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August 26, 2008 Letter to Joel Hanson and Steve Grittman Page 3 of 3 Some of the definitions in Section 902 conflict with these statutory provisions, particularly 43. Family Day Care and 85. Group Care Facility. The City's zoning powers are limited to what the Legislature grants, so contrary provisions of our ordinances will lose out to these statutory exceptions. The definitions should be changed to conform to the statutes, or be deleted in favor of adopting the statute language. The sections most affected are again Sections 905, 906 and 907, and also Section 909, Residential -Business. Given the clear direction of the statutes, there is no immediate need to address day care facilities within the text of these sections, just as group home facilities are not addressed. Following the statutory guidance, the City has the ability to drop day care as a conditional use altogether in Sections 905, 906, and 909 as these sections do not permit "multi- family" housing. In Section 907, the city can require all day care facilities to obtain a CUP, as multi-family is the only permitted residential use. The day-care portions of other zones (912, 912A, 913A, 918, and 920) can remain unchanged, as none of these zones list residences of any kind as permitted uses. Note that there are some similar uses referenced within the zone regulations (nursing homes, rehab centers) which do not have statutory protection. Thus, even though the City's definition of nursing home (2 or more invalids) differs from the State's (nursing home license only required if more than 5 residents), there is no immediate need to change our ordinance to comply with State law. On the other hand, where our zoning definitions and CUP requirements affect uses and services for the disabled and/or the elderly, the City has to be mindful of the Fair Housing Act, regardless of whether State statutes create exceptions. 2. Other Issues In 921.010 (L), the code states that a 2/3 vote is required to switch land from commercial/industrial to residential. It is actually the other way around - §462.357, subd. 2 requires a 2/3 vote to go from residential to commercial or industrial. 914-A: Removing all permitted and conditional uses from a zone places a lot of pressure upon any future re-zoning decision. The lack of other "fallback" uses lends at least superficial support to a takings claim by an owner denied a rezoning to their liking, as there would be no other permitted uses of the land in the wake of the denial. This fact would likely not determine the fate of any lawsuit, but the City could avoid handing owners an argument in their favor by keeping a base set of permitted uses. Respectfully yours, KELLY & LEMMONS, P.A. Trevor S. Oliver TSO/tso