HomeMy WebLinkAbout#17 - CC report - variance ordinance amendment 11.1.16MAYOR AND COUNCIL COMMUNICATION
DATE: 11/15/2016
CONSENT
ITEM #:17
AGENDA ITEM: Zoning Text Amendment – Variance Ordinance
SUBMITTED BY: Stephen Wensman, Planning Director
THROUGH: Kristina Handt, City Administrator
REVIEWED BY: Emily Becker, City Planner
Sarah Sonsalla, City Attorney
BACKGROUND:
The City is requesting a zoning text amendment to amend the Variance Ordinance, Section 154.109, as it
pertains to expirations of variances. A recent review of a land use application by the City Attorney
resulted in a determination that a portion of the ordinance that pertains to expiration of variances may not
comply with MN State Statutes. The City Attorney drafted the proposed ordinance that:
1)strikes the problematic language, and
2)adds a provision for administrative extensions of variances for variances not utilized within 12
months after an approval.
The City has discretionary authority when it comes to extending variance when not utilized. The purpose
of the second part of the amendment is to eliminate the need for an applicant to reapply for a variance
with its associated costs and to reduce staff time associated with such applications when extensions are
for a limited time, one year or less. If greater than a year, then the Planning Commission and Council
review would be required.
ISSUE BEFORE COUNCIL:
The council, as part of the consent agenda, is respectfully being asked to consider the zoning text
amendment as it pertains to expiration of variances.
PROPOSAL DETAILS/ANALYSIS:
The City Attorney has reviewed our current variance ordinance and has drafted this ordinance as a result
striking the inappropriate text and subsequently added the section on administrative extensions which is
allowed under MN State Statutes.
FISCAL IMPACT:
The Administrative extensions will result in less expense for the applicants and less staff time and resources
processing those applications.
City Council Meeting 11/15/16 Consent Agenda Item #17
Page 2
OPTIONS:
The City Council may approve the zoning text amendment as part of tonight’s consent agenda, or remove
the item from the consent agenda to discuss then approve the ordinance amendment unchanged, approve
the ordinance amendment with changes, or deny the ordinance amendment.
PUBLIC HEARING:
The Planning Commission held a public hearing on 10/24/16 to consider the zoning text amendment. There
were no comments from the public. The Planning Commission approved the amendment 7-0.
RECOMMENDATION:
Staff and the Planning Commission respectfully recommend the City Council approve the zoning text
amendment as it pertains to as it pertains to expiration of variances as part of tonight’s consent agenda
by approving Ordinance 08-158.
If the item is removed from the consent agenda, then the following motion is recommended:
“Move to approve Ordinance 08-158 approving a zoning text amendment as it pertains to expiration
of variances, Section 154.109, Subd. I.”
Also,
“Move to approve Resolution 2016-98 approving the summary publication of the zoning text
amendment as it pertains to expiration of variances, Section 154.109, Subd. I.”
ATTACHMENTS:
•Ordinance 08-158 as it pertains to expiration of variances, Section 154.109, Subd. I
•Resolution 2016-98 approving the summary publication of the zoning text amendment as it pertains
to expiration of variances, Section 154.109, Subd. I.
City Council Meeting 11/15/16 Consent Agenda Item #17
Page 3
ATTACHMENTS:
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484315v1 AMB LA515-4
CITY OF LAKE ELMO
COUNTY OF WASHINGTON
STATE OF MINNESOTA
ORDINANCE NO. 08-158
AN ORDINANCE AMENDING THE LAKE ELMO CITY CODE OF ORDINANCES
REGARDING VARIANCE EXPIRATIONS
SECTION 1. The City Council of the City of Lake Elmo hereby amends Section 154.109 of the
City Code by deleting the stricken language and inserting the double-underlined language as
follows:
ARTICLE III. ZONING ADMINISTRATION AND ENFORCEMENT
§ 154.109 VARIANCES.
A. In General. The Board of Adjustment shall have the power to grant variances to the
provisions of this chapter under the following procedures and standards.
1. A request for a variance from the literal provisions of this chapter may be granted
in instances where their strict enforcement would cause practical difficulties
because of circumstances unique to the individual property under consideration
and then only when it is demonstrated that such actions will be in keeping with
the spirit and intent of this chapter. All requests for variances shall be reviewed in
accordance with the required findings listed in §154.109.F.
B. Use Variances Prohibited. A variance shall not be granted for any use that is not a listed
permitted or conditional use under this chapter for property in the zone where the
property is located.
C. Application Requirements. Variance applications shall be submitted to the Director of
Planning on such form and accompanied by such information as required by §154.101.A
of this Article and with the submission materials listed in §154.101.B of this Article.
D. Hearing Requirements. The Planning Commission shall hold a public hearing on each
complete application for a variance as provided in §154.102 of this Article. After the
close of the hearing on a proposed variance, the City Planning Commission shall consider
findings and shall submit the same together with its recommendation to the Board of
Adjustment.
E. Board of Adjustment Action. The Board of Adjustment shall receive the recommendation
of the Planning Commission and shall take final action on the variance request. All
findings and decisions of the Board of Adjustments concerning variances shall be final.
F. Required Findings. Any action taken by the Board of Adjustment to approve or deny a
variance request shall include the following findings:
1.Practical Difficulties. A variance to the provision of this chapter may be granted
by the Board of Adjustment upon the application by the owner of the affected
property where the strict enforcement of this chapter would cause practical
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difficulties because of circumstances unique to the individual property under
consideration and then only when it is demonstrated that such actions will be in
keeping with the spirit and intent of this chapter.
a.Definition of Practical Difficulties. “Practical difficulties,” as used in
connection with the granting of a variance, means that the property owner
proposes to use the property in a reasonable manner not permitted by an
official control.
2.Unique Circumstances. The problem for the landowner/applicant which the
proposed variance is intended to correct must be due to circumstances that are
unique to the property in question and that were not created by the land
owner/applicant.
3.Character of Locality. The proposed variance will not alter the essential character
of the locality in which the property in question is located.
a.Definition of Locality. For purposes of this subsection, “locality” shall be
defined as all that property within 350 feet of the property proposed for the
variance; however, in all events, it shall include all parcels abutting the
affected parcel, including those immediately across a public street, alley of
other public property.
4.Adjacent Properties and Traffic. The proposed variance will not impair an
adequate supply of light and air to property adjacent to the property in question or
substantially increase the congestion of the public streets or substantially diminish
or impair property values within the neighborhood.
G. Conditions. The Planning Commission may recommend and the Board of Adjustment
may impose such restrictions and conditions upon the property that is the subject of the
variance as may be necessary to comply with the standards established by this chapter or
to reduce or minimize the effect of such variance upon other properties in the
neighborhood and to better carry out the intent of the variance.
H. Effect of Denial. No application by a property owner for a variance shall be submitted to
the Board of Adjustment within a six (6) months period following a denial of such a
request unless, in the opinion of the Board, new evidence of change in circumstances
warrant it.
I. Expiration. A variance shall be deemed to authorize only one particular use and shall
expire if work does not commence within twelve (12) months of the date of granting such
variance or if that use ceases for more than six (6) consecutive months, except when:
1. A written petition for an extension of one (1) year or less, is received at least 30 days
prior to the expiration of the initial variance request; and
2. The petition for the extension states facts demonstrating that a good faith attempt has
been made to complete or utilize the variance that had been granted.
3. The fee for such a petition shall be set by resolution of the City Council.
4. The Planning Director shall review the petition to either approve or deny the
extension. An appeal of a Planning Director’s decision shall follow the provisions set
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forth in §154.108. Petitions for extension that are greater than one (1) year shall be
presented to the planning commission for a recommendation and to the City Council
for a decision.
J. Revocation. The Board of Adjustment may revoke a variance if any conditions
established by the Board as part of granting the variance request are violated.
(Ord. 08-085, passed 7-2-2013)
SECTION 2. Effective Date. This ordinance shall become effective immediately upon adoption
and publication in the official newspaper of the City of Lake Elmo.
SECTION 3. Adoption Date. This Ordinance 08-158 was adopted on this ______ day of
___ 2016, by a vote of ___ Ayes and ___ Nays.
LAKE ELMO CITY COUNCIL
___________________________________
Mike Pearson, Mayor
ATTEST:
_________________________
Julie Johnson, City Clerk
This Ordinance ____ was published on the ____ day of ___________________, 2016.
CITY OF LAKE ELMO
COUNTY OF WASHINGTON
STATE OF MINNESOTA
RESOLUTION NO. 2016-98
RESOLUTION AUTHORIZING PUBLICATION OF ORDINANCE 08-158 BY TITLE
AND SUMMARY
WHEREAS, the City Council of the City of Lake Elmo has adopted Ordinance No. 08-158,
an ordinance to amend Article III. Zoning Administration and Enforcement, Section 154.109:
Variances of the City Code; and
WHEREAS, the ordinance is lengthy; and
WHEREAS, Minnesota Statutes, section 412.191, subd. 4, allows publication by title and
summary in the case of lengthy ordinances or those containing charts or maps; and
WHEREAS, the City Council believes that the following summary would clearly inform
the public of the intent and effect of the ordinance.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lake
Elmo, that the City Clerk shall cause the following summary of Ordinance No. 08-158 to be
published in the official newspaper in lieu of the entire ordinance:
Public Notice
The City Council of the City of Lake Elmo has adopted Ordinance No. 08-158, which amends the
Chapter 154: Zoning Code:
1)strikes language that conflicts with MN State Statutes, and
2) adds a provision for administrative extensions of variances for variances not utilized
within 12 months after an approval.
The full text of Ordinance No. 08-158 is available for inspection at Lake Elmo city hall during
regular business hours.
BE IT FURTHER RESOLVED by the City Council of the City of Lake Elmo that the
City Administrator keep a copy of the ordinance at City Hall for public inspection and that a full
copy of the ordinance be placed in a public location within the City.
Dated: November 15, 2016
___________________________________
Mayor Mike Pearson
ATTEST:
____________________________________
Julie Johnson, City Clerk
(SEAL)
The motion for the adoption of the foregoing resolution was duly seconded by member
_________________________ and upon vote being taken thereon, the following voted in favor
thereof:____________________________________and the following voted against
same:________________________________________
Whereupon said resolution was declared duly passed and adopted.
PUBLIC HEARING ITEM 4D
PLANNING COMMISSION
DATE: 10/10/16
AGENDA ITEM: 4D PUBLIC HEARING
CASE # 2016-43
ITEM: Zoning Text Amendment – Variance Ordinance Amendment
SUBMITTED BY: Stephen Wensman, Planning Director
REVIEWED BY: Emily Becker, City Planner
Kristina Handt, City Administrator
Sarah Sonsalla, City Attorney
SUMMARY AND ACTION REQUESTED:
City Staff is requesting the Planning Commission consider a zoning text amendment to the City of
Lake Elmo Code of Ordinances, Section 154.109 as it pertains to expirations of variances. Staff is
recommending that Planning Commission recommend approval of the zoning text amendment.
REVIEW:
A review of a recent variance extension request by the City Attorney has resulted in a suggestion to
amend the expiration section of the variance ordinance, Section 154.109, Subd. I. The requested
changes are two-fold.
First, the City Attorney believes the expiration of a variance for if a use ceases for more than six (6)
consecutive months is of questionable legality because variances run with the land and therefore,
should not be taken away for nonuse. The City Attorney recommends this clause be stricken from the
ordinance.
Second, Staff is recommending administrative extensions of variances for variances not initiated
within twelve (12) months of an approval as long as the petition for extension is made in writing,
the requested extension is for a year or less and that it is received at least 30 days prior to
expiration, and that the applicant can demonstrate a good faith attempt to complete or utilize the
variance. The suggested ordinance would allow Planning Director review and approval such
requests and that appeals would follows existing code provisions identified in §154.108. Any
petitions for an extension greater than one year would require the applicant to present the petition
to the Planning Commission for recommendation to the City Council. The purpose of this
second recommended amendment is to eliminate the need for an applicant to reapply for a
variance with its associated application costs (application fee, certified address labels) and staff
time preparing reports and holding public hearings as currently required, when requested
extension are for a limited time, one year or less, or presented to the Planning Commission with
recommendation to the City Council if for a period greater than a year without the need for a
public hearing.
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PUBLIC HEARING ITEM 4D
FINDINGS:
Staff is recommending approval of the zoning text amendment with the following suggested findings:
The amendment has been reviewed by the City Attorney and is in conformance with
Minnesota Statutes, Section 462.357, Subd. 6 as it pertains to variances.
The administrative extension of variances of a year or less is appropriate if the applicant can
demonstrate a good faith attempt to complete or utilize the variance is consistent with the
spirit and intent of the ordinance.
RECOMENDATION:
Staff is recommending the Planning Commission recommend approval of the zoning text amendment
amending City of Lake Elmo Code of Ordnances, Section 154.109 as it pertains to expirations of
variances with the following motion:
“Move to recommend the City Council approval Ordinance 08-__ amending City of Lake Elmo
Code of Ordinances, Section 154.109 as it pertains to expirations of variances”
ATTACHMENTS:
Minnesota Statutes, Section 462.357
Comparison of other City’s Variance Ordinances
Ordinance 08-__ amending City of Lake Elmo Code of Ordinances, Section 154.109 as it
pertains to expirations of variances
ORDER OF BUSINESS:
- Introduction ........................................................................................ Planning Staff
- Report by Staff ................................................................................... Planning Staff
- Questions from the Commission ............................ Chair & Commission Members
- Open the Public Hearing .................................................................................. Chair
- Close the public Hearing .................................................................................. Chair
- Discussion by the Commission .............................. Chair & Commission Members