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HomeMy WebLinkAbout2010-09-13 CPC PacketTHE BIRTHPLACE OF MINNESOTA CITY OF STILLWATER PLANNING COMMISSION NOTICE OF MEETING MONDAY, September 13, 2010 The City of Stillwater Planning Commission will meet on Monday, September 13, 2010, at 7 p.m. in the Council Chambers at Stillwater City Hall, 216 North Fourth Street. City of Stillwater Planning Commission regular meetings are held at 7 p.m on the second Monday of each month. All City Planning Commission meetings are open to the public. AGENDA 1. CALL TO ORDER 2. APPROVAL OF August 9, 2010 MINUTES 3. OPEN FORUM The Open Forum is a portion of the Commission meeting to address subjects which are not a part of the meeting agenda. The Commission may reply at the time of the statement or may give direction to staff regarding investigation of the concerns expressed. Out of respect for others in attendance, please limit your comments to 5 minutes or Tess 4. PUBLIC HEARINGS. The Chairperson opens the hearing and will ask city staff to provide background on the proposed item. The Chairperson will ask for comments from the applicant, after which the Chairperson will then ask if there is anyone else who wishes to comment. Members of the public who wish to speak will be given 5 minutes and will be requested to step forward to the podium and must state their name and address. At the conclusion of all public testimony the Commission will close the public hearing and will deliberate and take action on the proposed item. 4.01 Case No. 2010-38. A variance to the impervious surface regulations (25 percent allowed, approximately 27 percent requested) for the construction of a detached garage located at 223 Pine Street West in the RB, Two Family Residential District. Douglas Danks, representing Rick and Suzanne Van Horne, applicants. 4.02 Case No. 2010-39. A variance to the side yard setback (5 feet required, 3 feet requested) for the construction of a two -garage located at 2203 Oak Ridge Road in the RA, Single Family Residential District. Phil and Linda Mitchell, applicants. 4.03 Case No. 2010-40. A special use permit for a coffee shop/gallery located at 413 Nelson Street East in the CBD, Central Business District. Mike McGuire, applicant. 4.04 Case No 2010-41. A special use permit for a historical museum facility located at 2159 Curve Crest Blvd in the BP-0, Business Park Office District. Mark Balay, representing Washington County Historical Society, applicant. 4.05 Case No. 2010-12. A zoning text amendment on swimming pool safety enclosures. City of Stillwater, applicant. Continues from the August 9, 2010 meeting. 5. OTHER BUSINESS 5.01 Discussion of Minnesota Supreme Court Case Krummenacher v. City of Minnetonka related to variances and possible zoning code changes related to existing nonconforming lots of record and existing nonconforming structures. CITY HALL: 216 NORTH FOURTH STREET - STILLWATER, MINNESOTA 55082 PHONE: 651-430-8800 ® WEBSITE: www.ci.stillwater.mn.us City of Stillwater Planning Commission August 9, 2010 Present: Dave Middleton, Chair, Mike Dahlquist, Robert Gag, Eric Hansen, Mike Kocon, John Malsam, Scott Spisak and Charles Wolden Staff present: Planner Mike Pogge Absent: Aron Buchanan Mr. Middleton called the meeting to order at 7 p.m. Approval of minutes: Mr. Dahlquist, seconded by Mr. Malsam, moved to approve the minutes of July 12, 2010. Motion passed 6-0-1, with Mr. Kocon abstaining. OPEN FORUM No comments were received. PUBLIC HEARINGS Case No. 2010-34 A special use permit and parking variance for a hair salon at 222 Third St. S. in the RCM, Medium Density Residential District. Theresa Dzuik, applicant. Mr. Pogge reviewed the request and staff findings. He noted that a floral shop previously occupied the space in question and did have a conditional use permit for retail; the conditional use permit has expired since the space has been vacant for more than six months. He noted that no physical expansion of the space is proposed, but going from a retail use to a hair salon does represent an increase in intensity of use from a parking standpoint — retail use requires three parking spaces, while a three -chair salon requires nine spaces. He noted, however, that staff does not think this represents a substantial change as the downtown parking district fronts on this building, with a downtown parking lot available within a block of this address. Beyond the parking requirement, Mr. Pogge said staff believes the proposal meets all the conditions required for the issuance of a permit. He noted that initially the applicant intends to have just one chair, with additional chairs, up to three, added as the clientele base increases; he reviewed staff's recommendation regarding the purchase of parking permits as the additional staff/chairs are added. Mr. Kocon asked how the addition of the chairs would be monitored; Mr. Pogge stated in part, it is dependent on the applicant being honest and in part if an issue with parking is observed. The applicant was present but did not wish to make any additional comments. Mr. Middleton opened the public hearing. No comments were received, and the hearing was closed. Mr. Kocon moved approval as conditioned. Mr. Malsam seconded the motion. Motion passed unanimously. Case No. 2010-35 A special use permit for an accessory dwelling unit and variance to the rear yard setback (25 feet required, 3 feet requested) for construction of a garage with an accessory dwelling unit at 718 Pine St. W. in the RB, Two Family Residential District. Nathan and Lucy Smith, applicants. The applicants were present. Mr. Pogge reviewed the request and staff findings. He reviewed the conditions for the issuance of a special use permit for an accessory dwelling unit and said the request meets all the requirements of the code, with the exception of the rear yard setback. He noted that the applicants own the parcel to the rear, which is separated from the main dwelling unit property by a 10' alleyway, with no dwelling units immediately behind the site in question. He reviewed the requirements for issuance of a variance and said staff finds the 1 City of Stillwater Planning Commission August 9, 2010 request meets all the criteria. He noted that the Heritage Preservation Commission has reviewed and approved the design of the proposed accessory structure. Mr. Spisak asked if the alley was platted with the two lots or whether it was platted later bisecting the lot; Mr. Pogge stated that is unclear, but said it was platted as part of a county auditor's plat, indicating that at some level there was an error in the original subdivision. Mr. Dahlquist asked if there was any other access to the second parcel other than the alley; Mr. Pogge stated there is no other access. Mr. Smith briefly explained the reason for their plans. Mr. Middleton opened the public hearing. No comments were received, and the hearing was closed. Mr. Malsam asked if the intent was to connect to municipal sewer and water; Mr. Smith noted that is a requirement. Mr. Dahlquist said he thought this was a good example of a hardship and said he thought the setback variance was justified. Mr. Dahlquist moved to approve the special use permit and rear yard variance with the conditions recommended by staff. Mr. Spisak seconded the motion; motion passed unanimously. Case No. 2010-36 A special use permit for outdoor sales to operate a U-Haul rental facility and propane tank refill station with an existing business (Lucky's Station) at 1750 Greeley St. S. in the BP-C, Business Park Commercial District. Scott Stevens, applicant. Mr. Pogge reviewed the request and staff findings. He reviewed the three criteria for issuance of a special use permit and said staff finds the request meets all three criteria with the conditions recommended. Mr. Dahlquist asked about the zoning of the updated Comprehensive Plan and whether this use represents any issues with the new zoning. Mr. Pogge stated the property is currently zoned BP-C so the request meets all code requirements. Eventually, he said the City will be looking at rezoning a number of sites in the community that do not meet the guiding use set out in the updated Comprehensive Plan and this would be one of those sites; he said at that point, this site would receive grandfathered status and would be able to continue to operate. Mr. Spisak asked if the fire marshal had reviewed the plans, saying he had some concerns with the proximity of the propane tank to the existing underground gas tanks. Mr. Pogge stated he met with the City's fire marshal and the proposal does meet fire code. Mr. Spisak asked about the trash dumpster and whether the U-Haul storage might be an issue; Mr. Pogge said there are no plans to relocate the existing enclosed trash area. Mr. Dahlquist asked whether circulation around the entire building would be maintained; Mr. Pogge said he did not address that issue with the fire marshal but said circulation would have to be maintained for fire truck access and said the fire department annually reviews sites to make sure they are in compliance. Mr. Middleton noted there has been a problem in the past with the number of U-Haul trucks at some locations; he asked how the condition that no more than 5 of the trucks are allowed on site at any one time would be managed. Mr. Pogge stated it does require the property owner to respect those limits; if complaints are received, the City can do an enforcement action. Mr. Gag agreed with Mr. Middleton's concern and advised the applicant that this is an issue that is important to the Commission and community. Mr. Kocon asked about the size of the U-Haul vehicles; Mr. Pogge said it could be any size up to 5 vehicles. Mr. Pogge pointed out that the previous problems referred to with the U-Hauls were complicated by the fact that the City has a parking easement on the site in question. There was discussion of previous enforcement actions and the City's position on such actions. The applicant was present. Mr. Stevens addressed the concerns regarding the U-Haul business. He said he would certainly comply with guidelines and said he did not want the operation to be unsightly. He said his preference would be to have one small truck and a trailer and noted that the U-Haul company does not want trucks being warehoused. 2 City of Stillwater Planning Commission August 9, 2010 Mr. Middleton opened the public hearing. No comments were received, and the hearing was closed. Mr. Kocon noted that staff has found that the request conforms to the requirements of code with specific conditions and moved to approve the special use permit and variance as conditioned. Mr. Malsam seconded the motion. It was noted there is no variance required for this application. Mr. Kocon . amended his motion to approval of the special use permit as conditioned; seconder agreed. Motion passed unanimously. Case No. 2010-37 A zoning text amendment to the VC -Village Commercial District to allow a restaurant with alcohol sales and special use permit for a restaurant at 145 New England Place in the VC -Village Commercial District. Brian Pilrain, Roman Market Inc., applicant. Mr. Pogge reviewed the request and staff findings. He reviewed plans for expansion of the existing space, with cooler, air handling units and outdoor patio area. He reviewed the requested zoning text amendment, noting that the purpose of the Village Commercial is to be a local center of convenient shopping and personal services in proximity to a residential neighborhood. He said staff believes a restaurant that serves the surrounding area is appropriate and a Tong -sought after amenity by residents of the Liberty area. He said the zoning code provides the City with more control than a liquor license does. He reviewed the recommended conditions. Regarding the special use permit, he noted that additional parking spaces will be required prior to the opening of the patio area; he said the veterinary clinic has verbally agreed to allow 5 additional spaces to be built on its property to meet the parking requirement. Mr. Kocon asked about the hours of operation of the patio at an adjacent building and questioned the proposed hours of operation of the patio at this business. Mr. Gag asked about control of odors, an issue raised by the Liberty Homeowners Association; Mr. Pogge said he would have to work with the applicant regarding available equipment to address this issue and said he thought the distance of this site from the residential area would minimize any potential problem. Mr. Hansen asked if there were any other areas zoned VC; Mr. Pogge stated this is the only area at this time. Mr. Kocon noted that the parking deficit is only during the summer when the patio is open. The applicant was present and had no further comments. Mr. Middleton opened the public hearing. David Korte, 3515 Pine Hollow Place, spoke in favor of the proposal; he expressed appreciation for the process that has taken place and for the work of the Commission. Mike Polehna, Councilmember for the ward involved, spoke of the meeting the applicants held with the neighbors to address their concerns and noted that the neighbors were almost unanimous in their support of the proposal. No other comments were received, and the hearing was closed. Mr. Dahlquist noted that over the years there has been a vision for a restaurant in this area and said he thought this proposal does a good job of keeping the use a restaurant and not a regional gathering drinking place. Mr. Dahlquist asked if the applicants had reviewed the conditions and proposed language of the zoning text amendment. The applicant responded that they had reviewed the items and their hours of operation are such that they fit within the proposed conditions/language. However, the applicant said they would appreciate longer hours for the patio than the proposed 9 p.m.; he said that is an issue they could work with the City on and perhaps revisit at a later date. Mr. Middleton noted that there has been difficulty keeping a tenant in the space in question and said he would not want to place so many restrictions that it hurts the opportunity for a business to be successful. The applicant stated he did not think the proposed restrictions would be a detriment to the business. Mr. Hansen suggested changing the hours for the patio operation to 10 p.m.; Mr. Malsam pointed out this restriction might be related to the meeting with the neighbors so it might not be wise to make that change at this point. Mr. Korte stated he did not remember the patio hours being an issue with the neighbors; the 3 City of Stillwater Planning Commission August 9, 2010 applicant stated they were just eager to get the business going and get the support of the Home Owners Association and neighbors. Mr. Hansen moved to approve the zoning text amendment and the special use permit changing condition No. 3 to state that the patio shall close at 10.m. Sunday through Thursday and 10:30 p.m. on Friday and Saturday. Mr. Pogge suggested just making the patio hours coincide with the regular hours of operation but pointed out that having a patio open is different than having an indoor business open; he also noted that the Homeowners Association had asked that the business be closed at 10 p.m. every day. Mr. Dahlquist seconded the motion. It was noted that the motion removed condition 3, making the hours of the patio concurrent with the regular hours of operation. Motion passed unanimously. Case No. 2010-12 A zoning text amendment on swimming pool safety enclosures. City of Stillwater, applicant. Mr. Pogge reviewed the history of the issue. Subsequent to the City Council's public hearing regarding swimming pool enclosures, he said five interested individuals met with City staff to discuss different options. In June, the Council received the group's recommendation and decided to send the matter back to the Planning Commission for public hearing and the Commission's recommendation. He said the group of individuals who discussed the options, recommended that all pools have a vertical safety enclosure of some type approved by the building official; that safety covers be an optional supplement to the vertical safety enclosures; that legal, nonconforming pools with safety covers only be allowed to continue until some sunset time. He said there was some discussion regarding having a grace period versus a point -of -sale deadline, but said staff believes point -of -sale would be very difficult to monitor and enforce. He noted 14 pools have been installed since the City changed the requirement to allow safety covers as an option to fencing. Mr. Malsam asked what surrounding communities do; Mr. Pogge stated communities vary widely in requirements. Mr. Hansen asked how a 5- or 10-year grace period would be any easier to enforce than change of ownership; Mr. Pogge said because there is a set time and the City can identify the pool owners in question and take action at a specific point to determine compliance. There was discussion of issues including insurance, durability of covers, etc. Mr. Wolden suggested that fencing provides a false sense of security and wondered whether this was a personal responsibility that should be left up to the property owner. Mr. Spisak agreed that this is an issue of personal responsibility and it is up to the owner to ensure that a fence is closed or cover is closed and the pool is monitored. Mr. Dahlquist noted there is no state code/statute that deals with this issue; Mr. Pogge spoke of the number of small ponds and lakes and river in the City, noting that all of those bodies of water are open, with no fencing. In discussion, it was noted that the current ordinance does not define the type of pool cover allowed; Mr. Spisak suggested that is something that should be defined and spelled out in the ordinance. Mr. Middleton opened the public hearing. Desmond Kilcoyne, 1213 Third Ave. S., pointed out there are industry standards and certification for pool safety covers. He noted that a fence does not remove the enticement presented by a pool. He spoke in favor of allowing the option of a cover or fence and not requiring a fence; he said a pool cover, when closed, is permanent protection, unlike a fence. He said he thought the risk factor was much Tess with a pool cover. No other comments were received, and the hearing was closed. Mr. Middleton said he would like to make a recommendation that the City obtain a better definition of a safety cover and table this issue pending that information; he moved to table. Mr. Hansen seconded the motion. Mr. Polehna spoke of pool alarms as something that the Commission might also want to discuss. Mr. Middleton pointed out the entire issue comes down to a matter of supervision. Motion to table passed unanimously. 4 City of Stillwater Planning Commission August 9, 2010 OTHER BUSINESS Seasonal vending — Mr. Pogge noted that currently the City looks at seasonal vending in two different ways — some are reviewed annually, some that are not, depending on the use and location. He said the question is whether to move away from special use permit and issue an annual permit for the seasonal vending and at what level should the permit be issued — staff or Planning Commission — as well as any fees that should be imposed. Mr. Spisak suggested one trigger for Planning Commission review/action could be the need for a variance or parking issue. Mr. Dahlquist said the general good of the City is also an issue, suggesting that it might not be good to have these types of uses occurring all over the community. Mr. Kocon suggested the intensity of use, amount of traffic generated, might be a trigger. Mr. Pogge stated he gets calls nearly on a monthly basis from someone who would like to set up sales within City parks, street right-of-way, etc. Mr. Spisak suggested that perhaps all requests should come before the Commission for initial approval, with renewals not reviewed unless there are complaints. Mr. Middleton pointed out there is currently an issue with special use permits for this type of use as the permit stays with the property, not the vendor. Mr. Spisak expressed concern that the City loses control by tying a permit to the chain of title for something that is not a permanent use. Mr. Dahlquist said his intention would not to do something that drastically increases the number of these permits. It was noted there are Christmas tree sales that have never been heard by the Commission; Mr. Pogge stated that the Council hears that request as the sale is conducted on City property. Mr. Pogge summed up the discussion: start with a pedestrian license and create a code that fits the situation; that the Planning Commission should approve a license the first time, with staff approval for renewals; if there is something unusual about a license that triggers a variance or SUP, there is automatic review by the Commission, along with any change in the use or upon complaint. Meeting was adjourned at 9:10 p.m. Respectfully submitted, Sharon Baker Recording Secretary 5 Planning Commission DATE: September 9, 2010 CASE NO.: 10-38 APPLICANT: Douglas Danks, Douglas Danks Associates PROPERTY OWNER: Rick and Suzanne Van Horne REQUEST: The applicant is requesting a variance to the maximum building coverage (25% maximum/25.85% requested) in order to construct a detached garage. LOCATION: 223 Pine St W COMPREHENSIVE PLAN DISTRICT: LMDR - Low/Medium Density Residential ZONING: RB - Two-family District PC DATE: September 13, 2010 PREPARED BY: Michel Pogge, City Plannerin.cp BACKGROUND The applicants are requesting a variance in order to construct a detached 22'8" wide by 25'4" deep garage and associated driveway. This property is zoned RB and currently has an existing single-family home on the site. The lot is 8,949 square feet in size. The property currently has 20 foot by 24 foot garage that is proposed to be demolished and replaced with the new garage. The HPC approved the demolition of the garage in HPC Case 2009-30. DISCUSSION The Van Horne's property is in the RB zoning district. The critical standards from the district are presented in the table below, together with the current and proposed minimums. RB Zoning District Required/Allowed Current Proposed Lot size 7,500 s.f. 8,949 s.f. Same Rear setback, garage 3' -4.2' 3' Side setback, garage 3' "'5.7' 10'3" Building cover, max 25% 24.80% 25.85% Other impervious, max 25% 9.00% 9.70% 223 Pine St W Page 2 As seen in the table, the building coverage does not satisfy the RB zoning standards. The variance is to the maximum impervious lot coverage. The RB zoning code allows up to 25% coverage for buildings and 25 % for other impervious coverage, which are required to be calculated separately. Past precedents set by the Commission when one type of impervious coverage is exceeded and a variance is required, the difference between 25% and the proposed coverage is required to be mitigated. Even though an applicant is under on one type of impervious coverage they are not permitted to credit that difference toward the other type of impervious surface. In this case, if the Commission chooses to grant the variance then the area that exceeded the 25% building coverage. The required mitigation is 75.75 sq or 0.85% of the lot. Additionally, the commission has recognized that given our winters, a garage is more than a mere convenience. The request for a garage approaches the level of a necessity and is required to have reasonable use of a property. Given the Minnesota Supreme Court's recent decision in Krummenbacher vs City of Minnetonka variance case, if the Commission holds that a two car garage is necessary to have reasonable use of the property, the City would have the authority to grant the variance. EVALUATION OF REQUEST A variance may be granted only when all of the following conditions are found: 1. A hardship peculiar to the property, not created by any act of the owner, exists. Personal, family or financial difficulties, loss of prospective profits and neighboring violations are not hardships justifying a variance. The property at 223 Pine St W is a rectangular 60' by 149.10' lot with street frontage on two sides. The original home was constructed in 1876. The Van Horne's are in the process of expanding the home with a new bedroom addition on the rear of the home and new porches and received three variances (nonconforming structure, side yard setback, and front yard setback) to allow these additions to proceed in 2009. When the additions were proposed staff explained the lot coverage requirements and that the foot print of the home and garage counted toward the maximum lot converge. With this knowledge, the Van Horne's chose to proceed with the project without addressing a future garage. The situation the Van Horne's now face was created by their own actions; thus, the request does not satisfy the review criteria for a variance. 2. A variance is necessary for the preservation and enjoyment of substantial property rights; and, if granted, would not constitute a special privilege not enjoyed by neighbors. Additionally, the commission has recognized that given our winters, a garage is more than a mere convenience. The request for a garage approaches the level of a necessity and is required to have reasonable use of a property. Given the Minnesota Supreme Court's recent decision in Krummenbacher vs City of Minnetonka variance case, if the Commission holds that a two car garage is necessary to have reasonable use of the property the City would have the authority to grant the variance. 223 Pine St W Page 3 3. The authorizing of the variance will not be of substantial detriment to adjacent property and will not materially impair the purpose and intent of this section or the public interest nor adversely affect the comprehensive plan. As presented, this request will not adversely impact the adjoining property owners. The authorizing of the variance will not be of substantial detriment to adjacent property and will not materially impair the purpose and intent of this title or the public interest nor adversely affect the Comprehensive Plan. FINDINGS 1. The total lot coverage is a condition created by acts of the owner. 2. The variances to the impervious surface requirement is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same district and in the same vicinity; and that a variance, if granted, would not constitute a special privilege of the recipient not enjoyed by his neighbors. 3. The proposal as presented could be substantially detrimental to the adjoining property owners. With the proposed mitigation items, staff finds that the garage will not be a substantial detriment to adjacent property, will not materially impair the purpose and intent of this title, and would not necessary adversely affect the Comprehensive Plan. ALTERNATIVES The Planning Commission has the following options: 1. Deny the requested since the required findings for a variance were not meet. 2. Approve the request with the following conditions of approval: a. All minor revisions to the approved plan shall be reviewed and approved by the Community Development Director. All major revisions shall be revised and approve by the Planning Commission. Determination of the distinction between "major" and "minor" shall rest with the City Administrator. b. The City Engineer shall approve the draining calculations. 3. Continue the public hearing until the October 11, 2010 Planning Commission meeting. The 60-day decision deadline for the request is October 16, 2010. RECOMMENDATION Staff recommends denial of the request. Attachments: Applicant's Form, Site Plan, and letter. 807 North 4th Street Stillwater, MN 55082 Tel 651.430.2139 Fax 651.430.2139 email@douglasdanksassociates.com Associates August 3, 2010 City of Stillwater Planning Commission 216 Fourth Street North Stillwater, MN 55082 RE: Variance Request Application for 223 West Pine Street Members of the Commission: I have prepared this cover letter on behalf of Rick and Suzanne Van Horne, owners of the property located at 223 West Pine Street in Stillwater, Minnesota. The homeowners will be undertaking work to demolish the existing detached garage located on the site and replace it with a new detached garage that complements the architectural character of the original 1876 built house and recent additions. This letter accompanies a Variance RequestApplication and contains supporting information and documents for the application. Requested Variance The homeowners are submitting this application with a request for a variance from the zoning ordinance building impervious area 25% limit for the RB district. The impervious area for the proposed garage structure, along with the impervious building area of the existing dwellling and porches on the site exceeds the 25% impervious building area limit by approximately 2%. It should be noted that the impervious site paving area is well under the 25% limit. In addition, the homeowners will be installing a pervious paver system for the new driveway and sidewalks located in the rear yard. I would be pleased to provide additional information as required to assist the Planning Commission with its review of the Variance Request Application. Sincerely, Doug'Danks, Principal Douglas Danks Associates e Detached Garage UNDERSIDE COLLAR TIE EL. +116'-11 3/8" T.O. SHEATHING EL. +110'-4 3/4" T.O. PLATE EL. +109.-0" T.O. SLAB EL. +100'-0" T.O. FOUNDATION EL. +96'-8" UNDERSIDE COLLAR TIE EL. +116'-11 3/8" T.O. SHEATHING EL. +110.-4 3/4" T.O. PLATE EL. +109'-0" T.O. SLAB EL. +100'-0 T.O. FOUNDATION EL. +96'-8" L— J _ WEST ELEVATION EAST ELEVATION UNDERSIDE COLLAR TIE EL. +116'-11 3/8" T.O. SHEATHING EL +110'-4 3/4" T.O. PLATE EL. +109.-0" T.O. SLAB EL. +100.-0" T.O. FOUNDATION EL. +96.-8" O UNDERSIDE COLLAR TIE EL. +116'-11 3/8" T.O. SHEATHING EL +110.-4 3/4" T.O. PLATE EL +109'-0" T.O. SLAB EL. +100'-0" T.O. FOUNDATION EL. +96'-6" L SOUTH ELEVATION J / / / / L NORTH ELEVATION 223 Pine Street West Stillwater, MN 55082 OWNER/CLIENT: Rick and Suzanne Var 223 Pine Street West Stillwater, MN 55082 612.865.7425 CONSULTANTS: Associa 807 North 4i Stillwater, MN Tel 851.4E Fax 651.4: douglasdanksno r THIS ORIGINAL COPYRIGHTED D COPIED, REPRODUCED OR ALTE PART, NOR USED FOR PROZO'' PROJECT AT THE LOCATION IDE RRHOIIT WRITTEN AUTHORIUTN ANNN ASSOCIATES. DOUGLIS RETAINS THE SOLE INTELLECTU, FOR THE DESIGN DEPICTED IN NiiIINiINiNNiI MI1Nli PM REV DESCRIPTI BID PACKAGE II11II[11110IWIINI1111111HIINu1111111111111111111U SCHEMATIC EXTERIO ELEVATIC DATE: 01 SCALE: 1 PROJECT: 0 DRAWN: DI \OT FO CO\STPUCTIO\ A3.0R 111111111111111111111141111111111188111111t11111111111113th Cl Copyright Douglas D 22'-8" IIIIIIIIIUIIIIIIIIIIUIIIIII1111IIIIIIIIIIIIIINIUINU111111111111IIUIIIIIIIIIIIIINIIIIIIIINIIIIII1111 T r I I I f l l lI In n 1 I 1 F 1 STALLS 11001 0 0 MAIN LEVEL FLOOR PLAN r L 1 L J • L L 1 ROOF PLAN Van Horne Detached Garage 223 Pine Street West Stillwater, MN 55082 OWNER/CLIENT: Rick and Suzanne Van Horne 223 Pine Street West Stillwater, MN 55082 612.865.7425 IIIUIIIIIIUIIII NIMI 11011IUNiNiilliiNiillliWlll 1111IIIIIIIIIUlli11111I111iliIIIIIIIUIHVI CONSULTANTS: NN�IU1IbIiN�UUIIUIIIIIUNUUUIIUIgNUIIHiIUIIpNIVIIUNUIIIIlU11H1UlUIINIIIIUNUIUU ICII�I Associates 807 North 4th Street Stillwater, MN 55082 Tel 651.430.2139 Fax 651.430.2139 do glasdankscmuscoro net THIS ORIGINAL COPYRIGHTED DOCUMENT MAY NOT DE COPIED. REPRODUCED OR ALTERED IN WHOLE 0R IN PART, NOR USED FOR PROJECTS OTHER THAN THE PROJECT AT THE LOCATION IDENTIFIED ABOVE Wn000T WRITTEN AUTHORIZATION FROM OOUCUS DANES A550CLATES. DOUGLAS DANKS ASSOCIATES RETAINS THE SOLE INTELLECTUAL PROPERTY RIGHTS FOR THE DESIGN DEPICTED IN 1H15 DOCUMENT. iIINI11I1Igi1111MMINI NIMIRlUilINIIIUUgiUIiiUINIlU31111111gUgilpiUNI REV DESCRIPTION DATE BID PACKAGE XX/XX/10 IIgIIIgIIqIImIpDNIIIIIIIIIIIIINIIdINNINIQNNIIIIIIINIINIIIqIdI1qI111pNINIIWIWIIINIINIIIq SCHEMATIC DESIGN F❑DTING/ ) F❑UNDATIDN PLAN & FLOOR PLANS DATE: 08/31/10 SCALE: 1/4"=1'-0" \\. Ak\k\\ PORCH ADDN� SOUTH FIFTH STREET D2 REAR SIDEWALK (319 SF) ALIGN FACE OF GARAGE a WITH FACE OF EXISTI G PORCH EKISTING SIDEWALK PROPOSED GARAGE (574 SF) DRIVEWAY (488 ff) KEYED PLAN NOTES D. EXISTING ASPHALT DRIVEWAY PAVING SHALL BE REMOVED AND REPLACED WITH NEW PERVIOUS PAVER SYSTEM. 02 REAR YARD SIDEWALKS SHALL BE CONSTRUCTED WITH PERVIOUS PAVER SYSTEM. E> FRONT YARD STEPS AND SIDEWALK SHALL BE CONSTRUCTED OF IMPERVIOUS STONE PAVERS AND TREADS/RISERS SITE IMPERVIOUS SURFACE CALCULATION: TOTAL SITE LOT AREA 8,949 SF ALLOWABLE BUILDING IMPERVIOUS AREA 0 25% 2,237 SF ACTUAL BUILDING IMPERVIOUS AREA 2,313 SF EXISTING HOUSE 1,018 SF REAR ADDITION 505 SF FRONT PORCH ADDITION 128 SF WEST SIDE PORCH ADDITION 88 SF GARAGE 574 SF PERCENTAGE BUILDING IMPERVIOUS AREA 2313/8949=25.85% ALLOWABLE SITE IMPERVIOUS AREA 0 25% 2,237 SF ACTUAL SITE IMPERVIOUS AREA 899 SF DRIVEWAY 488 SF REAR SIDEWALK 319 SF FROM STEPS/SIDEWALK 61 SF PERCENTAGE SITE IMPERVIOUS AREA 868/8949=9.70% uetacnec Garage 223 Pine Street West Stillwater, MN 55082 OAANER/CLIENT: Rick and Suzanne Vat 223 Pine Street West Stillwater, MN 55082 612.865.7425 11110IItlI111111111 MIN CONSULTANTS: II�Illtlll Associa 807 North 4t Stillwater, MN Tel 651.4: Fax 651.4: dou9lasdankss1, THIS ORIGINAL COPYRIGHIE0 0 COPIED, REPRODUCED OR ALTE PART, NOR USED FOR PROJEC PROJECT AT THE LOCATION 1E WITHOUT WRITTEN AUTHORIZATN DARKS ASSOCIATES. DOUOLAS RETAINS THE SOLE INTELLECTU FOR THE DESIGN DEPICTED IN 1111111181111111111111111UNIIIIIMOIS REV DESCRIPTK BID PACKAGE pllfl IIIIIIINIII1111111111111111111101 N11121111IIN SCHEMATIC 0 SITE PLAP DATE: 01 SCALE: 1 PROJECT: 0 DRAWN: DI \OT CO\STRUCTIO\ Al .OR (IIIIIrisIIWUIIIIIIIIIWINslINIIIIIN! mogul l O Copyright Douglas P LllvareL THE BIRTHPLACE OF MINNESOTA Planning Report DATE: September 10, 2010 APPLICANT: Phil Mitchell REQUEST: Side setback variance ZONING: RA, Single -Family Residential LOCATION: 2203 Oak Ridge Road PUBLIC HEARING: September 13, 2010 REVIEWERS: City Planner, Building Official PREPARED BY: Bill Turnblad, Community Development Director T• CASE NO.: 2010-39 BACKGROUND Phil Mitchell would like to replace the existing attached garage on his home at 2203 Oak Ridge Road with a larger attached garage. Mr. Mitchell had building plans drawn up by Arrow Building Center, which indicate that the side yard setback of the proposed garage would be three feet. The existing garage has a setback of about 11 feet. Since the minimum required setback for an attached garage in the subject RA Zoning District is five feet1, the existing garage conforms with side setback standards. However, the proposed garage would have an estimated side setback of about three feet. Therefore, the proposed garage would need a setback variance of about two feet. SPECIFIC REQUEST Arrow Building Center believes the side lot line setback of the proposed garage would be three feet. Therefore, though unverified by survey, about a two foot variance is requested to allow the attached garage to be built. Per Ch 31-305(b)(3)iii. provided the separation from the garage and the neighboring house is a minimum of 15 feet. Mitchell Variance September 10, 2010 Page 2 of 3 COMMENTS ON REQUEST The current attached garage measures 13 feet wide by about 31 feet deep. It is in disrepair so the applicant would like to tear it down and build a 21 foot wide by 36 foot deep attached garage in its place. Variances to allow the construction of two car garages have by practice become fairly routine in Stillwater. However, if a two car garage can be constructed without a variance, even if configured differently than hoped by the applicant, then it is difficult to find the necessary hardship to grant a variance. In this specific case, a narrower two car garage could be built without a variance. Assuming the proposed 21' wide garage would in fact be three feet from the side property line, then a 19' by 36' garage could be built without the need for a variance. Admittedly, a 19' wide garage is too narrow to accommodate two cars in a side by side configuration. None the less, it would easily accommodate two cars in a tandem configuration. Though a tandem garage does not always give convenient access to the second vehicle, it is a configuration that is used in many "new urbanism" home designs today. For example, they may be found in Millbrook and Settler's Glen. Therefore, staff believes that a tandem two car garage is a reasonable alternative to a side by side two car garage, especially where it avoids the need for a variance. Moreover, given the Minnesota Supreme Court's recent decision in the Krummenacher vs. City of Minnetonka variance case, the City would be overstepping its authority by granting a variance where a reasonable alternative to a variance exists. ALTERNATIVES The Planning Commission has several alternative courses of action available. A. Approve If the Planning Commission finds that the side by side garage is necessary for the landowner to enjoy reasonable use of his property, then the Planning Commission could approve the variance request. A condition of approval should be that prior to issuance of a building permit, the applicant must submit a survey verifying that the garage would have at least a three foot setback from the side lot line. B. Deny If the Planning Commission finds that the side by side garage is not necessary for the landowner to enjoy reasonable use of his property, then the Planning Commission should deny the variance request. Mitchell Variance September 10, 2010 Page 3 of 3 STAFF RECOMMENDATION In light of recent Minnesota Supreme Court case, and the tandem alternative to the side by side garage, staff recommends denial of the setback variance request. cc: Phil Mitchell, applicant attachments: Zoning & Location Map Applicant's Letter Letter from Neighbor Garage layout and setbacks Elevation drawings 8/10/2010 To whom it may concern: RE: 2203 Oakridge Road The following are reasons we need a variance from the city: 1. Need for a larger garage would be to store: a. Cars b. Boat 2. Current garage is a converted car port. It was not done in a "workman" like manner. a. The back "floating" slab has sunk 1 %" The back wall (structural) is sitting on this slab. b. The framing is not up to building code. (see pictures) 3. Variances have been granted for garages to the following addresses next to me: a. 2135 Oakridge Rd (1985) b. 2209 Oakridge Rd (2' from property line on permit in 1976) c. 2213 Oakridge Rd (1997) I have shown my next door neighbor, Mark and Mary Halfen (2209 Oak Ridge Road) building plans. The following letter is something they wrote in regards after viewing my plans for the garage construction. Sincerely, Phil Mitchell August 5, 2010 To Whom It May Concern, We are Mark and Mary Halfen, homeowners at 2209 Oakridge Road. Phil Mitchell, our neighbor, has expressed a desire to build a new garage that would require a variance, because the new structure would be to near the property line. We have seen the plans, and as the homeowners with the adjoining property line requiring the variance, we have no objections to his new garage construction. Sincerely, Mark Halfen /7)7 Mary Halfen R AO' 1 A 5 1002( ••••••••.”.....,*00 0,..........r.........,.•••••••••........•••••••••••• Phil and Linda Mitchell 2203 Oak Ridge Rd Stillwater, MN 55082 90 N 0 O N to N r----- Zoning & Location Map Mitchell Variance 189 197 2501 O cM N 0 M M 0 0 co N N �� ® t-4 2307 402 to — —-DRI-F2WOOD -- -LANE --——H—IDDEN O rn 2348 2340 2332 2324 DRIVFL 201 1888 3` WEST OAK "S P c0 402 PLACE 2109 0^ c 425 N O N RI DOR — — — — -ROAD— — — 2287 2285 2283 2277 2275 2273 2257 2255 2253 2247 2205 2243 2241 2239 2237 2231 2229 2227 i" 2007 Zoning Districts A-P, Agricultural Preservation [ RA - Single Family Residential r 1 RB - Two Family �.._ TR, Traditional Residential LR, Lakeshore Residential CR, Cottage Residential CTR, Cove Traditional Residential CCR, Cove Cottage Residential CTHR, Cove Townhouse Residential ▪ TH, Townhouse { RCM - Medium Density Residential RCH - High Density Residential VC. Village Commercial - CA - General Commercial ▪ CBD - Central Business District BP-C, Business Park - Commercial ▪ BP-0, Business Park - Office 1 BP -I. Business Park - Industrial IB - Heavy Industrial ▪ CRD - Campus Research Development IV PA - Public Administration Public Works Facility ROAD - Railroad WATER Property in Township 104 06: 81 Phil and Linda Mitchell 2203 Oak Ridge Rd Stillwater, MN 55082 Ye-1)v 4 — -21".171- -7(/-• 7r • ;1,„. Lfi ; . I , tA \ Ti—i_,L, ,,.::":".,e\--12. , ; 1 / / r:1/..-} 44- 4 . _ ;`i 1-/fi f? or) (:•-• . I Phil and Linda Mitchell 2203 Oak Ridge Rd Stillwater, MN 55082 al " 4-$1: if - C.)ut,,11:2A-1-16-)N1 tl` ip^(-0" Phil and Linda Mitchell 2203 Oak Ridge Rd Stillwater, MN 55082 Clx 1 -1- i/1 . pl-to /I --7 river' 111^).4 1410. / ( n-1764-7-- / woup.\vv,71- 147 x ;(p- rz.wovik; 0 s- 07/4.-/ ltr" rktimourt- 117 fliP-`0" JUNQOvJ tvvi 'If I- 1 f it 3 a 2 2 I A t Planning Commission DATE: September 10, 2010 OWNER: Mike McGuire CASE NO.: 10-40 REQUEST: A special use permit for a restaurant and variance to the parking requirements LOCATION: 413 Nelson St E COMPREHENSIVE PLAN DISTRICT: DMU - Downtown Mixed Use ZONING: CBD - Central Business District PC DATE: September 13, 2010 REVIEWERS: City Attorney and Community Dev. Director PREPARED BY: Michel Pogge, City Planner' BACKGROUND The applicant, Mike McGuire, is requesting a special use permit to allow a restaurant1 and a parking variance for a new coffee shop in the Commander Elevator building located at 413 Nelson St E. As a retail use on the lower level, the site currently has a surplus of one parking space. Converting the retail use to a coffee shop use will require an additional eight parking spaces leaving a deficient of seven parking spaces on the site. Per the zoning code in §31-325, coffee shops are defined as a restaurant. 413 Nelson St E Page 2 EVALUATION OF REQUEST Special Use Permit Sec. 31-207(d) of the City Code states that a Special Use Permit can be approved if the Planning Commission finds that: (1) The proposed use conforms to the requirements and the intent of the Zoning Ordinance, the Comprehensive Plan, and any relevant area plans. Zoning Ordinance Parking - 21 parking spaces are provided on the site. Based on the parking demands of the tenants, uses in the building, and this change in use the total required parking for this site is 28 parking spaces. A variance of seven parking spaces is needed. (2) Any additional conditions necessary for the public interest have been imposed. Miscellaneous • Plans and the use will need to be approved by the engineering, fire and building officials before the issuance of a building permit. • All changes to the approved plans will need to be reviewed and approved by the Community Development Director. Any major changes will need to go to the Planning Commission and/or Heritage Preservation Commission for review and approval as appropriate. (3) The use or structure will not constitute a nuisance or be detrimental to the public welfare of the community. • Staff finds this criterion to be satisfied. Variance As mentioned above, a coffee shop will generate the need for seven additional parking spaces to meet the Zoning Code regulation. Consequently a variance from the parking requirement has been requested. It has become common in the downtown zoning district to view the re -use of existing space as grounds for satisfying the "hardship" criteria for variance requests. Obviously, the existing set of circumstances prevents the business from creating the required number of on -site parking spaces. It is for situations such as these that Section 31-510, Subd. 1 (d)(1)i of the Zoning Ordinance was written. It allows for "alternative provisions" when the property being considered is in a parking district. The City has established a downtown parking district, which would allow for such "alternative provisions". Only in new construction has the City aggressively required the construction of new parking spaces. About the only consistent "alternative provision" that the City has required under these circumstances is that property owners purchase monthly parking permits for the required number of spaces. This encourages the parking user to park in lots that are a little further away from the site, allowing closer free parking to be used by visitors. 413 Nelson St E Page 3 A reasonable alternative to use the site as a retail space exists without the need to grant a parking variance. Moreover, given the Minnesota Supreme Court's recent decision in the Krummenacher vs City of Minnetonka variance case, the City could be overstepping its authority by granting a variance where a reasonable alternative to a variance exists. However, given the fact that the City is in the process of providing an alternative to the variance process for sites located in a parking district and given the fact that time is of existence in this case, it is the opinion of the City Attorney that a variance could be issued in this case, if the Commission so chooses. With that in mind and in keeping with past practices, staff finds the variance review criteria to be met and would recommend approval of the variance with the condition that the property owner be required to purchase five monthly parking permits for site. ALTERNATIVES The Planning Commission has the following options: 1. Approve the requests in whole or in part. 2. Deny the requests. 3. Continue the request for more information. The 60 day decision deadline for the request is October 19, 2010 and the next Planning Commission meeting is scheduled for October 11, 2010. STAFF RECOMMENDATION Approve the special use permit and variance as conditioned. CONDITIONS FOR APPROVAL If the Commission chooses to approve the project, staff would recommend the following conditions of approval: 1. All changes to the approved plans will need to be reviewed and approved by the Community Development Director. Any major changes will need to go to the Planning Commission or Heritage Preservation Commission for review and approval. 2. Plans and the use will need to be approved by the engineering, fire and building officials before the issuance of a building permit. 3. Any exterior changes, including signage, any vents or mechanical equipment, and/ or any building penetrations, requires review and consideration by the HPC prior to their installation. 4. Any trash dumpster shall be enclosed and screened as required by the downtown design guidelines. 5. The property owner shall purchase seven monthly parking permits to compensate for deficit in on -site parking. attachments: Applicant's Form and packet michael mcguire architect 409 east nelson street Stillwater mn 5 5 0 8 2 l'-\19 16 om M UIYrve trAl; A -S'e-4-Sttc-) (14,W 6\ tt-kiE U(-) oF mA)N( oF tUE "t/e/V-1--ro'r N&I-IML--(to'WE:fi3t) 12(d I A5(AA --rb ?(-95S1t:E COret, 0017c VE -EAM 9r2a( fAiiNel)Mi IA41tAriC, MAIN 1Arl)OLZ ftiooi Or -TILE, I. 1) C:K AMgrome k 1416 AP'huitioN) FoM/\*:t- L1,-VE0<, uCr 16, &I,te, of- k,-,30'[ vs;211e-AS YW\k3 16 col)tcs oF V\NvM6. v(Aki '4.Wc)vivc-cDK 1--13'?\,(41/‘,A. 651 • 439 3710 fax 651 • 439 (A959 c9. 61° \} \\ &$ ¥® \ Z� « ¥€tS : 12 z & + 4 }� Planning Commission DATE: September 10, 2010 APPLICANT: Mark Balay, Balay Architects CASE NO.: 2010-41 REQUEST: A Special Use Permit for 2159 Curve Crest Blvd to operate a Cultural Facility for Washington County Historical Society LOCATION: 2159 Curve Crest Blvd COMPREHENSIVE PLAN DISTRICT: C - Commercial ZONING: BP-0 - Business Park - Office PC DATE: September 13, 2010 REVIEWED BY: Community Development Director PREPARED BY: Michel J. Pogge, City Planner' BACKGROUND The applicant is seeking to develop a "History Center" for Washington County Historical Society in the former Simonet Furniture Building located at 2159 Curve Crest Blvd. To accomplish this they are requesting a Special Use Permit to operate a Cultural Facility at the site. Washington County Historical Society is proceeding with this SUP permit request now as part of the process to purchase the property and prior to their formal fund raising campaign. Washington County Historical Society hopes to kick off their fund raising campaign for the project shortly after they secure a SUP from the City for the project. 2159 Curve Crest Blvd Special Use Permit Request Page 2 of 3 EVALUATION OF REQUEST Sec. 31-207(d) of the City Code states that a Special Use Peiniit can be approved if the Planning Commission finds that: (1) The proposed use conforms to the requirements and the intent of the Zoning Ordinance, the Comprehensive Plan, and any relevant area plans. Zoning Ordinance Parking — The site currently has 50 parking spaces. The space in the building will be split with 21,478 square feet of gallery space which requires 43 parking spaces and 6,729 square feet of warehouse space for displays which requires 7 parking spaces. Therefore, the total required number of parking spaces for the proposed use is 50. The applicant has discussed that they may lease some of the space to tenants to help defray the overall cost of the project. Also, they may develop a small theater area in the building sometime in the future. If either of these would occur in the future, depending on the demand of the uses, additional parking may need to be developed on the site and would require a revision to the approved Special Use Permit. (2) Any additional conditions necessary for the public interest have been imposed. Exterior changes — Section 31-319 of the Stillwater City Code requires that the Heritage Preservation Commission conduct a design review on exterior changes and signage. The applicant has indicated to staff they understand this and plan to submit for these approvals before they formally proceed with the project. Miscellaneous • Plans and the use will need to be approved by the engineering, fire and building officials before the issuance of a building permit. • All changes to the approved plans will need to be reviewed and approved by the Community Development Director. Any major changes will need to go to the Planning Commission or Heritage Preservation Commission for review and approval. (3) The use or structure will not constitute a nuisance or be detrimental to the public welfare of the community. • Staff finds this criterion to be satisfied with the conditions/requirements in the proposed ordinance. 2159 Curve Crest Blvd Special Use Permit Request Page 3 of 3 ALTERNATIVES The Planning Commission has the following options: 1) Approve the Special Use Peiiuit as conditioned. 2) Deny the Special Use Permit. 3) Table the requests for more information. RECOMMENDATIONS Approve the Special Use Permit as conditioned. CONDITIONS FOR APPROVAL If the Commission chooses to approve the project, staff would recommend the following conditions of approval: 1. All changes to the approved plans will need to be reviewed and approved by the Community Development Director. Any major changes will need to go to the Planning Commission or Heritage Preservation Commission for review and approval. 2. Plans and the use will need to be approved by the engineering, fire and building officials before the issuance of a building permit. Mark S. Balay, RA S t i I I w a t e r M i n n e s o 110 East Myrtle Street, Suite 100 Stillwater, Minnesota 55082 (651) 430-3312 6/18//10 City of Stillwater Attn: Michel Pogge 216 N. Fourth St. Stillwater, MN 55082 Michael E. Balay, RA I n d i a n a p o I i s I n d i a n a 8878 South Street Fishers, Indiana 46038 (317) 845-9402 Dear Mr. Pogge and Planning Commission Members: This letter is written in support of an application, by the Washington County Historical Society, for a Special Use Permit to operate a Historical Museum Facility at 2159 Curve Crest Blvd. West , formerly the Simonet Furniture Building. The Washington County Historical Society has entered into a purchase agreement with the building's owner and is preparing to raise funds for the purpose of acquiring, renovating and operating a History Center on the property in addition to the existing Wardens House Museum and Hay Lake School. The establishment of a "History Center" facility will allow Washington County Historical Society to program Living History at the Warden's House which currently houses the display and storage space for the organization. It furthermore will allow for continued grow of the collection and interactive and interpretive displays of countywide history. In the future is our hope to establish a museum quality space which can also qualify for and accept traveling exhibits as an amenity to our entire county as especially the greater Stillwater community. The existing property is in full compliance with all the requirements of the current zoning and our proposed usage will not alter that physical build out. We have recalculated the parking requirements and confirmed with you that current parking supplied is adequate based upon your interpretation that we are similar to an Art Gallery in use, and intend to keep the existing warehouse space for storage only. We request that you issue a Special Use Permit for our occupancy as a Historical Museum. This will meet the requirements of our real estate purchase agreement and provide us with a confirmation of basic use zoning compliance required by potential financial benefactors of this project. Thank you for your consideration and we look forward to visiting with you and answering any questions Sept. 13 at the public hearing. Sincerely, ark S. Balay Mark S. Balay Architects, Inc. Enc. CC: Brent Peterson, Washington County Historical Society P. MOW. IMAM MO. '" a,- . NA•.,m»,.i.reX}. tllOS3NNIW 2131tlM11IiS n saa� anan� 6� 1Z M PIE el1N]a .IeOlSIH SHAM Jo) s}uawanoJdwm pIoyasoai }uouual e u o! p N I c! I o e• p c 1 // • 1 anOCC--O,((o19 lu aryom =,� ,9) ,�'��s��" ^ "� d e a�da A321 NOLLd121753O 'LW 31,13 HWry E A O3x33N3 ,ON Ord. at aB MOW Yiva '0•10 c 1 0•• u ! 11 i• 1 0. II 1 S loll NI. H gin, \010\ SVM CALCULATION Ne -<c 0 HANDICAP SPACE CD o 0 c Li) LC-) o 0 II xU� WAREHOUSE = s gate THE BI ATM PLACE OF MINNESOTA Planning Report DATE: September 7, 2010 APPLICANT: City of Stillwater CASE NO.: 2010-12 REQUEST: Consider amending Building Code for Swimming Pools HEARING DATES: City Council: April 6, 2010 Planning Commission: July 12, August 9, September 13, 2010 REPORT AUTHOR: Bill Turnblad, Community Development Director INTRODUCTION The City Council held a public hearing on April 6, 2010 to discuss the possibility of requiring safety fencing around all swimming pools. Prior to drafting an ordinance amendment related to safety barriers, the Council directed staff to organize a discussion group of those who gave. testimony at the April 6 hearing. Invitations were extended to everyone who gave testimony and the group met on May 26 and June 9 to discuss the topic. Participants included: Councilmember Roush; Ann Sundberg-Siess, 170 Interlaken Way Court (resident); Marie and Dennis Lennartson, 2201 Bayberry Avenue (residents); Kevin Balfanz, 313 West Sycamore Street (certified safety professional); and Bill Turnblad. On June 15, 2010 the City Council received and considered the discussion group's recommendations. The Council was split on whether fences should be required for all new pools. So the Council requested the Planning Commission to hold a public hearing to further consider the situation. Specifically, the Council would like the Commission to make a recommendation on whether: 1) new at -grade swimming pools should have safety fences, and 2) if safety fences are required for new at -grade pools, should the legal non -conforming safety covers be allowed to continue, and if so, for what length of time? On July 12, 2010 the Planning Commission opened its public hearing, but due to the late hour of the meeting, continued the hearing without discussion until August 9, 2010. On August 9th the Planning Commission discussed the topic of swimming pool barriers. Public testimony was received and the public hearing was closed. However, a decision on the matter was tabled so City staff could bring back a definition for pool covers. Swimming pool safety barriers September 7, 2010 Page 2 of 5 ANALYSIS Standards Development Organizations The American National Standards Institute (ANSI) is recognized as the premier standards organization in the United States. It accredits standards that are developed by standards development organizations, government agencies, consumer groups, companies, and others. These standards help ensure that the characteristics and perfointance of products are consistent, that people use the same definitions and terms, and that products are tested the same way. The American Society for Testing and Materials (ASTM International) has received accreditation from ANSI for developing a wide spectrum of standards and specifications. One of the areas for which ASTM has developed accredited standards and specifications is swimming pool barriers. In their publication entitled "Standard Performance Specifications for Safety Covers and Labeling Requirements for All Covers for Swimming Pools, Spas and Hot Tubs (F 1346-91 Reapproved 2003)" the society presents definitions and specifications for various pool covers. Definition of Power Safety Cover The pool cover under consideration by the City is referred to in ASTM F 1346-91 as a "power safety cover". It is defined in Paragraph 3.1.16 of the publication as "a barrier which can be placed over the water area and removed with a motorized mechanism actuated by a suitable control mechanism. Provides a high level of safety for children under the age of five by inhibiting their access to the water." ASTM F 1346-91 does not provide guidance concerning the most effective barriers for swimming pools. What it does is provide definitions and manufacturing specifications for various types of covers. The ASTM publication that gives guidance on which barriers and safety devices to use is entitled "Standard Guide for Use of a Residential Swimming Pool, Spa, and Hot Tub Safety Audit to Prevent Unintentional Drowning (ASTM F 2518-06)". This publication will be referred to as the "ASTM pool audit" throughout this report. Effective Barriers 1. ASTM Recommendations The ASTM pool audit presents a practical "layers of protection" system that encourages redundancies in protection. A list of protection devices and barriers are included in their audit report, and each one is given a point value. A combination of protection devices equaling a total of seven points is advised, but eight points or more are recommended. A safety fence or wall constructed around the entire pool according to ASTM standards, with a self -closing and self -latching gate on the fence is worth six points. To reach the minimum seven points, self -latching and self -closing doors on the house could be added. (This seven point level can be reached even if electricity fails.) To reach the recommended eight points a pool alarm (two points for a total of eight points), gate alarm (two points for a total of eight points) or a Swimming pool safety barriers September 7, 2010 Page 3 of 5 power safety cover (three points for a total of nine points) would need to be added to the fence layer of protection. A power safety cover is worth three points. The advised seven points or recommended eight points could be earned with a power safety cover together with other layers of protection, though they become considerably more complicated than protection with a fence. For example, the power safety cover (three points) could be combined with a removable mesh fence with gate (three points for a total of six points) AND door alarms on doors in the home (two points for a total of eight points) OR a pool alarm (two points for a total of eight points). If the pool owner does not want to have the removable mesh fence with gate around the pool, then the following combination would be possible: power safety cover (three points), AND house door alarms (two points for a total of five points) AND self -closing and self -latching house doors (one point for a total of six points), AND a pool alarm (two points for a total of eight points). If electrical power fails, seven points of protection are not possible without either a permanent or a removable safety fence. 2. CPSC Recommendations The U.S. Consumer Product Safety Commission (CPSC) recommends in their publication entitled "Safety Barrier Guidelines for Home Pools" (Pub. No. 362), that "the best way to reduce child drowning in residential pools [i]s for [a] pool owner to construct and maintain [a] barrier..." They go on in the publication to define a "barrier" as "a fence, a wall, a building wall or a combination thereof which completely surrounds the swimming pool and obstructs access to the swimming pool."t In addition, where the wall of a dwelling serves as part of the barrier, all house doors with direct access to the pool should have alarms, or the pool should be equipped with a power safety cover that complies with ASTM F 1346-91. The publication emphasizes that construction and maintenance of barriers does not substitute for diligent supervision. 3. CDC Recommendations In their publication entitled "Unintentional Drowning: Fact Sheet"(updated June 27, 2010), the Centers for Disease Control and Prevention (CDC) recommends that residential swimming pools have "a four-sided pool fence that completely separates the house and play area of a yard from the pool area". Also, the CDC recommends considering installing other barriers along with the four-sided pool fence. Publication No. 362 includes specifications for safety fences. Also, ASTM F 1908-08 establishes a set of specifications for residential pool safety fences. One or the other should be referenced if the City ordinance is amended. Swimming pool safety barriers September 7, 2010 Page 4 of 5 4. Summary of Recommendations Though some of these standards development organizations recommend four-sided fencing with its applicable fence safety equipment as a stand-alone barrier for residential swimming pools, none of them recommends a power safety cover as a stand-alone safety barrier. Pool Discussion Group Conclusions The City's pool discussion group had a split opinion concerning whether a safety pool cover was sufficient by itself. But the group did reach a consensus on the following: • Out of an abundance of caution, require all new permanent swimming pools to have a vertical safety enclosure around the pool. The vertical safety enclosure could include fencing (at least 48" tall), walls (at least 48" tall), natural barriers such as bluffs, or if approved by the Building Official other enclosures of sufficient density and strength to be impenetrable. • Safety covers as a supplement to the vertical pool enclosure would be optional. • Legal non-confoiniing swimming pools that were only protected with pool covers should be allowed to continue without the addition of a vertical safety enclosure for a period of time. • One suggestion from the discussion group was that the "grace period" for legal non- confoilning safety covers might be until the home was sold to someone else. But, City Attorney Magnusson notes that it is not possible to enforce the "change of hands" time period. As an alternate, he suggests that it would be possible to file a notice in chain of title on a property stating that the pool cover is non -compliant and that by a specified date, a safety fence or other enclosure approved by the Building Official would have to be installed. That date could be five or ten years, for example. • Fourteen at grade swimming pools have been issued permits since the safety enclosure requirement was amended to allow pool covers on June 21, 2005. An undetermined number of these pool owners chose not to have safety fences. ALTERNATIVES The Planning Commission has several alternative courses of action available. After the Commission adopts a preferred alternative, City staff will draft an ordinance amendment that reflects the preference. That draft amendment would be brought back to the next Planning Commission meeting for review before it is forwarded to the City Council. 1. Amend the City Code to require a pool barrier that is compliant with CPSC Publication No. 362. [Essentially this is to require safety fencing or walls.] Existing at -grade swimming pools that have legal non -conforming pool covers would have to replace or augment them with a compliant barrier. 2. Amend the City Code to require a pool barrier that is compliant with CPSC Publication No. 362. Legal non-confoiniing at -grade pool covers could remain in place for five or ten years. (A specific time period should be recommended.) Swimming pool safety barriers September 7, 2010 Page 5 of 5 3. Amend the City Code to require new at grade pools to have layers of protection worth at least seven points in the ASTM pool audit system. 4. Leave the City Code as it is. This would allow at -grade pool owners to decide for themselves whether to use safety covers, or safety fences/walls. The difference between this alternative and Alternative 3 is that this alternative does not require layers of protection. A safety fence OR a safety pool cover would be sufficient. If this is the Planning Commission's preference, staff suggests that the Planning Commission specify that only a "power safety cover" compliant with ASTM F 1346-91 (Reapproved 2003) would be considered acceptable as a pool cover. 5. Table the hearing until October 11, 2010 for more information. STAFF RECOMMENDATION While the ASTM pool audit approach is the most comprehensive, it is fairly complicated for pool owners to understand and for the City building department to administer. In addition, if there is an electrical power failure, the layers of protection possible through the ASTM pool audit likely would no longer provide an acceptable level of protection, whereas the CPSC recommendations offer a greater level of protection even in the event of a power failure. Therefore, City staff believes the CPSC recommendations represent a reasonable minimum standard for swimming pool barriers. Attachments: August 4, 2010 memo Excepts from June 15 City Council Minutes Email exchange with the McKeowns cc: Pool discussion group members Dan McKeown bt THE BIRTHPLACE OF M#NNESOTA Planning Report DATE: August 4, 2010 APPLICANT: City of Stillwater CASE NO.: 2010-12 REQUEST: Consider amending Building Code to require Vertical Safety Enclosures (e.g. Fences) for Swimming Pools HEARING DATE: July 12 & August 9, 2010 REPORT AUTHOR: Bill Turnblad, Community Development Director INTRODUCTION The City Council held a public hearing on April 6, 2010 to discuss the possibility of requiring safety fencing around all swimming pools. Prior to drafting any ordinance amendment related to safety enclosures, the Council directed staff to organize a discussion group of those who gave testimony at the April 6 hearing. Invitations were extended to everyone who gave testimony and the discussion group met on May 26 and June 9. Participants included: Councilmember Roush; Ann Sundberg-Siess, 170 Interlachen Way Court (resident); Marie and Dennis Lennartson, 2201 Bayberry Avenue (residents); Kevin Balfanz, 313 West Sycamore Street (certified safety professional); and Bill Tumblad. On June 15, 2010 the City Council received and considered the discussion group's recommendations. The Council was split on whether fences should be required for new pools, and whether pool covers should be replaced with fences if the ordinance were to be changed. So the Council would like the Planning Commission to hold a public hearing to further consider the situation. Specifically, the Council would like the Commission to make a recommendation on whether: 1) new at grade swimming pools should have safety fences, and 2) if safety fences are required for new at grade pools, should the legal non -conforming safety covers be allowed to continue, and if so, for what length of time? On July 12, 2010 the Planning Commission opened the public hearing, but given the late hour of the meeting, continued the hearing without discussion until August 9, 2010. COMMENTS The discussion group had a split opinion concerning whether a safety pool cover was sufficient by itself. But the group did reach a consensus on the following: Swimming pool safety enclosures August 4, 2010 Page 2 • Out of an abundance of caution, require all new permanent swimming pools to have a vertical safety enclosure around the pool. The vertical safety enclosure could include fencing (at least 48" tall), walls (at least 48" tall), natural barriers such as bluffs, or if approved by the Building Official other enclosures of sufficient density and strength to be impenetrable. • Safety covers as a supplement to the vertical pool enclosure would be optional. • Legal non -conforming swimming pools that were only protected with pool covers should be allowed to continue without the addition of a vertical safety enclosure for a period of time. One suggestion from the discussion group was that the "grace period" for legal non -conforming safety covers might be until the home was sold to someone else. But, City Attorney Magnusson notes that it is not possible to enforce the "change of hands" time period. As an alternate, he suggests that it would be possible to file a notice in chain of title on a property stating that the pool cover is non -compliant and that by a specified date, a safety fence or other enclosure approved by the Building Official would have to be installed. That date could be five or ten years, for example. Fourteen at grade swimming pools have been issued peiiiiits since the safety enclosure requirement was amended to allow pool covers on June 21, 2005. An undeteiniined number of these pool owners chose not to have safety fences. ALTERNATIVES The Planning Commission has several alternative courses of action available. They include: 1. Recommend that the Council amend the City Code to require vertical safety enclosures around all at grade swimming pools. Existing at grade swimming pools that only have covers would have to replace or augment them with a vertical safety enclosure. 2. Recommend that the Council amend the City Code to require vertical safety enclosures around all NEW at grade swimming pools. Legal non -conforming at grade pool covers could remain in place for five or ten years. (A specific time period should be recommended.) 3. Recommend that the Council leave the City Code as it is. This would allow the at grade pool owner to decide for themselves whether to use safety covers, or vertical safety enclosures. If this recommendation is forwarded to the Council, it may be prudent to specify which pool covers would be considered acceptable. 4. Table the hearing until September 13, 2010 for more information. Attachments: May 26, 2010 memo Excepts from June 15 City Council Minutes Proposed Code Amendment Email exchange with the McKeowns bt City Council Meeting June 15, 2010 Councilmember Gag said he would like to see some information regarding the financial implications of taking over the WMO duties. Mr. Werre added that Middle St. Croix has worked with residents to install rain gardens around McKusick, but noted that Brown's Creek Watershed District provides those same kinds of services; he agreed with Mayor Harycki about the possible benefit of withdrawal from the WMO. Possible appointment to Board of Water Commissioners Motion by Councilmember Polehna, seconded by Councilmember Gag to adopt Resolution 2010-92, Appointment of Adam Nyberg to the Board of Water Ayes: Councilmembers Cook, Gag, Polehna, Roush and Mayor Harycki Nays: None Possible acceptance of bids and awarding contract for 2010 Seal Coating Public Works Director Sanders said bids for the seal coating project were opened June 3. He said the bid received was for $272,842, which included the communities of Stillwater, Oak Park Heights, Baytown Township, Stillwater Township and Bayport. Stillwater's cost would be $106,000 and that $100,000 was budgeted for seal coat. He said approval of the bid is sought, with staff to monitor quantities to keep the cost within the $100,000 budgeted. Motion by Councilmember Roush, seconded by Councilmember Polehna to adopt Resolution 2010-93, accepting bid and awarding contract for 2010 Street Sealcoat Project (Project 2010-04). Ayes: Councilmembers Cook, Gag, Polehna, Roush and Mayor Harycki Nays: None Swimming pool covers Community Development Director Turnblad noted that several months ago the Council held a public hearing regarding swimming pool enclosures that led to the formation of a discussion group to look at the issue. He said the group has met twice and was unable to come to a unanimous opinion as to whether safety pool covers are sufficient by themselves but did reach consensus on a number of items. The group agreed that from this point forward, pools need to have safety enclosures — 48" high and impenetrable — and also agreed that owners of legal non -conforming pools (without fences) should be allowed to have those for a certain amount of time, such as until the sale of home. Page 9 of 10 City Council Meeting June 15, 2010 Mr. Turnblad noted it is difficult to enforce something tied to change of ownership and City Attorney Magnuson recommended that a notice be filed with the chain of title that states the pool cover was non -compliant and that a fence would have to be added within a certain amount of time. Mayor Harycki asked how many non -conforming pools there are; Mr. Turnblad said there could be as many as 14. Councilmember Roush noted the real issue is whether or not to grandfather the non -compliant pools and what type of grace period should be allowed to implement the new requirement for fences should the non -compliant pools not be grandfathered. There was discussion about parental responsibility and the makeup of the discussion group. Motion by Councilmember Gag, seconded by Councilmember Roush to send the issue to the Planning Commission for public hearing and recommendation to Council. COMMUNICATIONS/REQUESTS Mayor Harycki noted that Peter Cox would be leaving the Gazette; the Council wished him well. COUNCIL REQUEST ITEMS Councilmember Polehna reported on the activities of the Yellow Ribbon Network. He stated a joint meeting would be held with the Lake Elmo group. He said a Black Hawk helicopter will land in Lowell Park as part of the 4th of July festivities. He noted the Red Bulls would be serving as grand marshals of the Lumberjack Days parade. ADJOURNMENT Motion by Councilmember Roush, seconded by Councilmember Poo adjourn at 9:08 p.m. All in favor. Diane F. Ward, City Clerk K Page 10 of 10 , Mayor Re pool fence issue follow-up eamil.txt From: DANIEL W MCKEOWN [danmckeown@comcast.net] Sent: Monday, August 02, 2010 9:25 PM To: Jim Roush Cc: Bill Turnblad subject: Re: pool fence issue follow-up eamil Jim, Thanks for your thoughtful response. I would agree that the word covers is vague but I assume that Bill in reviewing all permits clarifies what a cover means and what is permitted. The same uncertainty could be made for the terms fence or walls. The key point here is a valid safety measure. Your point that if a cover is removed, then the pool is not compliant is true and the same would hold if you removed the fence or removed or left any gate permanently open. Which my view is that gates are open many times anyways. I have had very good experience with my cover and I had one failure and due to it's nature, the people from Poolside came out immediately and repaired it. My problem was that the cover would not open. If a cover was left open due to failure, then a temporary fence is the only logical choice which would be true if a fence wads damaged in a storm or a gate broken. I have had my garage doors break where my house is unsecured and it required immediate repair. My recommendation to you and Bill is to expand on the definition of pool cover much as the ordinance has on fencing. This would include covering all parts of open water, requiring a certain minimum weight level, and a lockable switch to prevent unauthorized access. A similar code is written for hot tubs requiring certain switches, shutoff's and distance from the tub to prevent electrocution and to have immediate shutoff in the event of some drain issue. Clarifying is a more reasonable approach since in addresses a lack of clarity in the original ordinance, ensures that safety measures are considered, and allows current owners who have covered these issues to remain compliant without incurring new expense. These covers are very expensive to install and integrate into their pool. I will not be in town for the next planning meeting. I will be at the Liberty meeting about Roman's restaurant in order to hear my neighbors concerns. I believe that Ken and Mike will be there so i will try to introduce myself to them. Thanks for your response and I hope these changes can be incorporated into the ordinance that will be proposed. i would have joined you at earlier meetings but I was made aware of this very recently. Dan On Jul 30, 2010, at 8:47 PM, Jim Roush wrote: > Dan, > • To your question about safety covers, the current ordinance does not refer to safety covers, but rather just "covers." Covers come in all types and functions: safety covers, Winter Covers, solar heating Covers, etc... . > > Hence, if taken literally, a solar heating cover meets the current ordinance as a level of safety, which of course is absurd. In addition, as the ordinance is currently written and as I previously mentioned, as soon as any such cover is removed from the pool, that pool is technically not compliant at that time, which again, is absurd. Page 1 Re pool fence issue follow-up eamil.txt > • As a pool owner myself, I have a safety cover and a fence. My safety cover (top of the line) has been out of service 2 times in recent years. Both times, the pool was open for 1 week while the problem was being resolved. Had I not had a fence, this pool would have been exposed and a nuisance/hazard to our community. Having a fence, prevented this from occurring. > • It is obvious that the current ordinance is not written to satisfy the needs of our community. If you have specific terminology that you wish to be considered in the new ordinance, we would most certainly be pleased to receive it and take it into consideration. > • Best regards, > Jim Roush > City Councilman, Ward 3 > City of Stillwater > • From: DANIEL W MCKEOWN [mailto:danmckeown@comcast.net] > Sent: Fri 7/23/2010 10:40 PM > To: Jim Roush > subject: Re: pool fence issue follow-up eamil > Jim, > • z am little confused. we contacted the city before we built the pool and were told the covers are approved. we submitted a permit to build which was approved by the city. so to say the ordinance does not approve safety covers is the opposite of what we were told and what was approved. > in my view, the change it is a change in ordinance not a clarification from a homeowner's perspective. I have read the ordinance and specifically says that covers are method to safeguard the pool from children under the section safety enclosure. To have the word covers removed is clearly a change in ordinance and change in policy for the city. > • so i need some help here in understanding why you see this is unclear yet by removing the word covers it is more clear. It refers to other methods too such as walls or screening but does not specify the means or methods to ensure safety. This is true for covers also. > under the fencing, it does not clarify if the fence must be open or closed when in use. > • it would be better to specify how safety covers should be used and controlled rather than strike them totally. Since they are in my view more effective and easier to determine if the pool is secure or not, it would be helpful to define the expectations for the owners on operation similar to the fence definition. I can also suggest that many fences can be left open and unsecured and unless an owner walked the perimeter each night, you would not know if you pool is or is not secure. with a cover, it is obvious if it is open or closed. > • so please update me on why you feel the ordinance does not refer to safety covers. Page 2 Re pool fence issue follow-up eamil.txt > • Dan McKeown > • On Jul 21, 2010, at 2:34 PM, Jim Roush wrote: » Dear Mr. McKeown, » Thank you for your input regarding this issue. I would like to add to Mr. Turnblad's comments that, the current ordinance is written such that safety covers are not specifically named as approved safety barriers. It is in fact, written such that if a pool owner removes any existing cover (such as to actually use their pool), the pool is then at that time, non -compliant. Please refer to the pervious and current ordinances to help you see why we must re- address this issue » Best regards, » Jim Roush » City Councilman, ward 3 » City of Stillwater » From: DANIEL W MCKEOWN [mailto:danmckeown@comcast.net] » Sent: Thu 7/15/2010 12:53 AM » To: Bill Turnblad » Cc: Ken Harycki; Robert Gag; Micky cook; Jim Roush; Mike Polehna » Subject: Re: pool fence issue follow-up eamil » Hi Bill, » Thank you so much for getting back to us. » i get the strong feeling that the group that is looking into this does not want to grandfather in any pools as you stated and is biased against the covers and their proven safety. I was hoping that maybe they would consider grandfathering in a safety covered pool » that is on acreage and is in a private location. It is just so odd that it has passed our city's vote and the issue was resolved and that the insurance companies also agree that the covers are safe, and here it is back up for discussion. It baffles us some. we wonder who is on this committee, how it was selected, and if the committee has a balance of neutral members who can be objective. » My husband is very concerned that a fence around our pool will bring » down our property value. It would be an eye soar on our property, » not to mention a huge financial cost to us. when we built the pool, they city would not allow any retaining walls around a pool of any small height, because of a pool that was put in in Liberty that had some boulders around it, so we had to move the location which meant we had to take out the septic tank and hook to city water. This was a huge task and a huge cost. We learned the fencing and cover rules and placed our pool accordingly and purchased a very expensive cover to meet the requirement. we have followed the cities requirements to a "T" and have paid dearly for it already. To have this issue come up now is a great surprise to us and a very big concern. How much more will we have to pay for something that we did correct in the first place? Our pool has only been in a few years! Page 3 Re pool fence issue follow-up eamil.txt » Again, please pass this along to this committee and ask that we please be grandfathered in. our property is so unique. It is a renovated barn on acreage and on a lake and is so tranquil and private. we have placed the pool so you can see the lake and forrest near it, a fence would be such an eye soar. » Quite frankly, one could drown in our lake much easier than our pool » with the safety cover on it. To not be grandfathered in would be a huge blow to us. we have followed the cities rules in building, placing and covering our pool at a huge financial cost already, please honor that. We are not interested in a grace period as you stated. » Thank you for including our emails in the planning commissioner's agenda packets for next month. And thank you for letting us know when the next meeting is as we will surely hope to attend it. » very Sincerely, » Heidi and Dan McKeown » on Jul 14, 2010, at 9:56 AM, Bill Turnblad wrote: » Heidi and Dan, » A public hearing was set for the planning commission on July 12 to discuss a possible ordinance amendment. The agenda was so lengthy that we did not get to the item until after 11:30 PM, so it was tabled until the next commission meeting which is August 9th. » The ordinance amendment that is being discussed is to require all NEW pools to have a safety fence. other safety features are the owner's option, but the fence would be a requirement. » One issue to be resolved yet is what would be required of pools that have legally existing safety covers. would they be "grandfathered"? or would they be required to have a safety fence? If a safety fence is required for them, what grace period would be allowed? The pool safety discussion group that was formed to make a recommendation on the issues feels that they should not be grandfathered, but that a liberal grace period should be granted. » In any event, I will include your emails in the planning commissioners' agenda packets for next month. And, if you are interested, please attend the hearing on August 9th so that you can offer your comments in person. » <image001.jpg> » Bill Turnblad » Community Development Director City of Stillwater 651.430-8821 (direct) » From: DANIEL W MCKEOWN [mailto:danmckeown@comcast.net] » Sent: Tuesday, July 13, 2010 11:53 PM » To: Bill Turnblad; Ken Harycki; Robert Gag; Micky cook; Jim Roush; Mike Polehna » Subject: Fwd: pool fence issue follow-up eamil » Greetings Again to Mr. Mayor and city Counsel Members and also » to Bill Turnblad, » My husband was just looking on- line to try and learn more about this Page 4 Re pool fence issue follow-up eamil.txt pool/fence/cover issue. we were told that we should have » received some kind of a letter from the city, which we have not received. we saw a packet for a meeting that is dated for July 12th. We are wondering » if the meeting occurred and what the outcome was. we also would like to know if there is going to be further recommendation to the council » on this issue and when will that meeting occur? » If we wanted to come down and meet with someone in person, who would that person be? This is an important issue to us and we would » like to be notified and kept informed on it. » As stated before, we never received a letter, so we are doing some catch-up in trying to understand what is going on. » Bill, I've included you on this email as we saw your name involved in this. Please read the emails below to familiarize yourself » on who we are and what we are asking. » we appreciate all that you do and we look forward to talking with you. » Thank you, » Sincerely, » Heidi and Dan McKeown » Begin forwarded message: » From: DANIEL W MCKEOWN <danmckeown@comcast.net> » Date: July 13, 2010 11:18:00 AM CDT » To: kharycki@ci.stillwater.mn.us, rgag@ci.stillwater.mn.us, mcook@ci.stillwater.mn.us, jroush@ci.stillwater.mn.us, polehna@usfamily.net » Subject: Fwd: pool fence issue follow-up eamil » Greetings to you Mr. Mayor and city council Members, Just following up on my past email. we are still trying to learn more about the fencing issue and how it is related to pool covers. we have not received anything from the city on this and have just recently received information from one other concerned pool owner and I'm sure is the » case in such circumstances, we are only hearing one side of the story. » we are still very surprised that this is an issue. we are having a hard time understanding the logic of why it is. » I can tell you that when we researched the pool covers, our insurer, which is State Farm, was satisfied with the cover we purchased and the cover met all their strict qualifications on safety and thus our pool is fully insured with absolutely no objections from the » insurance company. An important aspect of the safety of our cover is that the controls to open it are located in a hard to find location, and they are locked with a keyed lock, which remains locked when the pool is not in use » If someone wanted to gain access to the controls, which is the only way to open the pool, they would have to smash the lock box with a crow bar and in which case » they would have also broken the controls. There is no fence that can be jumped over or left open. The cover is closed and locked, period. we Page 5 Re pool fence issue follow-up eamil.txt actually believe that our cover is » safer than a fence. it would be devastating if a fence was accidentally left open and a death occurred. with our cover, again, it is closed and it is locked, period. » we have our cover inspected at the beginning of the pool season and we monitor it's operation throughout the year. The only issue we have » had with it is that the tension had to be adjusted on it once so that it moved faster, which did not compromise any safety issues. In the winter, the pool retains » it's water level and the cover stays intact and locked. Again, one can walk on it, jump on it etc. Several of us walk on it at one time in order to clean the surface of it. As the manufacturer states, it was made » to function this way and as our insurance company supports, it is made safe » If one did not understand the rigorous testing and safety of these covers, I could see how they could be perceived as a threat. » As a pool owner, it took us awhile to understand how they work and how they are safe. it took our insurance company to help us to believe that yes, they are safe. » And at that time, the city of stillwater fully endorsed the covers, so again we felt very confident that it was the right application for our pool. At some point, the city of Stillwater approved the covers. It would be interesting to see why they did » and what changed to cause concern now. » Another important fact about our pool is that it is located on 5 plus acres with no immediate homes or children near by. It is a very private location that one would have to try very hard to find. It is not a nuisance nor an attraction to others. » I hope this email helps to explain our concerns on this matter. » Please contact us with more information so we can be informed as to what is happening on this matter and also whom » we need to be in contact with regarding it. » we very much ask that we be grandfathered in if this regulation should change. we followed the cities regulations when building our pool and we certainly hope that the city will stand by us in solving this issue. » Thank you! Respectively, » Heidi and Dan Mckeown » our pool is located at 7150 Melville Court » our home address is 3330 Heritage Court » and our home phone is 651-342-6140 Page 6 Re pool fence issue follow-up eamil.txt » Begin forwarded message: » From: DANIEL W MCKEOWN <danmckeown@comcast.net> » Date: July 11, 2010 11:44:46 PM CDT » To: kharycki@ci.stillwater.mn.us, rgag@ci.stillwater.mn.us, mcook@ci.stillwater.mn.us, jroush@ci.stillwater.mn.us, polehna@usfamily.net » Subject: pool fence issue Greetings to You Mr. Mayor and Council Members, » we have just become aware of some issue regarding a vote that is coming up that has to do with adding fencing around swimming pools, even pools that have a safety cover that is now current code. » we do have a pool that has a cover that is locked and is so strong that you can stand on it without threat of » a safety issue. (actually several people can stand on it with no threat) we are tremendous believers of pool safety and take this responsibility of having a pool very seriously » when purchasing our pool we researched the safety of covers extensively, as it is paramount that they work and are safe. we are very satisfied that our cover is safe and is not a » threat to others. » We would like to request that if the ordnance should change requiring a fence to be added, that we could be grandfathered in and that our pool could remain as it is. It is our very firm belief » that it is safe, it is locked and we are confident that it could be grandfathered in and the situation could have a positive outcome for all parties involved. » It is surprisinj to us that this is even an issue, as the cover we have is so safe. But since the issue is up for vote, there must be some concern generated from someone. It is always good to review » safety issues and we certainly understand and respect that. We do however feel very strongly that we have a safe cover and we are responsible pool owners who again, would really appreciate » it if we could be grandfathered in! » I sincerely thank you for your consideration in this matter. » Very Sincerely, » Heidi and Dan McKeown Page 7 IFIPLAC E OF MINNESOTA Memo Community Development Department To: Planning Commission From: Michel Pogge, City Planner 47 Date: Friday, September 10, 2010 Re: Impact of Krummenacher vs City of Minnetonka Message: On June 24, 2010, the Minnesota Supreme Court ruled on a case called Krummenacher vs City of Minnetonka. In it, the court reduced cities powers on when a variance can be issued. Essentially the court ruled that state statue allows cities to only issue variances when in absence of the variance request there is NO reasonable use of the property. This makes it difficult for cities to issue most variance requests. Attached for the Commission reference is: • a copy of the option • an article from the League of Minnesota Cities on City Variance Authority • an article from the St. Paul Pioneer Press on the issue Staff is reviewing various code changes that may be appropriate in response this case. Three initial changes staffs have identified that would resolve a number of the variances the Commission currently reviews include: 1. Making all existing nonconforming lots of record prior to the adoption of zoning legal and conforming lots 2. Making all existing nonconforming structures built prior to the adoption of zoning legal and conforming structures 3. Allowing for the issuance of a SUP when a downtown property that is undergoing a change of use and there is not sufficient off-street parking. Attached for discussion on September 13, are rough drafts of language related to existing nonconforming lots of record and existing nonconforming structures. Creating a SUP process to address parking issue is a little more complex and will be dealt with in the near future. From the desk of... Michel Pogge, AICP • City Planner City of Stillwater • 216 N. 4th Street Stillwater, MN 55082 651.430-8822 • Fax: 651.430-8810 email: mpogge@ci.stillwater.mn.us 31-101 91.5 Lots of Record Lot of Record means a lot as shown on an official plat recorded with the Washington County Recorder's office. Existing nonconforming Tots of record In any district where residential uses are permitted, structures may be erected on any unmodified lot of official record in the office of the county recorder on or prior to December 31, 1962, irrespective of its area, width or depth, provided that 1) the owner of the lot does not own any adjoining property; 2) only one dwelling unit shall be allowed unless the lot meets the minimum lot area requirements of the zoning district for additional dwelling units; and 3) that all other development standards for the zoning district are met. Existing nonconforming structures In any district where residential uses are permitted, additions to existing structures may be erected on any home in which a building permit for the home was issued on or prior to December 31, 1962, irrespective of existing nonconformities that may exist for the structure, provided that 1) the owner of the lot does not own any adjoining property; 2) that the proposed addition meets all other development standards for the zoning district. Notes: Ord 301 became effective on May 12, 1936 and appears to be the first set of zoning regulations for the City. It established residential zoning and set the minimum lot area at 4,000 square feet and required a front setback to be at a minimum of 30% of the lot depth. The rear yard setback was 20% of the lot depth for home at or under two and a half stories and 25% for building taller than two and a half stories. The side setback was to have one side not less than 10% of the lot width and the other not less than 15% of the lot area. Ord 383 became effective on January 1, 1963. It established the RA, RB, and many of the current zoning districts. In the RA and RB zoning district set the minimum lot area at 7,500 square feet and required a front setback of 30 feet, side of that equals a minimum of 15% of the lot width, and a rear setback of 25 feet. State Supreme Court Narrowly Interprets Variance Authority Page 1 of 2 LEAGUE E of MINNESO1A CITIES State Supreme Court Narrowly Interprets Variance Authority The court ruling holds cities to a much stricter standard, which considerably limits variance opportunities. (Published Jul 21, 2010) The Minnesota Supreme Court recently issued a decision that changed the longstanding interpretation of the statutory standard for granting zoning variances. In the case of Krummenacher v. City of Minnetonka, the Supreme Court narrowly interpreted the definition of "undue hardship" and held that the "reasonable use" prong of the "undue hardship" test is not whether the proposed use is reasonable, but rather whether there is reasonable use in the absence of the variance. This is a much stricter standard, which considerably limits variance opportunities. The decision The City of Minnetonka issued a variance to a residential property owner peiinitting the expansion of a legal, non -conforming garage. The city, relying on a 1989 Court of Appeals decision, concluded that the grant of the variance was reasonable. The city's decision was challenged by an adjacent property owner. Both the District Court and the Minnesota Court of Appeals agreed that the city's decision was appropriate. On June 24 the Minnesota Supreme Court reversed the Court of Appeals and found the city's decision impermissible. The Supreme Court examined the statutory definition of "undue hardship" in Minnesota Statutes, section 462.357, and concluded that city authority to issue a variance is limited to those very rare cases where the property cannot be put to "a reasonable use" without the variance. This establishes a high threshold for both the city and the property owner when considering variance requests. The Supreme Court reviewed the parallel county authority that allows for a variance in situations of "practical difficulties" or "hardship." The Supreme Court found that the city authority was more limited because it did not contain the "practical difficulties" provision. The court explicitly recognized that it was changing a longstanding standard that cities have relied on in considering variance requests. In particular, the court specifically rejected a 1989 Court of Appeals interpretation of the phrase "undue hardship," which allowed for the grant of a variance in circumstances where the "property owner would like to use the property in a reasonable manner that is prohibited by the ordinance." The Supreme Court stated that "unless and until the Legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property cannot be put to a reasonable use without the variance." Impact of the decision Because of the far-reaching nature of the decision, there are probably at least four responses that cities http://www.lmc.org/page/1/varianceruling.jsp 7/22/2010 State Supreme Court Narrowly Interprets Variance Authority should think about at least until a legislative correction can be achieved: . The city should re-evaluate the criteria that it has historically used in deciding whether or not to grant a variance. The Supreme Court's decision limits a city's discretion. The ruling limits the authority to circumstances where the property owner can demonstrate that there is not a reasonable use of the property absent the variance grant. • In circumstances where the city council believes the grant of a variance is appropriate, the city should take great care to make detailed finding describing why the grant of the variance is necessary to provide the property owner with a reasonable use of his or her property. What constitutes a reasonable use of property is not defined and may differ depending on the unique circumstances of the property and attributes of various communities. . If a city routinely grants variances, this may be an indicator that it may want to re-examine its zoning code to ensure that standards, setbacks, uses, and other requirements are consistent with the city council's current vision for the community. In short, the court's decision should act as an encouragement to cities to review their land use practices. • Cities may want to build greater flexibility into their existing conditional use permit, planned unit development, and setback regulations to explicitly afford greater latitude to allow "variance -like" approvals under the zoning code. For instance, a city might establish alternative setback requirements to allow for construction that is consistent with neighborhood attributes. Legislative action The restrictive court decision has caused a number of League members to call for a legislative response. The decision, its impact, and a possible legislative response will be discussed in the League's Improving Service Delivery Policy Committee this summer. It is anticipated that the League will support a legislative change to provide cities with greater flexibility perhaps something similar to the county authority. Read the current issue of the Cities Bulletin Your LMC Resource Contact Tom Grundhoefer General Counsel (651) 281-1266 or (800) 925-1122 tgrundho@lmc.org Page 2 of'2 Copyright ©2010 League of Minnesota Cities, 145 University Ave. W, Saint Paul, MN 55103-2044 I Phone: (651) 281-1200 I Toll -Free: (800) 925-1122 http://www.lmc.org/page/1/varianceruling.jsp 7/22/2010 4B A twincities,com St. Paul Pioneer Press Dakota County hies rethink variance stances By Jessica Fleming jfieming@pioneerpress.com Minnesota homeowners seeking even a few inches more than a city's zoning ordi- nance allows to build a fence, porch or addition could be in for a rude awakening. Cities are looking at and, in cases,- adjusting their rules about variances after a Min- nesota Supreme Court deci- sion in June virtually wiped out the option. A variance is city approval to deviate from a property ordinance. "When cities adopt their zoning ordinances, they try to anticipate every situation that might come up, but invariably they are not going to be able to," League of Minnesota Cities general counsel Tom Grundhoefer said. "So cities will eventually need to be able to grant variances." The ruling came on a law- suit filed by the neighbor of a Minnetonka property owner who had been granted a vari- ance to expand a garage. Before June, cities had inter- preted the statute to mean that as long as the land use was reasonable, a variance was permissible. But the Supreme Court reversed two lower courts by saying a variance was not per- missible, based on a strict interpretation of the state statute. A variance could be issued only if there was "no other possible use" for the land, the court ruled. Now, city attorneys are advising that cities simply not issue variances. City planners and communi- ty development directors stressed that variances are lit- tle -used tools. City councils will often change an ordi- nance if too many variances are being requested. However, in certain cases where the change is not some- thing another landowner would likely repeat, variances are useful, officials said. The League of Minnesota Cities will advocate next leg- islative session for a change to provide cities with more flexi- bility, Grundhoefer said. In the meantime, cities are stuck without options if a project that requires a vari- ance comes along. With the soft economy and poor hous- ing market, officials said they would prefer to approve improvements that help a homeowner build equity. Jessica Fleming can be reached at 651-228-5435. CONTINUED FROM 1B > Arts center resources — and those of other foundations — were used wisely," she said. The study's results didn't surprise Carol Carver, long- time artistic director of the Valley Chamber Chorale, which performs regularly at Trinity Lutheran Church and the Washington County His- toric Courthouse in Stillwater. "I've been here for 30 years, and I pretty much know the art scene in Stillwater," she said. "I'm sure it would be lovely to have a 500-seat auditorium, but we just can't feasibly keep it going every night of the year." The study gives St. Croix River Valley arts organiza- tions "a clearer vision of what is needed," Carver said. "I think so many of us have these grand visions, and yet we don't know how to live them out. If we have the numbers and the costs, it puts it all more in per- spective. We're not going to spend $20 million on some- thing that is only going to be used 60 nights a year. You want whatever space you have to be used." SUSTAINABLE ART SPACE ArtReach St. Croix Moved into a new facility in down- townStillwater a year ago. The building includes gallery space, a retail gallery, meeting rooms, studio space, a framing studio, administrative offices and a "very small performing space," said Jessica Pack, exec- utive director. said. "I thought it would be higher. "But my concern is that the art space is sustainable — whatever form that takes — and that it meets the needs of the artists and community and organizations that we serve. We don't want to see buildings end up vacant. We don't want to see any spaces not being used to their potential — whether that's studio space or kiln rooms or performance space.'. _... "I'm sure it would be lovely to have a 500-seat auditorium, but we just can't feasibly keep it going every night of the year." Carol Carver, artistic director of the Valley Chamber Chorale Karen Johnston, chair- woman of the Lake Elmo Regional Arts Center board, said she hopes the study will help raise the. visibility of the arts in the St. Croix River Val- ley and lead to more collabora- tion between arts organiza- tions. The Lake Elmo Regional Arts Center opened about five years ago in a two-story house near Lions Park. "It's had its ups and its downs," Johnston said. "Keeping it full and busy is a challenge, so we're really excited about the study and getting something that will raise visibility of the arts in the area. rm hoping that (people will say), 'Gee, Lake Elmo has gallery space that we didn't Sunday 8-29-2010 well." Still, Johnston holds out hope that a larger performing arts center might be built. "I think a good performance venue in the valley would be an asset," she said. "It just may not be time yet." ARMORY'S POSSIBILITIES The 64,000-square-foot Phipps Center for the Arts in Hudson, Wis., was built in 1983 to serve both sides of the river, said John Potter, the center's executive director. More than half of the center's patron data- base is from Minnesota, he said. The center includes a 250- seat auditorium and a 125-seat black box space, and is open just about every day of the year, except for major holidays, Potter said. The center has, on average, about 120 perform- ances a year. Potter said he was not sur- prised by the study's results. "I think that it would be very dif- ficult to sustain multiple per- formance spaces in the valley," he said. He said he hopes that the arts organizations — having spent the past year and a half working together on the study — will continue to collaborate. "At most, there may be some kind of facility that would serve the need of multiple groups," he said. "It's a horrid time to be talking about build- ing a facility, but in five or 10 years, we might feel very dif- ferently about it" Stillwater officials have pushed for years to have the National Guard Armory build- ing downtnwn harnmi an 0140 STATE OF MINNESOTA IN SUPREME COURT A08-1988 Court of Appeals Gildea, J. Took no part, Dietzen, J. Beat L. Krummenacher, vs. City of Minnetonka, JoAnne K. Liebeler, Appellant, Respondent, Respondent. Filed: June 24, 2010 Office of Appellate Courts Paul W. Chamberlain, Ryan R. Kuhlmann, Chamberlain Law Firm, Wayzata, Minnesota, for appellant. George C. Hoff, Shelley M. Ryan, Hoff, Barry & Kozar, P.A., Eden Prairie, Minnesota, for respondent City of Minnetonka. James M. Susag, Larkin, Hoffman, Daly & Lindgren Ltd., Bloomington, Minnesota, for respondent JoAnne Liebeler. Susan L. Naughton, St. Paul, Minnesota, for amicus curiae League of Minnesota Cities. 1 SYLLABUS 1. Although Minn. Stat. § 462.357, subd. le(a) (2008), restricts the ability of property owners to expand their nonconforming uses, subdivision le(b) authorizes a municipality to allow an expansion pursuant to ordinance. Because the legislature gave the municipality discretion to authorize the expansion of a nonconforming use, the decision to allow respondent to seek a variance under the ordinance to expand a nonconformity was consistent with Minn Stat. § 462.357, subd. le. 2. Under Minn. Stat. § 462.357, subd. 6, to establish the "undue hardship" required for a variance, a variance applicant must establish that "the property in question cannot be put to a reasonable use" without the variance. 3. Because the municipality applied the wrong standard, a remand for reconsideration of respondent's variance application under the correct standard is appropriate. Reversed and remanded. OPINION GILDEA, Justice. This case involves the decision of respondent City of Minnetonka to grant a variance to respondent JoAnne Liebeler so that she could expand her nonconforming garage. Appellant Beat Krummenacher is Liebeler's neighbor and he challenges the City's decision. The district court upheld the City's variance, and the court of appeals affirmed. See Krummenacher v. City of Minnetonka, 768 N.W.2d 377, 384 (Minn. App. 2009). Because we conclude that the City applied the wrong standard to Liebeler's 2 variance request, we reverse and remand to the City for reconsideration under the correct standard. Liebeler owns property located in Minnetonka. Krummenacher is Liebeler's neighbor to the west. Liebeler's property consists of a 2.4-acre lot, which contains a 2,975-square-foot home and an attached two -car garage. The property also contains a detached flat -roofed garage that a previous owner constructed sometime in the 1940s. The City has an ordinance requiring that the detached garage be set back a minimum of 50 feet from the property's boundary line. Minnetonka City Code § 300.10. Liebeler's garage was constructed before this ordinance went into effect, and it does not satisfy the setback requirement. Specifically, the garage is nonconforming because it is set back only 17 feet from the front yard lot line. Because the garage was constructed before the ordinance became effective, however, the garage is a permissible nonconformity. On March 31, 2008, Liebeler applied for a variance to expand the detached garage by adding a pitched roof and a second -story room above the garage that could be used as a yoga studio and craft room. Liebeler's proposal was to renovate the garage itself, both to fix its leakage problems and improve its appearance, and also to expand the garage by adding a living space above it. Because adding a second story to the garage would result in a vertical expansion of a nonconforming structure, Liebeler was required, under the Minnetonka City Code, to apply for a variance from the City.' See Minnetonka City It appears that Liebeler did not attempt to move the garage to a conforming location because the unusual characteristics of the lot made relocation impracticable. Liebeler's lot is L-shaped with only 45-feet of frontage on the road. Moreover, there is a (Footnote continued on next page.) 3 Code § 300.29.3(g). Liebeler's proposed addition would not alter the footprint of the garage and would comply with the City zoning requirements for a detached garage with respect to maximum height and size. The City's Planning Commission held a public hearing on May 15, 2008, to consider Liebeler's request. Both Liebeler and Krummenacher had an opportunity to present their arguments at that hearing. Liebeler explained that she believed that the flat roof was causing leakage problems and that the structure itself needed to be updated. Krummenacher objected to Liebeler's proposed project, explaining that the added height of the garage would obstruct his view to the east. The Planning Commission approved Liebeler's request for the variance. The Planning Commission based its decision on the following findings: (1) the denial of a variance would cause "undue hardship" because of the "topography of the site, width of the lot, location of the driveway, and existing vegetation"; (2) the preexisting nonconforming setback was a "unique circumstance"; (3) Liebeler's proposal would comply with the "intent of the ordinance" because it satisfied the "zoning ordinance requirements for a detached garage for maximum height and size" and did not alter the footprint of the garage; and (4) the proposal would not alter the "neighborhood character" because it would "visually enhance the exterior of the garage" and because there was (Footnote continued from previous page.) significant slope immediately behind the garage, making it difficult to move the garage back. 4 another detached garage on a nearby property that was also set back only 17 feet from the road. Krummenacher appealed the Planning Commission's decision to the Minnetonka City Council. The City Council held a public hearing on the variance request on June 30, 2008, at which both sides presented their arguments. After an examination of the record, the City Council upheld the Planning Commission's decision and findings. The City Council found that Liebeler's "proposal is reasonable and would meet the required standards for a variance." The council listed four requirements and found that the variance satisfied those requirements as follows: (1) Undue Hardship: there is an undue hardship due to the topography of the site, width of the lot, location of the driveway and existing vegetation. (2) Unique Circumstance: The existing, non -conforming setback is a circumstance that is not common to every similarly zoned property. (3) Intent of the Ordinance: The improvements would not increase the footprint of the garage, and would comply with the zoning ordinance requirements for a detached garage for maximum height and size. (4) Neighborhood Character: The garage improvements would not alter the character of the neighborhood. The improvements would visually enhance the exterior of the garage. There is also a detached garage on the property to the east that is set back 17 feet from [the street]. Krummenacher then brought suit in district court challenging, among other things, the City's finding of undue hardship. Krummenacher served discovery requests asking for additional documents from the City, but the City objected to providing more than the City's record on the grounds that the case was properly subject to record review. The court declined to order the City to produce the additional documents, and affirmed the 5 City's decision to grant the variance to Liebeler, concluding that the City's decision was not "arbitrary and capricious." Krummenacher appealed to the court of appeals. On appeal, he raised three issues. First, he argued that Minn. Stat. § 462.357, subd. 1e(a) (2008), prohibits the City from granting a variance to allow the expansion of a nonconforming use. Krummenacher, 768 N.W.2d at 380-81. Second, he argued that the City's approval of the variance request was "arbitrary and capricious" because Liebeler had failed to meet the "undue hardship" standard of Minn. Stat. § 462.357, subd. 6. See Krummenacher, 768 N.W.2d at 382-84. Last, he argued that the district court erred in refusing to compel additional discovery by the City. See id. at 384. The court of appeals affirmed the district court's decision in all respects. We granted Krummenacher's petition for review. On appeal to our court, Krummenacher advances the same three arguments he made to the court of appeals.2 I. We turn first to Krummenacher's argument that Minn. Stat. § 462.357, subd. I e, prohibits a municipality from granting a variance that allows for the expansion of a nonconforming structure. Section 462.357, subdivision 1 e, provides in relevant part: (a) Any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, 2 On January 26, 2010, Liebeler filed a motion to dismiss, arguing that we should dismiss the case on the grounds that construction of the expanded garage has been completed, rendering Krummenacher's claims moot. The motion to dismiss is denied. 6 replacement, restoration, maintenance, or improvement, but not including expansion ... . (b) A municipality may, by ordinance, permit an expansion or impose upon nonconformities reasonable regulations to prevent and abate nuisances and to protect the public health, welfare, or safety. (Emphasis added.)3 Krummenacher argues that because the plain language of paragraph (a) of subdivision 1 e prohibits the expansion of any nonconformity, the City's decision allowing Liebeler to expand her nonconforming garage must be reversed. The City argues that subdivision le(a) restricts the ability of property owners to expand nonconforming uses, but that under subdivision le(b), a municipality is permitted to allow an expansion pursuant to ordinance. The construction of a statute is a question of law that we review de novo. Clark v. Lindquist, 683 N.W.2d 784, 785 (Minn. 2004).4 To interpret a statute, we first assess 3 In its brief, the City cites the 2009 version of section 462. 357, subdivision 1 e(a) which reads: Except as otherwise provided by law, any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion ... . Minn. Stat. § 462.357 (Supp. 2009) (new language in italics). The "except as otherwise provided" language in this version of subdivision l e(a), however, did not become effective until May 22, 2009, which was after the City granted the variance. See Act of May 21, 2009, ch. 149, § 4, 2009 Minn. Laws 2025, 2028. We therefore do not rely on this version of the statute. We apply the 2008 version of subdivision le, the version of the statute in effect when the variance was granted. 4 Liebeler did not propose to expand the footprint of her garage, and it is undisputed that even as remodeled the garage would still be 17 feet from the yard line. In other (Footnote continued on next page.) 7 "whether the statute's language, on its face, is clear or ambiguous." Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000). If the law is "clear and free from all ambiguity," the plain meaning controls and is not "disregarded under the pretext of pursuing the spirit." Minn. Stat. § 645.16 (2008); Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995) ("Where the intention of the legislature is clearly manifested by plain unambiguous language ... no construction is necessary or permitted."). The legislature has also stated that it intends the entire statute to be effective. Minn. Stat. § 645.16 ("Every law shall be construed, if possible, to give effect to all its provisions."). This case is about a structure that does not conform with local land use restrictions. We have recognized that a local zoning ordinance "may constitutionally prohibit the creation of uses which are nonconforming." County of Freeborn v. Claussen, 295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972). As to "existing nonconforming uses," however, these "must either be permitted to remain or be eliminated by use of eminent domain." Id. But a local government "is not required" to permit the expansion of such nonconformities. Id. Subdivision le is consistent with these principles. We read the subdivision in its entirety and give effect to both paragraph (a) and paragraph (b). Minn. Stat. § 645.16; (Footnote continued from previous page.) words, the scope of the nonconformity would not be expanded if Liebeler's request were granted. The City nevertheless concedes that the variance sought an "expansion" for purposes of Minn. Stat. § 462.357, subd. le, and we treat it as such for purposes of this opinion. 8 see also In re Kenney, 374 N.W.2d 271, 274 (Minn. 1985) ("A statute will be construed so as to give effect to all of its parts."). In paragraph (a), the legislature, with certain exceptions not relevant here, prohibits a municipality from ordering the removal of nonconformities.5 Further, the legislature has given property owners the right to repair or replace a nonconformity so long as they do not expand the nonconformity. In other words, as long as the property owner does not expand the nonconformity, she does not need municipal approval to take corrective or remedial action on the nonconformity. But under paragraph (b), if the property owner seeks to expand the nonconformity, the municipality may, by ordinance, permit the expansion. Consistent with the authority the legislature granted to it in paragraph (b) of subdivision le, the City has an ordinance that addresses the expansion of nonconformities. See Minnetonka City Code § 300.29(g)(1). This ordinance provides that "an expansion of any non -conforming use may not be done without first obtaining a variance." Id. Liebeler's proposed addition to her detached garage required a variance because she proposed to "occup[y] space within a non -conforming area that was previously not occupied ... vertically." Id. Krummenacher argues that because state law is superior to municipal law, the City cannot grant a variance pursuant to its own ordinance if that variance violates state law. 5 The statute allows the municipality to require a nonconformity to be discontinued when it "is discontinued for a period of more than one year," or "is destroyed by fire or other peril to the extent of greater than 50 percent of its market value, and no building permit has been applied for within 180 days of when the property is damaged." Minn. Stat. § 462.357, subd. le(a)(1) and (2). 9 See Denney v. City of Duluth, 295 Minn. 22, 26, 202 N.W.2d 892, 894 (1972) ("It is fundamental that a municipality's power to regulate land use by zoning exists by virtue of authority delegated to it by the state."). But Minn. Stat. § 462.357, subd. le(b), grants the City the discretion to permit the expansion of a nonconformity by ordinance. The City provided a mechanism for expansion in section 300.29(g)(1), through a variance application, and Krummenacher makes no argument that Liebeler's request for a variance did not satisfy that section of the City Code. Because the legislature gave the City discretion to authorize the expansion of Liebeler's nonconforming garage, we hold that the City's decision to allow Liebeler to seek a variance under the ordinance to expand a nonconformity was consistent with Minn. Stat. § 462.3 57, subd. le. II. We turn next to Krummenacher's argument that the City's decision must be set aside because it was arbitrary and capricious. Municipalities have "broad discretionary power" in considering whether to grant or deny a variance. VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983). We review such decisions "to determine whether the municipality "was within its jurisdiction, was not mistaken as to the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and to determine whether the evidence could reasonably support or justify the determination." In re Stadsvold, 754 N.W.2d 323, 332 (Minn. 2008) (internal quotation omitted). 10 A. Krummenacher argues that the City's decision was arbitrary and capricious because the City did not apply the proper standard to determine whether Liebeler demonstrated "undue hardship" as defined in Minn. Stat. § 462.357, subd. 6. This provision allows a city to grant a variance "from the literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration." Minn. Stat. § 462.357, subd. 6. Minnesota Statutes § 462.357, subd. 6, provides a definition of "undue hardship," and that definition requires that three factors be met. Specifically, the statute defines "undue hardship" as meaning, the property in question cannot be put to reasonable use if used under 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. Id.6 To receive a variance, the applicant must show that he or she meets all of the three statutory requirements of the "undue hardship" test. Id. In addition to satisfying the "undue hardship" requirement, the statute allows municipalities to grant variances only 6 The Minnetonka City Code has almost identical provisions. Minnetonka City Code § 300.07.1(a) ("A variance may be granted from the literal provisions of this ordinance in instances where strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration and when it is demonstrated that such actions would be consistent with the spirit and intent of this ordinance. Undue hardship means the property in question cannot be put to a reasonable use if used under conditions allowed by this ordinance, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and the variance, if granted, would not alter the essential character of the neighborhood."). 11 "when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance." Id. Krummenacher argues that Liebeler's application does not meet any of the requirements for "undue hardship." The first factor a variance applicant must establish to satisfy the statute's definition of "undue hardship" is that "the property in question cannot be put to reasonable use if used under conditions allowed by the official controls." Minn. Stat. § 462.357, subd. 6; see also Minnetonka City Code § 300.07.1(a). Krummenacher argues that based on the plain and unambiguous language of the statute, a municipality may grant a variance only when the property cannot be put to any reasonable use without it. According to Krummenacher, Liebeler had a reasonable use for her garage without the addition of a yoga studio and craft room —its current use as a storage space for vehicles. Krummenacher argues therefore that the City did not have the statutory authority to grant the variance. The court of appeals rejected this argument, relying on its decision in Rowell v. Board of Adjustment of Moorhead, 446 N.W.2d 917 (Minn. App. 1989), rev. denied (Minn. Dec. 15, 1989). The court in that case interpreted the "undue hardship" section of Minn. Stat. § 462.357, subd. 6, as requiring a variance applicant to show that the "property owner would like to use the property in a reasonable manner that is prohibited by the ordinance." Id. at 922. The City urges that we should embrace the interpretation of "undue hardship" from Rowell, and it appears from the record that the Rowell "reasonable manner" standard is the standard the City used in evaluating Liebeler's request for a variance. The City 12 determined that the expansion of the garage was a reasonable use of the property and that the request met the other requirements of the statute. Specifically, as reflected in the City Council Resolution, the City found that "the proposal is reasonable" and with respect to "undue hardship," that "[t]here is an undue hardship due to the topography of the site, width of the lot, location of the driveway and existing vegetation." The plain language of the statute and our precedent compel us to reject the City's invitation to adopt Rowell's interpretation of "undue hardship." The statute provides that to prove "undue hardship," the variance applicant must show that "the property in question cannot be put to a reasonable use" without the variance. Minn. Stat. § 462.357, subd. 6. Notwithstanding this language, the court of appeals concluded that "[t]his provision does not mean that a property owner must show the land cannot be put to any reasonable use without the variance." Rowell, 446 N.W.2d at 922. The court of appeals essentially rewrote the statute to mean that a municipality may grant a variance when the "property owner would like to use the property in a reasonable manner that is prohibited by the ordinance." Id. at 922. Although the Rowell "reasonable manner" standard has been used for over 20 years, we simply cannot reconcile that standard with the plain language of the statute. The Rowell standard is also inconsistent with our precedent. In support of the application of a "reasonable manner" standard for determining "undue hardship," Rowell cites Curry v. Young, 285 Minn. 387, 173 N.W.2d 410 (1969), for the proposition that a variance is "required where a setback requirement would force a property owner to build a much smaller structure." Id. at 922. The version of Minn. Stat. § 462.357 in effect 13 when Curry was decided did not contain the definition of "undue hardship" that is in the current version of the statute. See Minn. Stat. § 462.357 (1969). Moreover, while we discussed in Curry the dimensions of a structure that could theoretically be built to comply with the statutory requirements, we based our determination that the variance was properly granted on the municipality's ordinance. That ordinance required a showing of "particular hardship," and we concluded that the standard was met because the "plaintiffs' lot, in the absence of a variance, would be unusable for any purpose." Curry, 285 Minn. at 388-89, 396, 173 N.W.2d at 411, 415. The standard we applied in Curry is more rigorous than the "reasonable manner" standard adopted in Rowell, and appears consistent with the plain language of the first part of the "undue hardship" definition that is in the current statute. See Minn. Stat. § 462.357, subd. 6. In addition, in formulating the "reasonable manner" standard, the court in Rowell appears to have relied on the "practical difficulties" standard. See Rowell, 446 N.W.2d at 922. But we have made a clear distinction between the "practical difficulties" standard and the "undue hardship" standard. See Stadsvold, 754 N.W.2d at 328-31. As we explained in Stadsvold, the "practical difficulties" standard applies to review of county decisions to grant area variances, while the "undue hardship" standard applies to all In support of the application of this standard, the court of appeals cited Merriam Park Community Council, Inc. v. McDonough, 297 Minn. 285, 289-90, 210 N.W.2d 416, 419 (1973), overruled on other grounds by Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 868 n.4 (Minn. 1979). As in Curry, the version of Minn. Stat. § 462.357 in effect when Merriam Park was decided did not contain the definition of "undue hardship" that is in the current version of the statute. See 297 Minn. at 289-90, 210 N.W.2d at 418-19 (quoting statute). 14 municipal decisions to grant variances. Id. at 327-28 & n.2. Compare Minn. Stat. § 462.357, subd. 6, with Minn. Stat. § 394.27, subd. 7 (2008).8 In Stadsvold, we interpreted Minn. Stat. § 394.27, subd. 7, which sets forth the statutory standard for county variances. This statute contains both the "practical difficulties" standard and a "particular hardship" standard. Specifically, section 394.27 authorizes a county to grant variances from "the terms of any official control" but only when the property owner would face "practical difficulties or particular hardship" in meeting "the strict letter of any official control." Minn. Stat. § 394.27, subd. 7.9 We distinguished the "less rigorous `practical difficulties' " standard that applies to area variance applications from the more rigorous "particular hardship" standard that applies to use variance applications. Stadsvold, 754 N.W.2d at 330-31.10 8 While Minn. Stat. § 462.357, subd. 6, and Minn. Stat. § 394.27, subd. 7, both set forth standards for granting variances, section 462.357, subdivision 6, applies to municipalities and section 394.27, subdivision 7, applies to counties. 9 The same dichotomy of language at issue in Stadsvold existed in the predecessor to the municipal zoning statute, section 462.357. Until 1965, section 462.22 (enacted in 1929, repealed in 1965) granted municipalities the power to vary or modify the application of a zoning regulation where there were "practical difficulties or unnecessary hardship" in complying with the strict letter of the regulation. Minn. Stat. § 462.22 (1961). In 1965, the legislature replaced Minn. Stat. § 462.22 with Minn. Stat. § 462.357. Act of May 22, 1965, c. 670, § 7, 1965 Minn. Laws 995, 1000-03. The new statute replaced the "practical difficulties or unnecessary hardship" standard with the current single "undue hardship" standard. Id. "Undue hardship" was undefined in the statute until 1982, when the legislature, borrowing the definition of "hardship" from the county variance statute, Minn. Stat. § 394.27, added the current definition of "undue hardship" to the statute. Act of Mar. 22, 1982, ch. 507, § 22, 1982 Minn. Laws 592, 593. 1° As we discussed in Stadsvold, "[t]here are two types of variances: use variances and area variances. 'A use variance permits a use or development of land other than that (Footnote continued on next page.) 15 Adopting the Rowell "reasonable manner" standard would be inconsistent with the distinction we made in Stadsvold between the "practical difficulties" and "hardship" standards. The legislature defined the "hardship" standard in the county statute the same way it defined the "undue hardship"standard in the municipal statute. Because the P legislature used the same language in both the county and city variance statutes when defining "hardship," our analysis in Stadsvold requires us to conclude that the "undue hardship" standard in Minn. Stat. § 462.537, subd. 6, is more demanding than the "practical difficulties" standard the court of appeals appears to have relied on in Rowell, 446 N.W.2d at 922. Moreover, with respect to the "practical difficulties" standard, we identified in Stadsvold several factors the county should consider in assessing whether that standard was met: (1) how substantial the variation is in relation to the requirement; (2) the effect the variance would have on government services; (3) whether the variance will effect a substantial change in the character of the neighborhood or will be a substantial detriment to neighboring properties; (4) whether the practical difficulty can be alleviated by a feasible method other than a variance; (5) how the practical difficulty occurred, including (Footnote continued from previous page.) prescribed by zoning regulations.' ... An area variance controls 'lot restrictions such as area, height, setback, density and parking requirements.' " 754 N.W.2d at 329 (quoting In re Appeal of Kenney, 374 N.W.2d 271, 274 (Minn. 1985)). 1 `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." Minn. Stat. § 394.27, subd. 7. 16 whether the landowner created the need for the variance; and (6) whether, in light of all of the above factors, allowing the variance will serve the interests of justice. 754 N.W.2d at 331 (footnote omitted). Rowell's interpretation of the "undue hardship" standard, requiring only that the proposed use be "reasonable," would render the "undue hardship" standard in section 462.357 less stringent than the "practical difficulties" standard and much less stringent than the "particular hardship" standard in the county variance statute, which the "undue hardship" standard appears to parallel. See Stadsvold, 754 N.W.2d at 331. In short, our analysis in Stadsvold simply does not leave room for the Rowell "reasonable manner" standard.12 12 The City argues that, even if Rowell was based on an erroneous reading of the text of section 462.357, subdivision 6, the standard in Rowell has been used by municipalities for many years in determining whether to grant a variance. See, e.g., Mohler v. City of St. Louis Park, 643 N.W.2d 623, 631 (Minn. App. 2002); Nolan v. City of Eden Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000); Sagstetter v. City of St. Paul, 529 N.W.2d 488, 492 (Minn. App. 1995). The City suggests that, because the legislature has amended section 462.357 many times since Rowell and has not disturbed the court of appeals' interpretation of the "undue hardship" standard, we should treat the legislature as having ratified the Rowell standard. But the legislature has provided that "[w]hen a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language." Minn. Stat. § 645.17(4) (2008). The court of appeals is not "a court of last resort." See Anderson-Johanningmeier v. Mid -Minnesota Women's Ctr., Inc., 673 N.W.2d 270, 276 (Minn. 2002) (stating that the court of appeals is not the court of last resort with respect to statutory construction). Nor does the denial of a petition for review give a court of appeals decision more precedential value than a court of appeals decision from which no review was sought. Murphy v. Milbank Mut. Ins. Co., 388 N.W.2d 732, 739 (Minn. 1986). We therefore reject the City's argument that the legislature has ratified the Rowell standard. 17 We recognize that the standard we apply today, while followed elsewhere, is not the universal rule.13 For example, in Simplex Technologies, Inc. v. Town of Newington, 766 A.2d 713 (N.H. 2001), the New Hampshire Supreme Court provided a thorough and insightful review of the development of land use variance law, and its practical construction in modern times. The New Hampshire statute did not contain a specific definition of "unnecessary hardship," like our statute does, and the court concluded that its prior definition of the statutory term "unnecessary hardship" "ha[d] become too restrictive in light of the constitutional protections by which it must be tempered." Id. at 717. The New Hampshire Supreme Court framed the issue in the following teams: Inevitably and necessarily there is a tension between zoning ordinances and property rights, as courts balance the right of citizens to the enjoyment of 13 While most jurisdictions use the phrase "unnecessary hardship" rather than "undue hardship" as the applicable standard, many jurisdictions appear to require that the variance applicant establish real hardship if the variance is denied rather than simply requiring that the applicant show the reasonableness of the proposed use. See, e.g., Larsen v. Zoning Bd. of Adjustment of Pittsburgh, 672 A.2d 286, 290-92 (Pa. 1996) (holding that the "mere desire to provide more room for a family member's enjoyment" is insufficient to constitute "unnecessary hardship" under the statute and requiring applicants to show that, if the variance request is denied, the property will be "practically useless"); OK Properties v. Zoning Bd. of Review of Warwick, 601 A.2d 953, 955 (R.I. 1992) ("The court has determined that unnecessary hardship exists when restricting the property to the permitted uses within the zoning ordinance will deprive the property owner of all beneficial use of the property and that granting a variance becomes necessary to avoid an indirect confiscation of the property."); Cochran v. Fairfax County Board of Zoning Appeals, 594 S.E.2d 571, 577 (Va. 2004) ("[T]he [Board of Zoning Appeals] has no authority to grant a variance unless the effect of the zoning ordinance, as applied to the piece of property under consideration, would, in the absence of a variance, interfere with all reasonable beneficial uses of the property, taken as a whole.") (internal quotation marks omitted); 3 Anderson's Law of Zoning § 20.16 (Kenneth H. Young ed., 4th ed., 1996) (describing different states' approaches to the "unnecessary hardship" standard and suggesting that most states give the term a fairly restrictive construction). 18 private property with the right of municipalities to restrict property use. In this balancing process, constitutional property rights must be respected and protected from unreasonable zoning restrictions. Id. at 716-17. In light of these considerations, the New Hampshire Supreme Court said that "unnecessary hardship" would, in the future, be established when a landowner showed that (1) a zoning restriction as applied interferes with a reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others. Id. at 717.i4 Had the Minnesota Legislature not defined "undue hardship" in Minn. Stat. § 462.357, subd. 6, we might consider the approach articulated in Simplex.15 A flexible variance standard allows municipalities to make modest adjustments to the detailed application of a regulatory scheme when a zoning ordinance imposes significant burdens on an individual, and relief can be fashioned without harm to the neighbors, the community, or the overall purposes of the ordinance. See David W. Owens, The Zoning Variance: Reappraisal and Recommendations for Reform of a Much -Maligned Tool, 29 Colum. J. Envtl. L. 279, 317 (2004) ("If the variance power is to be used both as a Ia These standards were subsequently codified. See N.H. Rev. Stat. Ann. § 674:33 (Supp. 2009). 15 The factors set forth in Simplex are not dissimilar to the factors we embraced in Stadsvold in construing "practical difficulties." See 754 N.W.2d at 331 (discussing factors for consideration under the "practical difficulties" standard). 19 constitutional safeguard and as a tool for flexibility, zoning enabling acts and local ordinances should be amended to delineate these two purposes and set different standards for each. The failure to make such a distinction underlies much of the past controversy regarding variances. Courts and commentators have traditionally viewed the variances as the former —a very limited tool for avoidance of constitutional infirmity in extraordinary cases. Most variance petitions, and consequently most board of adjustment decision - making, have viewed the variances as the latter —a tool to provide flexible implementation rather than constitutional infirmity."). We recognize that the Rowell "reasonable manner" standard represents a longstanding interpretation of the undue hardship standard in Minn. Stat. § 462.357, subd. 6, and that Minnesota municipalities have been granting variances under the "reasonable manner" standard for many years. We also recognize that our decision will result in a restriction on a municipality's authority to grant variances as compared with the "reasonable manner" standard. But whatever value we may find in a more flexible standard, particularly with regard to area variances, we cannot ignore the plain language of the statute. See State v. Peck, 773 N.W.2d 768, 773 (Minn. 2009) ("We have no opportunity to ignore part of the legislature's definition."). We are unable to interpret the statutory language to mean anything other than what the text clearly says —that to obtain a municipal variance, an applicant must establish that "the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls." Minn. Stat. § 462.357, subd. 6. Therefore, unless and until the legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the 20 language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property cannot be put to a reasonable use without the variance. Based on the plain language of the statute, and our precedent interpreting language similar to "undue hardship" in the context of a local government's authority to grant variances, we reject the "reasonable manner" standard from Rowell. We hold that the City inaccurately applied the first factor in the "undue hardship" definition of Minn. Stat. § 462.357, subd. 6. Our resolution of this issue makes it unnecessary for us to resolve the other issues Krummenacher raises on appeal. B. Having concluded that the City applied the law incorrectly, we must address the remedy. In cases where a variance has been denied, the general rule is that "[i]f the zoning authority's decision is arbitrary and capricious, the standard remedy is that the court orders the permit to be issued." Stadsvold, 754 N.W.2d at 332; see also In re Livingood, 594 N.W.2d 889, 895 (Minn. 1999). But there is an exception to this general rule "when the zoning authority's decision is premature and not necessarily arbitrary." Stadsvold, 752 N.W.2d at 333 (internal quotation omitted). For example, in Earthburners, Inc. v. County of Carlton, where it was unclear whether the zoning authority had applied the relevant statutory provisions, we remanded to the zoning authority for "renewed consideration" under the appropriate standard. 513 N.W.2d 460, 463 (Minn. 1994). 21 Similarly, in Stadsvold, we remanded a variance application to the county board because the board applied the wrong standard: The Board, using an "adequate hardship" standard, did not consider practical difficulties. The Stadsvolds argue the Board's decision was therefore arbitrary and capricious. The Board did not have the benefit of our holding in this case regarding "practical difficulties." We cannot tell whether the Board's decision was arbitrary and capricious. Therefore, remand is required to allow the Board to consider the Stadsvolds' variance application in light of our holding that applications for area variances are to be considered using the "practical difficulties" standard in Minn. Stat. § 394.27, subd. 7. Stadsvold, 754 N.W.2d at 332. Our precedent therefore supports the conclusion that a property owner is entitled to have his or her variance application heard under the correct legal standard, which supports a remand in this case. A remand is particularly appropriate in this case because a property owner seeking to utilize her property should not be penalized due to the City's application of the wrong legal standard. We reverse and remand the matter to the City for renewed consideration of Liebeler's variance request in light of our rejection of the "reasonable manner" standard from Rowell. Reversed and remanded. DIETZEN, J., took no part in the consideration or decision of this case. 22 Bill Turnblad From: Scott A. Spisak [sspisak@mac.com] Sent: Sunday, September 12, 2010 10:27 PM To: Bill Turnblad Cc: Michel Pogge; Charles Wolden; Aron Buchanan; Eric Hansen; JOhn MaIsom; Michael Dahlquist; David Middleton; Mike Kocon Subject: September 13, 2010 Planning Commission Meeting Bill, As you know, I will be unable to attend tomorrow night's meeting, but wanted to get comments to you regarding a couple of items on the agenda. Regarding Case 2010-39 I would agree with Staff's recommendation. Further, it is very difficult to consider this request without a certified survey indicating the actual variance required. What is indicated in the submittal does not appear to be based on any actual measurements and I feel that considering such a request, we better know exactly what the dimensions are. Case 2010-12, the swimming pool. I think you have done a good job trying to come up with some objective standards that are recognized by some national organizations. Unfortunately, I think those very standards only lead us into a much broader issue than was originally raised by Council. If the City truly wants to regulate safety, then in my opinion, we must consider the entire issue (four sided fences, door alarms, pool alarms, barriers, etc.) and not just the issue of safety covers. This broader approach, it seems to me, opens the door to ALL existing pools and not just those without fences. I suspect most pools in the City with fences, are 3 sided with direct access to the pool from the house, which by CDC standards is not a safe situation. If we are to cite national standards, then I don't think we can casually pick and choose which ones we want to follow. And this has very broad implications for all existing pool owners. Further, after reading the results of your work and the various standards, I have concerns about only addressing pools with safety covers and no fences and putting the City at risk of being arbitrary in our approach by ignoring the national standards in other cases. My preference is either more study and discussion of a fully comprehensive pool ordinance amendment OR leaving things the way they currently exist. We were told at the last meeting that the City has no liability in the case of private pools, so I think we need to carefully consider just how much regulation we try to impose. I am not in favor of retroactively requiring pool owners who installed safety covers (and in some cases removed fences afterwards) in compliance with the current ordinance to go back and spend additional money to put up a fence. Then there is the case of enforcement. Safety covers need maintenance, but so do fences and gates and latches (and alarms if we choose to go that route). Should the City require licensing of pools for a small annual fee that would cover an annual inspection by the building inspectors? And then there is the case of portable (temporary pools) which don't completely fit the ordinance either. i Let's give this careful consideration before we end up with a large amount of unintended consequences. Scott Spisak Scott A. Spisak 1326 2nd Avenue South Stillwater, MN 55082 H 651.430.1953 C 651.214.5728 sspisak6mac.com 2