity, and results from lot size or shape, topography, or other circumstances over which the owners of property since enactment of this Ordinance have had no control. • (2) That literal interpretation of the provisions of this ordinance would deprive the applicant of rights enjoyed by other properties in the same district under the terms of this Ordinance. (3) That the special conditions or circumstances do not result from the actions of the applicant. (4) That granting the variance requested will not confer on the applicant any special privilege[s] that are denied by this Ordinance to owners of the other lands, structures, or buildings in the same district. (5) The variance requested is the minimum variance which would alleviate the hardship. (6) The variance would not be materially detrimental to the purpose of this Ordinance, or to property in the same zone. (7) Economic conditions or circumstances alone shall not be considered in the granting of a variance request. Randy Nelson, et al., Respondents, vs. Wilson Townshop Board of Adjustments, et al...(2002) page 4 (8) No variance shall have the effect of allowing in any district uses prohibited in the district, permit a lower degree of flood protection than the Regulatory Flood Protection Elevation for the particular area, or permit standards lower than those required by State Law. Minnesota law provides that "hardship" means that the property in question cannot be put to a reasonable use if used under the conditions allowed by the official controls; 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. § 394.27, subd. 7 (2002). Morgan argues that the board's findings on the criteria are legally sufficient and have a factual basis. Respondents argue that the decision was arbitrary and capricious because the board failed to comply with section 506.1. Respondents also contend that Morgan and Holmay failed to satisfy the requirement for a showing of hardship under Minn. Stat. § 394.27, subd. 7. We conclude that the minutes of the board's January 30, 2001 meeting and the text of the February 12, 2001 grant of a variance show that the board gave thorough consideration to the criteria set forth in section 506.1. 1. Exceptional or Extraordinary Circumstances Section 506.1 requires that for a grant of a variance, exceptional or extraordinary circumstances must apply to the property, circumstances over which the owners of the property since enactment of the Wilson Township Zoning, Planning, and Building Ordinance have had no control. The board found exceptional circumstances here because, although the land is zoned ANR, only five or six acres are suitable for agriculture. The board also found that the land is unsuitable for permitted conditional uses of ANR land, such as recreational uses. The record supports the board's findings; aerial photographs show that all 21 acres are sloped and approximately 14 acres are heavily forested. The exceptional circumstances that the board found result from the natural condition of the land. Randy Nelson, et al., Respondents, vs. Wilson Townshop Board of Adjustments, et al... (2002) page 5 2. Deprivation of Rights • A grant of a variance under section 506.1 also requires that a literal interpretation of the ordinance would deprive the applicant of rights enjoyed by other properties in the same zoning district. The board found that a literal interpretation of the ordinance would deprive Morgan and Holmay of rights enjoyed by other properties in the same district because, apart from the parcel at issue here, there are multiple non-farm dwellings per quarter-quarter section of land in the ANR district. The record supports that finding. 3. Special Conditions/Circumstances Not Result of Actions of Applicant Section 506.1 further requires that the special conditions or circumstances do not result from actions of the applicant. The board found that the circumstances are the result of the natural condition of the land and not of the actions of Holmay or Morgan, and nothing in the record suggests otherwise. 4. Special Privileges Under section 506.1, a grant of a variance may not confer on the applicant any • special privilege not enjoyed by owners of the other lands, structures, or buildings in the same district. The board found that, because there are multiple non-farm dwellings per quarter-quarter section of land in the ANR district, granting the variance would confer no special privileges on Morgan and Holmay. As noted earlier, the record shows that there are multiple non-farm dwellings per quarter-quarter section of land in the ANR district. 5. Minimum Variance Section 506.1 requires that the variance requested is the minimum variance that would alleviate the hardship. The board found that Morgan and Holmay requested the minimum variance because most of the land is unsuitable for agriculture or for any of the conditional uses for ANR land permitted by the zoning ordinance. To comply with the requirements for hardship set forth in Minn. Stat. § 394.27, subd. 7, it must be shown that (1) a property owner wants to use property in a reasonable manner that is prohibited by the zoning ordinance, (2) there are circumstances unique to the property that were not created by the landowner, and (3) granting the variance will not alter the essential i character of the locality. Rowell, 446 N.W.2d at 922. Randy Nelson, et al., Respondents, vs. Wilson Townshop Board of Adjustments, et al... (2002) page 6 Morgan's proposed use of the 21 acres is reasonable because the board found that • there are already multiple non-farm dwellings per quarter-quarter section of land in the ANR district. Further, the division of the property into three parcels is a reasonable use because Holmay and Morgan intend a minimum lot size of five acres, well in excess of the one-acre minimum that section 603.5(5) of the Wilson Township Zoning, Planning, and Building Ordinance specifies. The requirement that the unique circumstances of a parcel for which a variance is sought not be created by the landowner is satisfied because, as noted earlier, the board found that the unique circumstances are the result of the land's natural condition rather than any condition that Holmay created. Finally, the area in which the property is located is a mix of residential, agricultural, and undeveloped land. Building three non-farm dwellings on 21 acres will not, therefore, alter the essential character of the locality. Respondents argue that the board made no finding on this factor. But the board made a finding regarding the • existence of multiple non-farm dwellings per quarter-quarter section of land in close proximity to the parcel for which Morgan and Holmay sought a variance, and the record supports that finding. 6. Materially Detrimental to Purpose of Ordinance or to Other Property Under section 506.1, a variance may not be materially detrimental to the purpose of the Wilson Township Zoning, Planning, and Building Ordinance or to other property in the same zone. The board found that the variance is not materially detrimental to either, again citing the presence of multiple non-farm dwellings per quarter-quarter section of land near the parcel for which Morgan and Holmay sought a variance. Respondents argue that the variance is contrary to the township's comprehensive plan because the plan addresses "a concern for the protection of natural resources * * * ,particularly the * * * woodlands and bluffs." See Minn. Stat. § 394.27, subd. 7 (requiring that "the terms of the variance are consistent with the comprehensive plan"). ANR land exists "for the purpose of protecting, promoting, maintaining and enhancing the use of land for agricultural and timber harvesting purposes * * * ." Wilson Township Zoning, Planning, and Building Ordinance § 603.1. But the comprehensive plan also recognizes that there is a "need for residential Randy Nelson, et al., Respondents, vs. Wilson Townshop Board of Adjustments, et al... (2002) page 7 expansion" and that decisions about future urban growth "will have an impact on the • amount of prime agricultural land taken out of production [and] the natural resources in the township." The board found that the land at issue is not prime agricultural land. The record supports this finding and, further, nothing in the record suggests that the land is suited for timber-harvesting purposes. 7. Economic Conditions Not Sole Consideration Section 506.1 provides that economic conditions or circumstances alone may not be considered when deciding whether to grant a variance request. The board stated that "economic conditions were not considered" when it decided to grant Morgan and Holmay's variance request. Respondents argue that the only factor that the board considered was economic conditions, but they cite nothing in the record to support their contention. 8. Prohibited Uses or Lower Standards Finally, section 506.1 requires that no variance allow flood-protection standards • lower than those required by state law. The board found that the Wilson Township standards are equal to or greater than applicable county or state standards, and none of the parties disputes the board's finding on this criterion. The board's decision to grant the variance is reasonable because the board considered the criteria in the Wilson Township Zoning, Planning, and Building Ordinance. Further, the reasons given for the decision are legally sufficient and have a factual basis. The board did not, therefore, act arbitrarily or capriciously by granting a zoning variance to Morgan and Holmay to allow construction of three non-farm dwellings on the 21-acre parcel. Reversed. 1-~_ • HYPOTHETICAL CASE STUDIES FOR SMALL GROUP DISCUSSION INSTRUCTIONS This exercise includes a series of hypothetical case studies. In each case you should assume that you are planning commissioners and you are charged with making a recommendation to the governing body. Each case begins with a statement of background and assumptions. This may include either a summary of factual information, and/or practical or political characteristics surrounding the application. Although. you are free to consider any alternative course of action that you wish, please deal with the facts as presented. You should assume that the information you have is accurate, but, you may or may not have all of the information that you need to act. ® After reading through each case study, you should discuss them as a group. What are the issues? What options are available to youu? You should conclude the review- of each of these cases by making a recommendation and stating the findings that you make in supporting that recommendation. Record the action that your group chooses for review with the whole group. If you have different opinions among your group, take a vote. You may also record minority opinions for review with the whole group, if you like. • HYPOTHETICAL CASE STUDIES PAGE 1 a i '.~., CASE STUDY NUMBER 1 Suburban Residential Lot Size Variance Background: Your city is-a developing, third tier suburban community. Your comprehensive plan is eight years old. It includes ahousing-element that contains a number ofgoals related to providing opportunities. for affordable housing and supports flexibility in the. city's zoning standards for appropriate projects that promise to provide such opportunities. The application before you is for preliminary and final plat approval fora 130 lot single family subdivision. The land is zoned R-1 Single Family Residential. The muumum lot size in R-1 is 15,000 square feet. In addition. to the subdivision approval, the application also requests variances to the i~nimum lot size for 65 of the lots. The smaller lots range from 12,000 square feet down to a minimum of 10,000 square feet. You have reviewed information submitted by the developer and have visited other developments that they have built and -you. believe that these variances will, in fact, serve to provide some reduced cost in these lots. . Recommendation: Findings: HYPOTHETICAL CASE STUDIES PAGE Z r • CASE STUDY NUMBER 1 Suburban Residential Lot Size Variance STUDY QUESTIONS 1. Is a variance the correct approach to resolving the concern for affordable lots in this project? 2. What other possible approaches could be used? • 3. What could the community do to foster and encourage this type of project in the fiiture? C] HYPOTHETICAL CASE STUDIES L PACE 3 CASE STUDY NUMBER 2 • Townhouse Development with Neighborhood Concerns Background: The application before°you: is for_ approval of a preliminary: plat and a conditional use permit for a townhouse development. -The conditional use permit is required for any. building containing more than four units:. The development proposed would contain a total of 40 units in five eight-plex buildings on five acres: The land is zoned R-3 Medium Density Residential. This district allows up to twelve unit structures and a maximum density of 10 units per acre. The environmental protection chapters of your code protect all wetlands in excess of .5 acres and all woodlands mapped on the official Environmental Overlay Map. The.cite preparation.will remove a mature stand of Green Spruce between the subject property and an adjacent neighborhood. This stand of trees does not show up on the official Environmental Overlay Map, although you think this might simply have been a mistake since other woodlands that are of comparable size do show up. A small wetland area (.3 acres) will be filled and a small former dump site will be excavated and cleaned up as part of the development. Included in your background material is a copy of a letter from one of the neighboring home owners and a petition signed by 72 residents. They urge you to deny this application. They state that this high density development is fundamentally inconsistent with the character of their neighborhood. Attached to their letter is another letter from a real estate agent who states that she has been active in the real estate market in this area for many years and that in her opinion the development of this project will have a detrimental effect on the property values in the adjacent neighborhood. The neighbors also state that the traffic from this development will cause congestion on the adjacent collector street and that valuable wildlife. habitat will be destroyed as a result of this project. Recommendation: Findings: (use back of page if necessary) HYPOTHETICAL CASE STUDIES PAGE 4 CASE STUDY NUMBER 2 Townhouse Development with N. STUDY QUESTIONS borhood .Concerns 1 '~ How do the City's environmental protection ordinances relate to the is raised in this report? sues 2- What weight should be given to the neighbor's letter and accompanying petition during the review of this project? • 3. What weight should be given to the real estate agent's opinion? HYPOTHETICAL CASE STUDIES PAGE S . , ti~ • CA5E STUDY NUMBER 3 Suburban Sho in Center Out-Parcel Redevelo ment Background: Yourare a plan~ng_°commissioner in a fully developed, first.tier.suburban.eity. Your community is actively involved ul redevelopment activities, and many of the items that. come before you are redevelopment related. Your community contains a regional shopping center that is -very successful, but it also contains a much older, shopping center. Both of these centers are zoned SC -Shopping Center District. Center District calls for "a The purpose and intent section of the SC -Shopping variety of commercial uses and activities made mutually compatible through integrated site and architectural design. This section gene for flexib~ty in importance of shared access and circulation and the po _- meeting internal setbacks to increase overall design continuity. On the site ofthe older shopping center. is anout-parcel that consists of less than I/2 • acre. It has never been owned by the owners of the shopping center and, in fact, pre-dates it: For more than 10 years, there has been a service station on this lot and just recently it went out of business. The use (service station) may be permitted in the SC District through the approval of a conditional use permit, how etba ks.l The which it sits cannot be developed in accordance with the SC Distract SC District requires minimum setbacks of 60 feet on the front, side, and rear, and these setback lines would literally overlap on this small lot. This lot sits immediately in front of one of the major entrances into the old center, separated only by an internal driveway. The center ha s wh re a numberd of buses face lift and struggled back to new hfe. This entrance ou s The owners of the come to drop off and pick up senioorsuanhase this land in the past. If they could buy center have teed unsuccessfully t p lot desi and add it, they would eliminate this eyesore and improve the parking gn significant landscaping in the front of the shopping center, along a major community collector street. The application before you is for a new conditional use permit for a quick oil change franchise. It also requires setback variances from every lot line for both building all size of the arcel and the generous SC District setback and parking, given the sin P standards. The two access drives that previously connected to the adjacent collector PAGED HYPOTIIF,TICAL CASE STUDIES i. street have been consolidated into one. The proposed site plan is a definite improvement over the existing facility, with reasonable landscaping and a new building with attractive building materials. Sta~has rnet with:-both the applicants and the owners of the shopping center to see l~iis nse'could be shifted elsewhere on' the shopping:center.property,:or,if the access and circulation could be integrated. The parties are at an impasse and are unable to agree on a deal or find any mutually acceptable alternative. Recommendation: Findings: 3 i- C3~J 1 ~~~ 11 ~ `~~ ------ r' 1z- a a ~, L. ~~_ I ~~~ • 1 n~ HYPOTHETICAL CASE STUDIES PAGE 7 1 "~~ l ~,~~ CASE STUDY NUMBER 3 Suburban Shopping Center Out-Parcel Redevelopment STUDY QUESTIONS Is this:- ro osed,use a ro riate for this s ec~fic arcel'? If not, what; options are 1. P P PP P P P mailable. to the: City take. to :ensure an appropriate use? 2. Should the variance be approved, given the need for setback modifications, due to the proposed: improved character of the site .(landscaping, building materials, eliminated curb cut, etc.)? 3. What role should the City take in private negotiations with land owners? How should these matters affect your decision? • HYPOTHETICAL CASE STUDIES PAGE ~ • CASE STUDY NUMBER 4 Conditional Use Permit -- Industrial Site Redevelo ment Background: Yours is~ a small, free-standing city, located on the interstate, approximately 70 miles from the Twin Cities. Your city has a strong chamber of commerce and just two years ago, an economic development agency (EDA) was formed. This past summer, after completing all of the prerequisite requirements, your city was acknowledged as a Star City for economic development. Due to the excellent regional access that has always been available to your city, many of the land uses that have located along the freeway have been heavy industrial in character, with extensive outdoor storage and informal display. There are two contractor's yards in the area, along with the city's maintenance building and equipment storage; there is an abandoned borrow pit on the edge of the area; and the grain elevator along the railroad tracks that parallel the interstate has been abandoned for some time. On the positive side, the land immediately adjacent to the freeway has been redeveloped • into a major truck stop, service stations and convenience stores oriented to the freewa Y traffic. Over the course of the past three years, two businesses have built new, light industrial buildings in the area. The comprehensive plan guides this area for Light Industrial use, although the majority of the land is zoned General Industrial (I2). The PIan calls for the area to be converted to light industrial uses in a coordinated and orderly manner as market conditions. allow. The EDA assisted in the financing of the two light industrial developments. The application before you is for a conditional use permit for the storage of buses. The property is a 15 acres parcel that has an existing truck terminal with a metal building. There is some minimal activity still occurring at the truck terminal, however, its business is not what it once was. The site is unpaved and is used right up to the property lines, with no setbacks, no landscaping, no curbing and no drainage improvements. The truck terminal use is a legal non-conforming use and could be maintained for that use, but could not be expanded without coming into full compliance with all of the new design standards for exterior building materials, setbacks, landscaping, signage, lighting, paving, curb and gutter, and drainage improvements. • HYPOTHETICAL CASE STUDIES PAGE 9 The Ci ordinance requires a separate conditional use permit for bus terminals (as ty opposed to truck terminals). This- point is clearly stated in the report from the City Planner and reinforced by an opinion letter from the City Attorney. The Applicants have assumed that they can simply take the property over as it is, and use it with only very minimal improvements. The: landowner: is a long time-city resident and. he is furious: He has -been on the phone with the Mayor, who is a lifetime. friend, and atl of the other council members, two of whom belong to the same church and one whose daughter is best fiiends with the land owner's daughter. The star has met with the applicants and they have agreed to pave the site, plant some trees along the frontage road, paint the front of the metal building, and install a new sign. If they are forced to, they would also agree to a long term staging of improvements, although a new conforming building is out of the question. You_ are at the hearing, and because the land is surrounded by industrial uses, there is neither neighborhood opposition, nor support. The Mayor serves as the Council liaison and he is in the back of the council chambers. The City Planner presents the staff report, which recommends denial. A prominent local attorney represents the applicants and • assails the staff for their bureaucratic insensitivity. She also makes a very valid point about the market conditions in this area and the fact that it is likely that. this- land will sit a minimum of five years before it can be developed in accordance with the Comprehensive Plan. She says, "The land owner and the Applicants have agreed to reasonable performance, but the fresh faced staff wants it all" and, "Of course, the staff was not yet born when the landowner purchased this property and they have never actually owned or operated a business, so it is difficult to get them to understand reality," she adds. "This is not Bloomington, ladies and gentlemen, and while we support the City's commitment to long term redevelopment, you have got to be reasonable!" The threat of litigation in the event of a denial is not actually stated, but it is very loosely veiled.. All of the questions of the staff and applicant have been asked and answered. There are no public comments. After an uncomfortably long pause the chairman turns in your direction and asks, "Can I have a motion? We need to move along." Recommendation: Findings: (use back of page if necessary) . HYPOTHETICAL CASE STUDIES PAGE LO CASE STUDY NUMBER 4 Industrial Site Redevelopment STUDY QUESTIONS ~_ , _ L What importance should be placed on the fact that market conditions do not support redevelopment of this parcel for at least five more years? 2. Is the Conditional Use Permit the best tool to use in this case? What other Cools might be used? • 3. What are the benefits of the proposed application? n ~J HYPOTHETICAL CASE STUDIES PAGE 11 BER 5 • CASE STUDY NUM Church Ex ansion Background: A:church in`your community wants to expand. It has been in this-location for 100 years< and<was -initiallybuilt with no setback from either frontage on the corner lot that it sits on: The. community is growing, and with-that growth has come. a strong growth in the size of the congregation. The church wants to expand to add more worship space, classrooms and a nursery to support its strong youth and adult education programs. Since the church was built, the City adopted a zoning ordinance. The Subject Property is zoned R-1 Single Family Residential and the Comprehensive Plan supports the continuation of that use pattern. Churches are allowed by conditional use permit (CUP) in the R-1 District. Although a CUP was never granted for this church, the use is not really an issue. The issues focus on whether or not the addition can also be built with no setback, or if it has to be set back 20 feet, as • called for in the ordinance. The church has applied for a conditional use permit and a setback variance. There is a letter in your packet from a neighbor across the street (a row of standard sized, platted lots) and a petition signed by all but one of the neighbors which opposes the setback variance. In addition to this position, the letter goes on to state that both you (a member of the planning commission) and a member of the City Council serve on the church board and should not vote due to a conflict of interest. The Applicants presentation is made by the architects, who cite numerous "practical difficulties" that would be caused by having to conform to the new setback. The minister testifies to the positive benefits of this expansion for the congregation, the church's mission and the broader community. The facts as you understand them are that the church is a legal non-conforming use. The ordinance states that it may be maintained, however, it cannot make any improvements that would "further the non-conformance". Since the existing structure is already built with no setback, is the continuation of this building line a furtherance of the non-conformance? Is there a hardship to justify the variance? • Should you vote on this application, and if not, what action should you take? HYPOTHETICAL CASE STUDIES PAGE I2 • The council chambers are filled with members of the church and the neighbors. The room is charged and there are many stressed looks focused on you. The hearing has been conducted and the Chair is looking for the thoughts and position of the _ Commission. You feel that you can be objective about this decision, but, you do not want to- do anything_unethical. The staff is divided about.. the interpretation of the furtherance of the non-conformance issue. They are staring at you too. -. Recommendation: ;.. Findings: (Including decision on conflict issue) I - -. _ J ~_ ~~~ --- ~. .. . ~ .~.. ---+ Q .~ c~ C `~ ~ r - __;_____ .. c~ ~ n ~- ~-- - ~ . ~ ~ d ~,~.;~ ter: . ~ PAR- k- ~N G ~'°'-i i~' ------_ -1 f HYPOTHETICAL CASE STUDIES PACE 13 - ACHMENT -- • - ATT Sec. 1007-34. Variances. (a) Generally. The City Council may grant variances from the strict application of the provisions of this: chapter and impose conditions and safeguards in the variance so granted,. but: no variance: hall be-granted unless the City Council finds that: (1) Because of the exceptional or extraordinary physical surroundings, shape or topographical conditions of the- specific parcel of land involved, a particular hardship to the owner would result; as distinguished from a mere inconvenience, and no reasonable use of the land is possible if the strict letter of the chapter were to be carried out; (2) The conditions upon which an application for a variance is based are unique to the parcel of land- for which the variance is sought and are not applicable, generally; to other property within the same zoning classification; (3) The purpose of the variance is not based. exclusively upon a desire to increase the value or income potential of a parcel of land; (4) The. alleged difficulty or hardship is caused by this. chapter and has not been created by any • persons presently having an interest in the parcel of land; (5) The granting ofthe variance will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel. of land is located or alter the essential character of the neighborhood; (6) The proposed variance is in keeping with the spirit and intent of this chapter; (7) The proposed 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, or substantially diminish or impair property values within the neighborhood. (b) No variance shall be granted to allow any use that is not permitted under this chapter for property in the zone where the applicant's. land is located. (c) Applications. Applications for variances shall be made by the owner or owners of the property and shall be filed with the Zoning Administrator. All applications shall be accompanied by an administrative fee as prescribed in section 1007-36 and shall include the following information: (1) A description of the proposed use and how it varies from the applicable provisions of this • chapter; HYPOTHETICAL CASE STUDIES PAGE Z4 • -- ATTACHMENT -- (2) A legal description of the property, including plot and parcel number; (3) A map or plat showing the property in question and all property within five hundred (500) feet of the boundaries of the property in question; (4) A site plan showing the location and extent of the proposed building, parking, loading, access drives, landscaping and any other improvements; (5) The names and addresses of the owners of record of all property within five hundred (500) feet of the boundaries of the property in question; (6) A statement of the applicant, referring to specific facts, describing the following: a. The exceptional or extraordinary circumstances or conditions applying to the land, building, or use referred to in the application, which circumstances or conditions do not apply generally to land, buildings, or uses in the same zone classification; b. The hardship to the applicant if the variance is not granted; . c. That the granting of such application will not, under the circumstances of the particular case, materially adversely affect the health or safety of persons residing or working in the neighborhood of the property of the .applicant,. and will. not, under the circumstances of the particular .case, be materially detrimental to the public welfare or injurious to property or improvements in said neighborhood; (7) Any otherinformation required by the Zoning Administrator, Planning Commission or Council. (d) Referral to board of appeals and adjustments. Before any variance may be granted, the application therefor shall be referred to the board of appeals and adjustments for study, and for its recommendation to the City Council for granting of such variance and the conditions thereof, if any, or for the denial of such variance based upon the standards set out in subsection (a}. The Planning Commission may hold one (1) or more hearings on the application in the manner provided in section 1007-41. If a public hearing is not held, a notice describing the property and the request must be mailed to the adjacent property owners at least seven (7) days before the Planning Commission meeting. Failure of the property owners to receive the notice shall not invalidate the proceedings. (e) Issuance. Upon receipt of the report of the board of appeals and adjustments as provided in subsection (d) ,the City Council shall consider the application and may hold whatever public • hearings it deems necessary in the manner provided in section 1007-41. In considering applications for variance under this chapter, the City Council shall consider the advice and HYPOTHETICAL CASE STUDIES PAGE ZS -- ATTACHMENT -- recommendations of the board of appeals and adjustments and the standards set out in subsection (a) and may grant or deny the variance and may impose conditions and safeguards therein. (f) Denial An application variance may be denied by motion of the City .Council and. such. motion shall constitute a.findng and determination by the City Council that the conditions required for approval do not exist. . (g} Action without board of appeals and adjustments recommendation. If no recommendation is transmitted-by the board of appeals and adjustments within sixty (60) days after referral of the application for variance to the board, the City Council may take action without further awaiting such recommendations. Sec. 1007-35. Abandonment of conditional use or variance. (a) Abandonment. Whenever within one (1}year after the granting of a conditional use permit or a variance the owner or occupant shall not have substantially completed the erection or alteration. of a building. or structure .described,. then the permit or variance shall become null and void unless a petition forextension oftime in which to complete the proposed construction of alterations has been granted. (b) Extension of time. A petition to extend time of a conditional use permit or variance shall be in writing .and filed with the Zoning Administrator more than. twenty (20) days before the expiration of one (I) year from the date the permit or variance wasapproved. It shall state facts showing a good faith attempt to use the permit or variance, and shall state the additional time requested to complete the construction or alteration. Such petition shall be presented to the board of appeals and adjustments for hearing and decision in the same manner as the original request. In determining whether the petitioner has made a good faith attempt to use the permit or variance, the board may consider such factors as the design, size, expense and type of the proposed construction or alteration. (c) Two-year period. It shall be within the power of the Planning Commission or board of appeals and adjustments, at the time of granting the original request for a conditional use permit or variance, to grant atwo-year period for the substantial construction of the building or structure, but such two-year period may not thereafter be extended. .] HYPOTHETICAL CASE STUDIES PAGE I6 .i • CASE STUDY NUMBER 5 Church Expansion STUDY QUESTIONS 1. Does the .expansion of the .church constitute. a "furtherance of the.- nonconformity 2. Do -you have a conflict of interest due to your membership on the Church Board? • 3. Is there a hardship present based upon the standards in your ordinance? n LJ HYPOTHETICAL CASE STUDIES PAGE 17 R" • CASE STUDY Conditional Use Permit/Variances Background: A gas station exists on a very small site a major intersection in an older section of town. All four quadrants of the intersection have commercial uses that are part of a neighborhood commercial center. The gas station consists of gas pumps with a canopy and a small kiosk that houses the attendant. The kiosk is non-conforming and does not meet certain setback requirements. The site is completely covered by asphalt and has a couple of curb cuts that are too close to the intersection. A major gas company buys the property and proposes to upgrade the site by replacing the kiosk with a convenience store, eliminating one of the curb cuts, and adding landscaping. The convenience store would be four times the size of the kiosk and requires three setback variances. The company says that it needs the convenience store to be economically competitive. (See attached maps). A gas station needs a conditional use permit under current ordinances, and this site never obtained one. The proposal meets all of the conditional use standards but requires the setback variances. The neighboring business owners and residents are very vocally opposed. They allege that this will increase traffic, increase crime, and block visibility of the intersection from adjacent retail stores. They say that there are enough. convenience stores in the city. The adjacent retail building owner particularly objects to the variances because. they would place the building very close to his property line. A traffic study done for the city shows a significant increase in traffic since the gas station was originally built, but says that the upgrade will not contribute significantly to traffic congestion. Staff recommends approval of the plan because it will improve some of the current problems on the site. The developer says that you must approve the variances because the city granted setback variances within the last year for the gas pump canopies at two other gas stations. The developer says that there is no other economically feasible use for the site. You are receiving a lot of pressure to deny the application. What do you do? Recommendation: Findings: • i i• C~ -~ ~P A' ~~~ .~V 1..Lt .fy~~~~1G+s -=-- r ~~ ~, ~ ~ ~ I !}i ~a'~ ~ . ~ } I i ! 1. E~C.HIB~T 4 ~~ i i i ~- , ~..~ ' -~ I ' ,:~ ~~ 't ,;~::_.: ~~ _~~ r~ A. 1''`` r ~~ . i_ ~ ~,~ ~ ' ~ ~~ .. ~r r ~~+ ~ ~-~ Y~ _ _ ~T .1 ~; ~~ - ~~ Ii - ~ ~ ~ ~; ~ ~~y r _ ~J ~_ . ~~ ~ ~~ I2 .~ a ~ ~3 _ . ~ 7 ~ ,~ .-1.. . f ~. ~ _ w •