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HomeMy WebLinkAbout2011-09-12 CPC PacketTHE BIRTHPLACE OF MINNESOTA CITY OF STILLWATER PLANNING COMMISSION NOTICE OF MEETING MONDAY, September 12, 2011 7 p.m. The City of Stillwater Planning Commission will meet on Monday, September 12, 2011 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 8, 2011 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 less 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. 2011 -22. A zoning text amendment for variance criteria in the City of Stillwater. City of Stillwater, applicant. 4.02 Case No. 2011 -23. A variance request to the impervious surface regulations for the construction of a two -stall garage located at 223 Pine Street West in the RB, Two Family Residential District. Richard Van Horne, applicant. 4.03 Case No. 2011 -24. A zoning text amendment to amend the Building Demolition Ordinance, Chapter 34 of the Stillwater City Code. City of Stillwater, applicant. 4.04 Case No. 2011 -09. An ordinance amendment for seasonal outdoor sales and Vending Carts. City of Stillwater, applicant. Continued from August 8, 2011 meeting. 5. OTHER BUSINESS CITY HALL: 216 NORTH FOURTH STREET • STILLWATER, MINNESOTA 55082 PHONE: 651- 430 -8800 • WEBSITE: www.ci.stillwater.mn.us CITY OF STILLWATER PLANNING COMMISSION MONDAY, August 8, 2011 7 p.m. Meeting Present: Commissioners Kelly, Nelson, Dahlquist, Spisak, Malsam, Buchanan, Siess, and Kocon Absent: Commissioners Gallick and Hansen Staff: Community Development Director Turnblad, Planner Pogge and Councilmember Menikheim Chair Dahlquist opened the meeting at 7:00 p.m. APPROVAL OF MINUTES Commissioner Spisak, seconded by Commissioner Kocon, moved to approve the July 11, 2011 Planning Commission minutes as presented. Motion was approved unanimously. Commissioner Menikheim asked for clarification. On page 5 of the minutes it was stated that "the Zoning Text Amendment and the Special Use Permit should be handled separately. For the Zoning Text Amendment, the Commission is making a recommendation to the City Council. For the Special Use Permit itself, the Commission has approval authority." He questioned where that is written in the City Charter. Mr. Pogge answered that for each zoning district City zoning code lists types of uses permitted out right or with special use permit. The list includes instances where the Planning Commission has the authority to make the decision, while other instances are footnoted in the use table to indicate that those need to go to the City Council. OPEN FORUM There was no one present for Open Forum. PUBLIC HEARINGS Case No. 2011 -17. A Special Use Permit for the installation of a resomator into an existing building, Celebration of Life, located at 2800 Curve Crest Blvd in the CRD, Campus Research and Development District. James and Jayne Bradshaw, applicants. Mr. Pogge introduced the case. The Bradshaw Group, Inc. has made application for a SUP related to operating an on -site Resomator (i.e. bio- crematory) at the Bradshaw Celebration of Life Center. He stated that funeral homes and mortuaries are permitted in the CRD zoning district with a Special Use Permit. The original SUP for the Bradshaw Celebration of Life Center was for City of Stillwater Planning Commission August 8, 2011 a funeral home operation, and did not address the operation of a crematory on the site. By definition, a funeral home and a mortuary include the preparation of the deceased for burial or cremation, for the viewing of the body, and for funerals. The act of cremation is not included in the common definition of a funeral home or a mortuary. Briefly, Mr. Pogge explained that unlike traditional cremations that use combustion, the bio- cremation process uses alkaline hydrolysis, a process that involves breaking down organic molecules to their basic components using a combination of water, alkali, heat, and pressure. At the end of the process bone fragments will remain and can be returned to the bereaved similar to a traditional cremation. Unlike traditional cremation there is little to no air emissions — nitrogen oxides and mercury vapor emissions which are common with traditional cremations are nonexistent with the bio- cremation process. In order to operate an on -site Resomator at the Bradshaw Celebration of Life Center at 2800 Curve Crest Blvd, the applicant will need the following approvals from the Planning Commission: 1. A finding that the proposed onsite Resomator may be allowed with a special use permit. 2. A special use permit to operate an on -site Resomator at the Bradshaw Celebration of Life Center located at 2800 Curve Crest Blvd. While traditional flame -based cremation can cause the gaseous release of carbon dioxide, nitrogen oxides, mercury vapor, and other vapors, the bio- cremation process has little to no gaseous releases. There are no smoke stacks or exterior vents from the Resomator unit itself. No exterior modifications to the existing building are required. All discharge from the Resomator to the City's waste water system is regulated by an industrial discharge permit issued by the Metropolitan Council and as such is subject to periodic testing to ensure they are within required discharge limits. City Staff believes sufficient controls are in place to protect the present and potential use of adjacent properties since there are no gaseous releases from the system, no exterior building modifications, and the discharges will be periodically tested. Therefore, the difference between a funeral home without onsite bio- cremation services and one with onsite bio- cremation services would be negligible to most people. So staff supports a finding that a funeral home with onsite bio- cremation services is of the same general character as a funeral home and therefore allowable with a SUP. Stillwater City Code section 31 -322 (b)(2) allows the Planning commission to approve a use in the CRD district by SUP that is similar to other uses specifically allowed by SUP in the zoning District and will not impair the present or potential use of adjacent properties. If the Commission finds operating an on -site Resomator to be of the same general character of a funeral home and that it would not impair the present or potential use of adjacent properties, then the Commission could consider approving a SUP for the operation of a Resomator. 2 City of Stillwater Planning Commission August 8, 2011 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. • The proposed use meets the requirements of the zoning code. • The site currently complies with all other zoning code requirements. 2. Any additional conditions necessary for the public interest have been imposed. • Plans 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 for review and approval. • The site shall comply with the City's noise ordinance. • The Special Use Permit shall be reviewed before the Planning Commission and City Council for revocation if substantiated complaints regarding the use of the Resomator are received by the Community Development Director. The determination to schedule a review of the special use permit shall rest with the City Administrator. • The site shall comply with the requirements of the Metropolitan Council Environmental Services (MCES) Industrial Discharge Permit (permit). In the future if the permit is amended by MCES then the property owner shall submit a copy of the new permit to the Community Development Director (CDD) within five business days for review. If in the opinion of the CDD the new permit is a substantial change then the SUP shall be reviewed by the Planning Commission. 3. The use or structure will not constitute a nuisance or be detrimental to the public welfare of the community. • City staff from the City's engineering, public works, building, and planning departments along with staff from the Metropolitan Council's Environmental Services division have been reviewing the proposal for approximately a year. Staff is satisfied that the proposal will not have any adverse impacts to our systems and the Metropolitan Council has issued a permit for the proposal. Staff finds this criterion to be satisfied with the proposed conditions. Staff recommends that the Planning Commission find the proposed on -site Resomator to be of the same general character of other uses allowed in the CRD zoning district and that the use will not impair the present or potential use of adjacent properties and approve a special use permit to operate an on -site Resomator at the Bradshaw Celebration of Life Center with the following five conditions: 1. Plans will need to be approved by the engineering, fire and building officials before the issuance of a building permit. 3 City of Stillwater Planning Commission August 8, 2011 2. 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 for review and approval. 3. The site shall comply with the City's noise ordinance. 4. The Special Use Permit shall be reviewed before the Planning Commission and City Council for revocation if substantiated complaints regarding the use of the Resomator are received by the Community Development Director. The determination to schedule a review of the special use permit shall rest with the City Administrator. 5. The site shall comply with the requirements of the Metropolitan Council Environmental Services (MCES) Industrial Discharge Permit (permit). In the future if the permit is amended by MCES then the property owner shall submit a copy of the new permit to the Community Development Director (CDD) within five business days for review. If in the opinion of the CDD the new permit is a substantial change then the SUP shall be reviewed by the Planning Commission. Commissioner Siess asked if we are the first city in the state to consider bio- creation. Mr. Pogge responded that we are not the first; White Bear Township considered it but was denied as the site had environmental issues. No other city in Minnesota has approved this process, but St. Petersburg in Florida has approved it. The permit that the applicant has obtained from Met Council addresses the ph level of the discharge and limits allowed. Commissioner Dahlquist wondered if our public works staff has looked at that for any impact. Mr. Pogge responded that yes, they have, and that our City Engineer discussed it with Met Council, looked at it in depth for corrosion and possible gelling in the pipe, and found that they are not issues for the proposal before the Commission. Mr. Pogge went on to say that Mayo Clinic in Rochester has a similar operation for dealing with human remains, and that the University of Minnesota Twin Cities Campus has a similar process for animal remains. The applicant presented a project summary. Jim Bradshaw, his wife Jayne and son Jason were present. Mr. Bradshaw stated that it is the goal of The Bradshaw Group, Inc. to modify their SUP at 2800 Curve Crest Boulevard to accommodate a Resomator which performs the process of Alkaline Hydrolysis (Biocremation). Over the past years, the rate of cremation has increased from 30% to over 50 %. During this time, Bradshaw has outsourced the process of cremation; however, as more families ask where the cremation takes place and whether their family member ever leaves their care, it has become apparent that the entire process must be handled internally. He added that Bradshaw provides cremation services to over 400 families per year. Jason Bradshaw shared that at their Celebration of Life Center, they have consistently worked toward being as "green" and environmentally responsible as possible through the use of 4 City of Stillwater Planning Commission August 8, 2011 geothermal heating and air conditioning, GrassPave parking, management of their own water run -off, prairie grass landscaping, etc. While investigating possible crematory installation, Bradshaw realized various drawbacks including high energy use, high CO2 emissions, and significant levels of vaporized mercury. Bradshaw then began to investigate Alkaline Hydrolysis (Bio- cremation), resomation, aquamation, water cremation, and green cremation that were added into Minnesota state law as a third form of disposition in 2006 and was developed for human use by the Mayo Clinic in Rochester, MN. The process uses 85% Tess energy through reduction of electric and gas usage compared to traditional fire -based cremation, and has an equally large reduction of emissions. There is a 300 -400X reduction in mercury and heavy metal emission. Alkaline hydrolysis is seen as being far more "green" than cremation and arguably more than burial as there is no untreated waste or chemicals released into the environment or consumption of land. This process accelerates natural processes that occur, and uses about 13.2% of the energy and gives back only 12.5% of the CO2 that the traditional process does. He stated that installation would be completed in the existing structure. Based on experience, there are no air emissions (outside of a small amount of CO2 for the steam boiler), no odor using the Resomator and no sound (machine operates at the same level as a Bosch dishwasher). The process does release a liquid waste into the sanitary sewer system. The effluent has been extensively studied and has received a permit from Met Council for waste water discharge. Met Council will provide ongoing monitoring. The machine itself is licensed through the Minnesota Department of Health, Mortuary Science division. Given approval of the process, installation and operation would begin in the fall of 2011. Special training will be given to staff for monitoring discharge, and some will need a steam boilers license. When asked about embalming, Mr. Bradshaw responded this is not a process they do at the location in Stillwater. Commissioner Spisak asked about the Met Council permit which requires a certain level of testing and reporting. Mr. Bradshaw said that he is very confident about being able to comply with those requirements. Commissioner Siess asked what happens if testing reveals chemical balances above approved levels. This question was referred to Met Council. She also asked about potassium hydroxide. Mr. Bradshaw explained that potassium hydroxide is an ingredient in make -up and other commonly used items, and that it is the alkaline ingredient of choice. Commissioner Dahlquist questioned the risk and the willingness to make adjustments when adopting a new technology. Mr. Bradshaw replied that they have spent a lot of time looking at what can go right and what can go wrong. They have visited the manufacturer and other facilities and are very comfortable with the process and the machinery. Met Council staff engineer, Peter Berglund, assured the Commission that with this process, waste water will go into a holding tank, as will follow up rinses that are generated. Ph will be tested, and if there is a problem with the Ph, it would need to be adjusted with acid or CO2 before it goes into the sewer. The University of Minnesota operation has held a permit for a number of years and he 5 City of Stillwater Planning Commission August 8, 2011 is unaware of any problems with discharges recently. Years ago there were some problems with odor, but none since. Commissioner Siess asked about requirements for monitoring and reporting. Mr. Berglund answered that the process will be monitored three times when the operation first starts up, then annually after that. Met Council has the authority to go in and take samples at any time. They looked at the process very carefully before approval, as this is a new use for a funeral home. Met Council visited the operation at Mayo Clinic and found no issues that would lead to denial. Chair Dahlquist opened the public hearing. There was no one present who wished to speak, so the public hearing was closed. Commissioner Kocon mentioned that with regard to by- products going into sanitary sewers. He was curious as to what treated by- products are comparable in daily life. Mr. Berglund responded that there probably isn't anything comparable other than at Mayo and the U of M. There are many food - related by- products (fat, grease) along with industrial waste that would have some similarities. What makes bio- cremation unique is that with heat and caustics and treatment in the holding tank, organic bearing waste water is broken down much more than with other discharge. Commissioner Dahlquist asked since this is a Special Use Permit, is it subject to review if there are issues. Mr. Pogge responded that a condition was added to cover all the bases. Commissioner Kocon, seconded by Commissioner Malsam, moved to approve Case No. 2011 -17 with the five stated conditions. Following more discussion, the motion was approved 6 -1, with Siess opposed. Commssioner Siess stated that this seems like an environmentally friendly process, but does not seem natural. As Stillwater is one of the first cities in the nation to consider this, she is concerned about what is going into the waste water system and if the public knows what a resomator is. Ms. Siess proposed having another hearing to provide more public information. Mr. Pogge stated that a notice went out from the City as well as from the applicant to all the neighbors, encouraging them to ask questions. Commissioner Kocon reiterated that if this is an approved use and if Met Council says it meets their requirements, he doesn't see a problem with it. This is a planning decision and his motion stands. Commissioner Dahlquist expressed his feeling that bio- creation is more of an accelerated natural process. The primary concern is with waste water systems, and it appears that this has been dealt with, and if there are problems, our staff, the applicant, and Met Council will monitor it and make adjustments. Chemicals being used are not toxic; organic compounds being used are relatively benign. 6 City of Stillwater Planning Commission August 8, 2011 Commissioner Siess clarified for the record that her opposition was only that she felt that the public deserved more notice. CASE NO.: 2011 -19. A variance request for a garage setback Iocated at 502 5th Street North in the RB, Two Family Residential District. Cates Fine Homes, Jennifer Cates Peterson, representing KC Kidder, applicant. Commissioner Kelly recused himself from the discussion due to a possible conflict of interest. Mr. Turnblad introduced the case. K.C. Kidder proposes to demolish the vacant house at 502 North 5th Street and replace it with a new house that would be constructed by Cates Fine Homes. The Heritage Preservation Commission has approved a demolition permit for the existing home and a design permit for the new home, both approvals with the condition that they will become effective only if the Planning Commission approves the related variances. In order to construct the new home as proposed, street and bluff line setbacks would be necessary. Cates Fine Homes has requested the following variances on behalf of their client K. C. Kidder: 1. A one foot setback variance from the North 5th Street right -of -way in order to allow the porch of the house to be constructed 19 feet from the right -of -way, whereas a minimum setback distance of 20 feet is required. (See attached site plan.) 2: An eight foot setback variance from the North 5th Street right -of -way in order to allow the garage to be constructed two feet back from the front porch of the house, whereas the minimum setback distance from the front of the house for the garage is required to be 10 feet. 3. A 32 foot setback variance from the West Cherry Street right -of -way in order to allow the attached garage to be constructed 10 feet from the right -of -way, whereas the required 10 foot offset from the front of the house would mean the minimum setback from the right -of -way would be 42 feet. 4. A four foot setback variance from the McKusick Ravine bluff line in order to allow the house to be constructed 26 feet from the bluff line, whereas a minimum setback distance of 30 feet is required. All of the setbacks are considered an improvement. A house has existed on the subject property for a century and its existence has not created known physical difficulties for surrounding properties or City improvements. Staff feels it is reasonable to allow the modestly sized replacement house on the property, especially since the new house would be further from 5th Street and further from the McKusick Ravine bluff line than the existing house, and the attached garage would maintain the same setback from the Cherry Street right -of -way as the existing house. 7 City of Stillwater Planning Commission August 8, 2011 Unfortunately, a combination of zoning regulations precludes the construction of a garage on this property. The zoning of the lot requires a garage to be 10 feet further back from a street right -of -way than the wall of the house that is parallel to that right -of -way. On a corner lot such as this one, a garage would have to be in the back yard, but it would then be located within the required bluff line setback area. Consequently, the combination of requirements prohibits the landowner from having a garage without a variance. The State of Minnesota enables a City to grant variances when they meet the review criteria below. 1. A variance may be granted when the applicant establishes that there are "practical difficulties" in complying with the Zoning Code. A practical difficulty means that the property owner proposes to use the property in a reasonable manner not permitted by the Zoning Code; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute a "practical difficulty." a. Is the request reasonable? Both the house and the attached garage are of very modest size. The setbacks from 5th Street and from the McKusick Ravine bluff line would both be greater than the existing house currently have. The setback from the platted right -of -way of Cherry Street (unimproved except for a private driveway) would continue to be the same as the existing house. Therefore, staff finds the requested variances to be reasonable. b. Is the plight of the landowner due to circumstances unique to the property? There may be no other intersection in Stillwater with the same set of physical limitations as those found at North 5th and West Cherry Streets. Though West Cherry is a platted public street it is not improved as a street, nor will the block west of 5th likely ever be improved as an actual street. None the less, since it is platted as a road, the garage setbacks apply. The result is that even though this section of Cherry Street will never have a streetscape to protect, the streetscape protection rule of increasing the garage setback 10 feet beyond the building line still applies. This forces the garage into the back yard. But to make the set of circumstances even more unique, the back yard is unbuildable because it lies within the McKusick Ravine bluffline protection setback area. Therefore, staff finds the circumstances to be unique. c. Are the circumstances created by the landowner? The landowner did not create the set of circumstances associated with the property. d. If granted, would the variance alter the essential character of the locality? The variance would not alter the essential character of the immediate neighborhood. All of the houses on North 5th Street south of Laurel have front setbacks of less than 20 feet. This can be seen in the attached neighborhood map. Except for the house directly across the street from the subject property, every front setback is considerably less than the 19 feet requested by K.C. Kidder. e. Is the lone consideration an economic one? The major consideration is about allowing the property to continue to have reasonable usefulness. 8 City of Stillwater Planning Commission August 8, 2011 2. The variance must be in harmony with the Zoning Code and the Comprehensive Plan. a. What is the purpose of the regulation for which the variance is being requested? The two major setback types at play in this request are intended to protect the McKusick Ravine with a buffer area and to preserve the early 20th Century streetscape. If the required 20 foot setback from the 5th Street right -of -way to the porch is maintained, the 22 foot deep house and garage would be pushed a foot closer to the ravine. Since no other house in the immediate neighborhood has a setback of more than 19 feet from 5th Street, it makes sense to match that setback and maximize the protective buffer for the ravine bluff line. b. If granted, would the proposed variance be out of harmony with the Zoning Code? No, it would not be out of harmony with the Zoning Code. Since Cherry Street is not improved, there is no streetscape to protect there. Moreover, the proposed setback of the new house and garage would exceed that of the existing house on the lot and also meet or exceed the front setback of every house on 5th Street between Laurel and the McKusick Ravine. c. If granted, would the proposed variance be out of harmony with the Comprehensive Plan? No, it would not be out of harmony with the Comprehensive Plan. The lot size is consistent with the Comprehensive Plan's land use plan for the neighborhood, and the environmental protection highlighted by the Comprehensive Plan will be respected by the proposed improvements to the property. 3. No variance may be granted that would allow any use that is prohibited in the zoning district in which the subject property is located. The property is zoned RB, Two - Family Residential. The proposed use of the property would be a new single family house with an attached garage. Both single family and two - family houses are permitted in the RB Zoning District. City staff finds the variance review criteria to be satisfied and therefore recommends approval as requested. Commissioner Spisak asked if there were any infill guidelines that apply to this home. Mr. Turnblad replied that the Heritage Preservation Commission approved a demolition permit and a design review permit, dependent on approval of variances. He also stated that a building permit will review such things as run -off from the roof and that construction will not affect the bluff line. Chair Dahlquist opened the public hearing. As no one was present who wished to speak, the public hearing was closed. This is the first case considered under the new statutes, and has four variances. Commissioner Spisak wondered if they were setting a precedent for approving applications with more variances in the future. Mr. Turnblad answered that the commission should look at the whole package rather than the number of variances, and that each application should be judged on its own merit. Thus a decision on this case does not legally set a precedent. A fairness issue would only come 9 City of Stillwater Planning Commission August 8, 2011 into play if another case was nearly identical. This case is unusual and unique; it's a corner lot, the street is unimproved, and the back yard is a ravine. Commissioner Spisak asked about the depth of the porch. Ms. Peterson replied that it is six feet. She added that wider would be good, but that is what they had to work with. Two homes to the north are closer to 5th Street than this home. Across the street and to the south, that house has a 10 foot setback. Thus, the requested setbacks on this house seem reasonable. The side loading garage minimizes the effect of the setback rather than a garage door facing the street. Commissioner Siess asked what HPC's conditions were. Mr. Pogge responded that there are 28 Infill Design Guidelines, including looking at surrounding properties for compatibility in appearance, good neighbor consideration (lighting, adequate privacy), and architectural detailing features such as siding being comparable with the area as a few examples. Commissioner Malsam felt the variances are fair and that the house is a definite improvement to the neighborhood. Commissioner Malsam, seconded by Commissioner Buchanan, moved to approve Case No. 2011 -19 with the stipulation that the City Engineer look over the plan to assure control of water run off. Motion was approved unanimously. CASE NO. 2011 -20. A variance to the accessory structure regulations (500 square feet allowed, 716 square feet requested), the front yard setback (15 ft required, 3 ft requested) and to the minimum height of a building (25 ft required, 14 ft requested) for the construction of a restroom facility related to the Downtown Stillwater Pedestrian Walkway Project. City of Stillwater, applicant. Mr. Pogge introduced the case. The City of Stillwater is proposing to develop the new Pedestrian Walkway project in Downtown Stillwater. The project will provide an attractive, multiuse pedestrian corridor between North Main Street and Lowell Park at the Commercial Street intersection. The Heritage Preservation Commission reviewed plans for the project at their August 1st meeting and approved them with the condition that their approval becomes effective only if the Planning Commission approves the related variances. In order to construct the new restroom as proposed, three variances are necessary related to front yard setbacks, building height, and floodplain requirements. The City of Stillwater has requested the following variances: 1. A 9.5 foot setback variance from the front property line in order to allow the restroom to be constructed 5.5 feet from the Water St N right -of -way, whereas a minimum setback distance of 15 feet is required. 10 City of Stillwater Planning Commission August 8, 2011 2. A 10.75 foot height variance to the minimum height requirements in the CBD zoning district in order to construct a 14.25 foot tall restroom, whereas the minimum height requirement is 2 stories or 25 feet. 3. A variance to the floodplain overlay district requirements in order to construct an accessory structure (restroom building) in the floodplain. 716 square foot structure requested, 500 square foot square foot maximum allowed. Since the first open house in March of 2011, the design team led by Sanders Wacker Bergly has refined and reviewed the plans with the Council, HPC, and Parks commission a total of 12 times. Input from these meetings helped develop the plans to the final designs that are now before the commission. During the planning process, three locations for the restroom building were considered. Site #3 located in the southwest corner of the new Pedestrian Walkway and immediately west of and adjacent to Water Street was ultimately selected as the preferred option. Front Setback Requirement: In the CBD, the required front setback is 15 feet; however, if an adjacent existing building has a lesser setback then the setback for the new building may be similar to the existing building. Since there is no adjacent building, technically a 15 foot setback from Water St N ROW is required. Moving the building to meet the required setback impacts the openness of the walkway, the location of the pergola, and increases the likelihood that views of the River from Main St will be impacted. For these reasons, the City is seeking a variance to the required setback. Height Standards: In this location the minimum height requirement is two stories or 25 feet while the maximum height requirement is three stories or 37 feet. For purposes of the minimum height requirements, the building is measured to the midpoint of the gable roof, which is 14.25 feet while for the maximum height requirements the building is measured to the top of the gable which is 18 feet. If the City would meet the minimum height requirement in this location additional views of the river and Kolliner Park bluff line would be blocked. Flood overlay district requirements: The base flood elevation at this location is 692.6 feet. The regulatory flood protection elevation is one foot above base flood elevation or 693.6 feet at this location. A provision in the Stillwater floodplain ordinance allows a building to be built below the regulatory flood protection elevation if the building is of "minimal investment," is less than 500 square feet in size, and flood proofed to the FP -3 or FP -4 as out lined in the Minnesota State Building Code. The City will build the new restroom to the required flood proofing standards. As a non - habitable restroom, it is the position of the City that the proposed building meets the requirements to be considered a building of "minimal investment "; however, at 716 square feet in size, the building requires a variance to the maximum allowable size. The City believes that the size of the proposed restroom is needed in order to adequately serve the needs of the community. The City has discussed the proposed flood overlay district variance with FEMA and the DNR and they have found the proposed variance to be satisfactory. 11 City of Stillwater Planning Commission August 8, 2011 The State of Minnesota enables. a City to grant variances when they meet the review criteria below. 1. A variance may be granted when the applicant establishes that there are "practical difficulties" in complying with the Zoning Code. A practical difficulty means that the property owner proposes to use the property in a reasonable manner not permitted by the Zoning Code; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute a "practical difficulty." a. Is the property proposed to be used in a reasonable manner? The restroom itself is a modestly sized 716 square foot building that serves the users of downtown Stillwater. With impacts to the layout of the site, loss in parking, and impacts to view of the River from Main St the proposal is reasonable. b. Is the plight of the landowner due to circumstances unique to the property? Building a public space for the benefit of the public is unique in itself and balancing the needs of the area with the zoning code can be difficult. Within the core of the historic district, it is critical to maintain multi -story buildings to avoid situations like the cosmopolitan bank building. Outside of the core area a multi -story building is less important. Balancing the needs of the floodplain overlay district with other considerations like parking, view sheds, and protecting the historic district can also be challenging. Balancing this creates a unique challenge. Therefore, staff finds the circumstances to be unique. c. Are the circumstances created by the landowner? The City did not create the set of circumstances associated with the property. d. If granted, would the variance alter the essential character of the locality? While the project seeks to convert the existing parking lots to a new pedestrian walkway, thus changing the character of the area, the variance itself does not alter the essential character of the immediate neighborhood. If not granted, the required height and setback would negatively affect views and the usefulness of the pedestrian walkway and the adjacent public parking lots. e. Is the lone consideration an economic one? The City has nothing to gain economically with these proposed variances. 2. The variance must be in harmony with the Zoning Code and the Comprehensive Plan. a. What is the purpose of the regulation for which the variance is being requested? The floodplain requirement is to protect the building from flooding and potential loss. The minimum height requirement is to protect the historic qualities and form of the downtown. Finally, the setback is to provide sufficient light and air to adjoining properties and promote for a uniform setback. b. If granted, would the proposed variance be out of harmony with the Zoning Code? No, it would not be out of harmony with the Zoning Code. The planning and public review that has been involved with this project has insured that the project is well thought out in harmony with the area. 12 City of Stillwater Planning Commission August 8, 2011 c. If granted, would the proposed variance be out of harmony with the Comprehensive Plan? No, it would not be out of harmony with the Comprehensive Plan. The plan was proposed in the Comprehensive Plan. 3. No variance may be granted that would allow any use that is prohibited in the zoning district in which the subject property is located. The property is zoned CBD, Central Business District. The creation of the pedestrian walkway is consistent with the zoning code and not a prohibited use. City staff finds the variance review criteria to be satisfied and therefore recommends approval as requested. Commissioner Kocon questioned the square footage of the restroom as more than needed. Mr. Pogge responded that the size meets ADA standards for the minimum required for a handicapped stall and turning radius. Some of the space is a utility room that accommodates sprinkler systems for Lowell Park. Mr. Turnblad said that putting more urinals or stalls in what appears to be empty space is not an option with the ADA requirements. Commissioner Siess asked why the restroom will be located on the comer of Water Street, right by the bus stop. Mr. Pogge responded that the city looked at three different locations, and this one was deemed the most desirable for this project. Other locations were more prone to flooding or more likely to block views of the river. Ms. Siess asked if the designated handicapped parking should be closer to the restroom. Mr. Pogge responded that parking location serves the commercial area more than the park area as it is more likely to be the ultimate destination of visitors. The public hearing was opened. As no one was present who wished to speak, the public hearing was closed. When asked about whether or not a variance was required from the DNR, Mr. Pogge replied that the department has been in discussion with FEMA and the DNR and both have said the project is okay, though neither is required to give formal approval. Commissioner Malsam, seconded by Commissioner Kocon, moved to approve Case No. 2011 -20 with the variances as listed above. Motion approved unanimously. Case No. 2011 -21. A street vacation for a portion of the east 9 ft of Water Street starting at the north line of Myrtle St E and extending north 208.1 ft. City of Stillwater, applicant. Mr. Pogge introduced the case. The request before the Commission is for the vacation of a 9 -foot strip of land along the east side of Water St N that begins at the north right of way line of Myrtle St 13 City of Stillwater Planning Commission August 8, 2011 E and runs north 208.1 feet as shown as Parcel "C" on the attached map. The City will retain a sidewalk easement over the west five feet of the portion of Water Street being vacated. The City of Stillwater is seeking to voluntarily acquire a 43.88 foot by 91.4 foot parcel of land from St Croix Preservation Co Inc, Parcel "A" on the included map. Parcel "A" will be incorporated in the new pedestrian walkway project that connects Main St to Lowell Park and the various parking areas east of Main Street. In exchange for Parcel "A" the City has agreed to provide the following to St Croix Preservation Co Inc: convey a 5.0 foot by 208.1 foot parcel of land adjacent to North Lowell Park, Parcel "B "; vacate a 9.0 foot by 208.1 foot section of Water St, Parcel "C "; reimburse the owner for cost related to the acquisition; provide a loan to reconstruct the entire Water St Inn parking lot; and relocate the exiting curb line and utilities in the portion of Water Street proposed to be vacated. As to the question of the street vacation itself, Mr. Pogge listed 3 criteria. 1. Is it necessary or desirable - do we need the property for public purpose in the future? There are some public utilities in there, namely storm water intake and a portion of Water Street. The city has agreed to relocate the curb line and storm water utilities out of Water Street and would pay those costs as part of the land transfer. 2. Are there any terms or conditions, reservations or dedication of easement that are necessary for protecting the public in the future? The City is obtaining a sidewalk easement. 3. Does the street vacation have a public benefit? It is not being vacated for the benefit of the property owner. The City is gaining more land than it is losing, so there is a public benefit. The curbline will be moved four feet to the west, to the back curve. Staff is recommending approval of the street vacation. Commissioner Dahlquist had a number of questions: 1. Will vacating the 9 feet change the setback locations on the remaining property for future use? Mr. Pogge responded that any time you move the property line, it will change the setbacks, which will go to the new property line. This is zoned Central Business District and since there is no existing building on the site it requires a 15 ft setback from the property line. 2. Moving the curb line out, will parking remain? Mr. Pogge said yes, there will be parking on both sides. 3. In the background portion of the report, it mentions as part of the negotiated agreement that the City is reimbursing the owner for costs associated with the agreement. Mr. Pogge responded that there are minimal costs of under $10,000 for as re- striping and expansion of the parking lot. The City will also provide a loan that Water Street Inn will repay over 15 years with an interest rate of 3.25% to cover reconstruction of the entire parking lot. The exact amount of the loan is not known yet. 4. Is there an estimate of total cost? Mr. Pogge said that the loan will be repaid so that is not included as a cost. The utility cost is about $33,000 and the portion of reimbursement is about $10,000 so it is under $50,000. 14 City of Stillwater Planning Commission August 8, 2011 The City will also reimburse half the cost of relocating the trash enclosure next to the hotel building, up to $10,000. Commissioner Spisak questioned the 9 foot variance and the need to relocate the sidewalk. Mr. Pogge explained that in this district a 15 foot setback is required, so with the new property line where the building would potentially be built, the setback is closer to Water Street itself. On the drawing displayed, Mr. Pogge pointed out the ROW line with the sidewalk in the ROW itself, which would normally require 15 feet between the ROW line and the building. By including the sidewalk as part of the Water Street property, the owner can move the building 5 feet closer to the street. Commissioner Siess asked for clarification that Water Street Inn would get a new parking lot. Mr. Pogge responded that they will be reimbursed for part of the cost along with a repayable loan. As a trade -off, the City gets a valuable piece of property to make the pedestrian connection. Chair Dahlquist opened the public hearing. As there was no one present who wished to speak, the public hearing was closed. Commissioner Buchanan, seconded by Commissioner Spisak, moved to approve Case No. 2011 -11 street vacation as conditioned. Motion carried unanimously. This is a recommendation to the City Council for approval, to be placed on the agenda for their first meeting in September. Case No. 2011 -09. An ordinance amendment for seasonal outdoor sales and vending carts. City of Stillwater, applicant. Planning Commissioners have over the years been dissatisfied with the City Zoning Ordinance requirement that vendors and seasonal outdoor sales have a Special Use Permit (SUP). By the very nature of these uses, the operators are not tied to the property for which the SUP is issued. They are more similar to transient merchants than they are to commercial uses for which Special Use Permits are issued. In response, the Planning Commission asked City staff to research a more fitting way to permit these uses. At the August 9, 2010 Planning Commission meeting, staff presented several options. The Commission discussed the options and came to a consensus. Subsequently the Commission has worked through a first draft of an ordinance that creates an annual permitting process for seasonal outdoor sales and vending. The permit for the businesses would be approved by the Planning Commission for the first year. That initial permit would expire on December 31st. For each subsequent year (without substantial changes), the permit would be reviewed and issued by City staff. 15 City of Stillwater Planning Commission August 8, 2011 In April of 2011 the Commission asked City staff to request comments on the draft ordinance from all current vending cart and seasonal outdoor sales businesses. That is complete and the comments were incorporated into a second draft of the ordinance. See copy in the packet. Mr. Turnblad stated that he sent out a letter and talked to those with vending carts and tents for seasonal sales. One person suggested corrections; the rest were fine. The ordinance is in legislative form and shows changes in red. On first page, a simple change went from June 30 to July 15 as final date garden centers would be allowed to stay in place. The same 90 -day period was kept, but allowed it to run 2 weeks later. Another suggestion on page 2 is about signage. The City allows a total of 3 signs for tent sales, like garden centers and fireworks, but only one could be mounted on the tent. The suggestion was to allow two signs on the tent, so this language was added. The third change is on page 3 under subdivision 2 regarding annual permits on private property. For clarification, this does not allow people to put vending carts into our parks, and language was changed from "on private property" to "only on private property." Staff is asking that the Planning Commission recommend to City Council to adopt this ordinance. When asked if banners are part of the 3 signs, or if they are additional, Mr. Turnblad said that a sub paragraph could be added that there are only 3 possible signs, under the following standards. On the subject of food vending, both positive and negative issues have been addressed. The biggest one is that vending trucks can only be on private property. One problem the City has not considered is generators on food service trucks. It was assumed that utilities will be brought in from a building, but it should be clarified how vendors will access power. Commissioner Siess wondered if we approve this ordinance today, can we go back and change it after we investigate what other cities are doing. Mr. Turnblad replied that yes, this ordinance can be considered over time. The next round of applicants won't come in until January. Commissioner Buchanan asked that since permitting is separated from the property, what would prevent one vendor from applying for a seasonal 90 -day permit and then another comes in with something else up in the same place, and so on, potentially occupying that same spot for a whole year (ex: garden center, then fireworks sales, then Christmas tree sales). This is allowed under present regulations. Permits take into consideration parking space and safety. At issue is the possibility of having tents up all year and becoming an eyesore. Potentially a business owner could have tents up all year, but it is on private property, and the owner is enhancing his own business, not detracting through competing sales, so it tends to be self - limited. Dates in the ordinance (July 15) preclude year round tents for seasonal garden centers, but other venues could still come in. Since these are annual permits, if there are legitimate concerns (generators, noise, fumes, etc.) those can be addressed before the permit is issued a second year. Mr. Turnblad stated that to his knowledge there have not been any complaints about tents in a business parking lot. Most of the tents are in larger commercial areas like Cub Foods and not in the downtown area. 16 City of Stillwater Planning Commission August 8, 2011 Commissioner Dahlquist, seconded by Siess, moved to table the ordinance for one month to give staff time to investigate what other cities do about generators. Motion carried unanimously. The draft ordinance includes regulations for Seasonal Outdoor Sales (e.g. sales tents). See the packet for a complete copy. The draft ordinance includes regulations for Food Vending Carts are as follows: 1. Seasonal Food Vending is allowed by annual permit only on private property as an accessory use within the CBD Zoning District. For purposes of this subdivision, "Seasonal Food Vending" does not include food vending for events. 2. Event food vending requires an event permit pursuant to City Resolution No. 2010 -204 and any subsequent revisions to that resolution. 3. The annual permit for a Seasonal Food Vending cart or vehicle may be approved by the City subject to the conditions as listed in the packet. The existing Special Use Permits for seasonal garden centers and fireworks in the city will be grandfathered. But, it would be advantageous to the businesses to apply for an annual permit even though they would have to pay a small fee. The reason is that they would then not be required to attend an annual public hearing before the Planning Commission. Their time spent in an evening meeting would be more valuable than the small fee. None the less, it would be left up to the operators of the seasonal businesses to decide whether they want to continue to use their SUPs or switch to an annual permit. If they choose to apply for a permit, they would be asked to submit a letter sun setting their existing SUPs. If they switch to an annual permit, staff would suggest that the hearings that they have already had before the Planning Commission would count as the initial annual permit review. So that their first annual permit could be issued by staff. This would offer more incentive for them to switch to the annual permit. City staff suggests recommending that the City Council adopt the attached ordinance. OTHER BUSINESS Variance Review Criteria Discussion, Bill Tumblad, Community Development Director During the 2011 legislative session the state law relating to variance review standards was amended. To be consistent with the new law, the city must amend its Zoning Ordinance. The amended law showing additions and deletions is contained in the packet. The main change is that the term "hardship" is now eliminated and allows a zoning authority to issue a variance to a zoning control if there are "practical difficulties" which are described as follows: • The property owner proposes to use the property in a reasonable manner not permitted by an official control 17 City of Stillwater Planning Commission August 8, 2011 • The plight of the landowner is due to circumstances unique to the property not created by the landowner • The variance, if granted, will not alter the essential character of the locality Essentially, the variance would look at how it impacts the neighborhood, whether or not the landowner created the difficulty, and whether or not it is being done for economic considerations alone. The current City Code language on variances is in Chapter 31, Section 31 -208. A copy is included in the packet. Necessary Changes: Subsection (d) must be revised to be consistent with the new state law. The City may also want to revise subsection (a). The revisions to subsection (d) could be similar to the language used in the Kidder variance case (Case No. 2011 -19). It includes the following review criterion: A variance may be granted when the applicant establishes that there are "practical difficulties" in complying with this chapter. A practical difficulty means that the property owner proposes to use the property in a reasonable manner not permitted by the Zoning Code; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute a "practical difficulty." Staff will incorporate discussion into a draft ordinance that will be brought back to the Planning Commission at the September 12 meeting. There being no further discussion, Commissioner Kocon, seconded by Commissioner Spisak, moved to adjourn at 9:25 p.m. Motion passed unanimously. Respectfully submitted, Carol Danielson Interim Recording Secretary 18 pater. THE BIRTHPLACE OF MINNESOTA PLANNING REPORT DATE: September 8, 2011 APPLICANT: City of Stillwater RE: Variance Review Criteria REPORT AUTHOR: Bill Turnblad, Community Development Director BACKGROUND During the 2011 legislative session the state law relating to variance review standards was amended. To be consistent with the new law, the city should amend its Zoning Ordinance. DISCUSSION The primary change in the state statute is that the term "hardship" is now eliminated and allows a zoning authority to issue a variance if there are "practical difficulties ". "Practical difficulties" are described as follows: • "the property owner proposes to use the property in a reasonable manner not permitted by an official control; • 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." Attached are both the statutory changes and the first draft of revisions to the city code. RECOMMENDATION Staff advises the Planning Commission to recommend that the City Council adopt the proposed code amendment. Attachment: 2011 Session Law for Variances 1st Draft of Revisions League of Minnesota Cities Brief Chapter 19 - Revisor of Statutes Minnesota Session Laws Key: (1) Ianguagc to be dcictcd (2) new language 2011, Regular Session This document represents the act as presented to the governor. The version passed by the legislature is the final engrossment. It does not represent the official 2011 session law, which will be available here summer 2011. Page 1 of 2 Search CHAPTER 19-- H.F.No. 52 An act relating to local government; providing for variances from city, county, and town zoning controls and ordinances;amending Minnesota Statutes 2010, sections 394.27, subdivision 7; 462.357, subdivision 6. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: Section 1. Minnesota Statutes 2010, section 394.27, subdivision 7, is amended to read: Subd. 7. Variances; hardship practical difficulties. The board of adjustment shall have the exclusive power to order the issuance of variances from the terms requirements of any official control including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control • , and when Q1., t.,1���� the v variances are consistent with the comprehensive plan. "I Iards141' a...1 Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control. "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by an official control; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone sham do not constitute practical difficulties. Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth sheltered construction as defined in section 216C.06, subdivision 14, when in harmony with the official controls. No variance may be granted that would allow any use that is pr biteel not allowed in the zoning district in which the subject property is located. The board of adjustment may impose conditions in the granting of variances ter. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance ' and le p. et.,C1 adJ a.,cul prepC� t■, 111111VJ1. EFFECTIVE DATE.This section is effective the day following final enactment. Sec. 2. Minnesota Statutes 2010, section 462.357, subdivision 6, is amended to read: Subd. 6. Appeals and adjustments. Appeals to the board of appeals and adjustments may be taken by any affected person upon compliance with any reasonable https: / /www.revisor.mn.gov /laws / ?id =19 &year =2011 &type =0 5/5/2011 • Chapter 19 - Revisor of Statutes conditions imposed by the zoning ordinance. The board of appeals and adjustments has the following powers with respect to the zoning ordinance: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative officer in the enforcement of the zoning ordinance. (2) To hear requests for variances from the , requirements of the zoning ordinance including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the ordinance and when the variances are consistent with the comprehensive plan. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance. "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; the plight of the landowner is due to circumstances unique to the property not created by the landowner;; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone sh ++ do not constitute practical difficulties. Practical difficulties include, but is are not limited to, inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth sheltered construction as defined in section 216C.06, subdivision 14, when in harmony with the ordinance. The board of appeals and adjustments or the governing body as the case may be, may not permit as a variance any use that is not permitted allowed under the zoning ordinance for property in the zone where the affected person's land is located. The board or governing body as the case may be, may permit as a variance the temporary use of a one family dwelling as a two family dwelling. The board or governing body as the case may be may impose conditions in the granting of variances to • . '. , ,', , , • .. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance. EFFECTIVE DATE.This section is effective the day following final enactment. Page 2 of 2 https: / /www.revisor.mn.gov /laws / ?id =19 &year =2011 &type =0 5/5/2011 1st DRAFT Sec 31 -208. Variances Variances shall require the following: (a) Purpose. The purpose of the variance is to allow variation from the strict application of the terms of this chapter where, by reason of the exceptional physical characteristics of the property, narrowness, shallownerz, or unusual chaps f a specific piece of ci#y r by rags n of cxcepti nal size, shape, topographic conditions -er the extrain ,,.y condition of the property; or because of the use or development of lands immediately adjoining the property, the literal enforcement of the requirements of this chapter would involve cause practical difficulties for the landowneror would cause undue hardship. (b) General provisions. In no case may a variance be granted to permit a use or a density other than a use or density permitted in the district. Nonconforming uses or neighboring lands, structures or buildings in the same district or other districts may not be considered grounds for issuance of a variance. The planning commission may impose conditions in the granting of a variance. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance. (c) Procedure. A public hearing must be held by the planning commission. (d) Findings required. The planning commission may grant a A- variance, may be grantedbut only when all of the following conditions are found: (1) A hardship peculiar to the property, not created by any act of the wner, exists. Perse+l, famih r financial difficulties, 1 f f pr spective profits-R.1,14 neighboring vi lations arc n t hardship justifying a variance.The variance is in harmony with the general purposes and intent of this chapter. (2) A variance is necessary for the preservation and enjoyment of substantial property rights; and, if granted, would not constitute a special privilege not enj yed by ncighb rs.The variance is consistent with the comprehensive plan. (3) The auth rizing of the variance will not be of substantial detriment t adjacci t ?reperty and will n t materially impair the purp sc and intent f this chapter or the public interest nor adversely affect the c mprehensive plan.The applicant for the variance establishes that there are practical difficulties in complying with this chapter. "Practical difficulties ", as used in connection with the granting of a variance, means that all of the following must be found to apply: (i) The proposed variance is reasonable; (ii) The plight of the landowner is due to circumstances unique to the property and that are not created by the landowner; and (iii) The variance, if granted, will not alter the essential character of the neighborhood. l st DRAFT Economic considerations alone do not constitute practical difficulties. (e) Recurrent conditions. A variance may not be authorized if the community development director finds that the condition of the property or the intended use of the property for which the variance is sought is so general or recurrent in nature that a general regulation for the condition is required. (f) Precedents. A previous variance must not be considered to have set a precedent for the granting of further variances. Each case must be considered on its merits. (g) Height variances. The city council is the final city authority for deciding upon any request for a height variance that would be more than ten percent greater than the height allowed in this chapter. The planning commission must hold a public hearing on a height variance request and must make a recommendation to the city council on whether the requested variance meets the findings required in Section 31- 208(d). 1 LEAGUE OF MINNESOTA CITIES CONNECTING & INNOVATING SINCE 1913 2011 Variance Legislation The changes, which are now in effect, may require some cities to change ordinances or statutory cross - references. After a long and contentious session working to restore city variance authority, the final version of HF 52 supported by the League and allies was passed unanimously by the Legislature. On May 5, Gov. Dayton signed 2011 Minnesota Laws, Chapter 19, amending Minnesota Statutes, section 462.357, subdivision 6 to restore municipal variance authority in response to Krummenacher v. City of Minnetonka, 783 N.W.2d 721 (Minn. June 24, 2010). The law also provides consistent statutory language between Minnesota Statutes, chapter 462 and the county variance authority of Minnesota Statutes, section 394.27, subdivision 7. In Krummenacher, the Minnesota Supreme Court narrowly interpreted the statutory definition of "undue hardship" and held that the "reasonable use" prong of the "undue hardship" test is not whether the proposed use is reasonable, but rather whether there is a reasonable use in the absence of the variance. The new law changes that factor back to the "reasonable manner" understanding that had been used by some lower courts prior to the Krummenacher ruling. The new law was effective on May 6, the day following the governor's approval. Presumably it applies to pending applications, as the general rule is that cities are to apply the law at the time of the decision, rather than at the time of application. The new law renames the municipal variance standard from "undue hardship" to "practical difficulties," but otherwise retains the familiar three - factor test of (1) reasonableness, (2) uniqueness, and (3) essential character. Also included is a sentence new to city variance authority that was already in the county statutes: "Variances shall only be permitted when they are in harmony with the general purposes and intent of the ordinance and when the terms of the variance are consistent with the comprehensive plan." Learn More Read more about variances in: Land Use Variances: Frequently Asked Questions In addition, the new law clarifies that conditions may be imposed on granting of variances if those conditions are directly related to and bear a rough proportionality to the impact created by the variance. Consult your attorney for advice concerning specific situations. LEAGUE OF MINNESOTA CITIES INSURANCE TRUST 145 UNIVERSITY AVE. WEST PHONE: (651) 2814200 FAx: (651) 2814298 ST. PAUL, MN 55103 -2044 TOLL FREE: (800) 9254122 WEB: WWW.LMC.ORG In evaluating variance requests under the new law, cities should adopt findings addressing the following questions: • Is the variance in harmony with the purposes and intent of the ordinance? • Is the variance consistent with the comprehensive plan? • Does the proposal put property to use in a reasonable manner? • Are there unique circumstances to the property not created by the landowner? • Will the variance, if granted, alter the essential character of the locality? Some cities may have ordinance provisions that codified the old statutory language, or that have their own set of standards. For those cities, the question may be whether you have to first amend your zoning code before processing variances under the new standard. A credible argument can be made that that the statutory language pre -empts inconsistent local ordinance provisions. Under a pre - emption theory, cities could apply the new law immediately without necessarily amending their ordinance first. In any regard, it would be best practice for cities to revisit their ordinance provisions and consider adopting language that mirrors the new statute. Attached are a collection of sample documents reflecting the 2011 variance legislation. The attached samples include a draft ordinance, application form, and findings of fact template. While the attached materials may contain provisions that could serve as models in drafting your own documents, your city attorney would need to review prior to council action to tailor to your city's needs. Your city may have different ordinance requirements that need to be accommodated. If you have questions about how your city should approach variances under this new statute, you should discuss it with your city attorney or contact Jed Burkett, LMC land use attorney, at jburkett @lmc.org or (651) 281 -1247, or Tom Grundhoefer, LMC general counsel, at tgrundho @lmc.org or (651) 281 -1266. Jed Burkett 06/11 2 Planning Commission DATE: September 8, 2011 CASE NO.: 11 -23 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 12, 2011 PREPARED BY: Michel Pogge, City Planne 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 a garage that is approximately 20 foot by 22.5 foot 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' 4.0' 3' Side setback, garage 3' 4.9' 10'3" Garage Size 894.9 s.f. max "'450 s.f. 574 s.f. 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. In this case, the proposal would cause the site to be only 75.75 sq or 0.85% over on building coverage while at the same time the site will under the allowable total lot coverage by 1,369 sq or 15.3%. Due to the minimal amount the proposal exceeds in building coverage and how much under the proposal is under in total lot coverage staff feels that mitigation of the difference can be waived in this case. EVALUATION OF REQUEST The State of Minnesota enables a City to grant variances when they meet the review criteria below. 1. A variance may be granted when the applicant establishes that there are "practical difficulties" in complying with the Zoning Code. A practical difficulty means that the property owner proposes to use the property in a reasonable manner not permitted by the Zoning Code; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute a "practical difficulty". a. Is the property proposed to be used in a reasonable manner? The Commission generally considers garages and specifically a two car garage an important element for residential uses. A standard 24' x 24' two car garage is 576 square feet. The proposed garage is 22'8" by 25'4" for a total of 574 square feet. The applicant seeks that proposed dimensions in order to store lawn equipment and other item in the front portion of the garage while still fitting their two cars in the garage. Since the garage is the same area as a standard two stall garage, staff finds the requested variance to be reasonable. b. Is the plight of the landowner due to circumstances unique to the property? The applicant has rehabilitated the home including reintroducing original porches on the front and side of the home. Without these porches the property owner could construct the proposed garage without the variance. The City has consistently granted variances to enable projects when historic considerations are a factor and in this case creates the unique circumstance for the property owner. c. Are the circumstances created by the landowner? The landowner did not create the set of circumstances associated with the property. 223 Pine St W Page 3 d. If granted, would the variance alter the essential character of the locality? The variance would not alter the essential character of the immediate neighborhood. The proposed garage is designed to fit in well with the current home. e. Is the lone consideration an economic one? The major consideration is about allowing the property construct a reasonable garage. 2. The variance must be in harmony with the Zoning Code and the Comprehensive Plan. a. What is the purpose of the regulation for which the variance is being requested? The maximum building coverage serves two purposes. First, it seeks to prevent excess runoff from leaving a property. Second, it helps ensures that a property is not over built. b. If granted, would the proposed variance be out of harmony with the Zoning Code? No, since the property overall is well under the maximum lot coverage limits the request is not be out of harmony with the Zoning Code. Additionally, the difference in the mass of a garage with a 450 s.f. footprint and one with a 574 s.f. footprint is minimal and likely will not be noticed by most. c. If granted, would the proposed variance be out of harmony with the Comprehensive Plan? No, it would not be out of harmony with the Comprehensive Plan. 3. No variance may be granted that would allow any use that is prohibited in the zoning district in which the subject property is located. The property is zoned RB, Two - Family Residential. Garages are permitted in the RB Zoning District. 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. 3. Continue the public hearing until the October 10, 2011 Planning Commission meeting. The 60 -day decision deadline for the request is October 15, 2011. RECOMMENDATION Staff recommends approval 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 e mai I (a)doug lasdanksassoci ates.com Associates August 9, 2011 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 Request Application 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 two stall garage structure is 574 square feet. Along with the impervious building area of the existing dwelling and porches on the site, the total building impervious surface area is 2313 square feet. The total building impervious surface area exceeds the allowable building impervious surface area of 2237 square feet by 76 square feet. It should be noted that the impervious site paving area is well under the 25% limit for the RB district. The homeowners base their variance request on the following factors pertaining to the total building impervious surface area for the site: 1. The proposed garage footprint of 574 square feet is comparable to the footprint of a standard 24'x24' two stall garage. Past precedent from Planning Commission rulings on similar variance requests has held that the two stall garage standard is a reasonable use for a residence. The dimensions of the proposed garage result in the minimum practical area for the safe parking of two vehicles and a reasonable amount of storage. 2. The recent historical restoration of the house on the site involved the construction of new porches on the north and west sides of the house. The porches were required to replace the original covered porches in these locations and restore the house to its original historic appearance. The construction of the west porch alone adds 88 square feet of building impervious surface area to the total. The decision to restore the original porches is a unique burden placed on the homeowners in their efforts to be as historically accurate as possible. The City of Stillwater encourages its residents to restore and preserve its historical housing stock. The HPC recently recognized the homeowners with an award for their efforts to restore the home. In addition, the Planning Commission has followed a precedent of granting variances for porch construction that enhances the P 9 9 P character of Stillwater's historic neighborhoods. 3. The addition constructed at the south end of the original house contains the Master Suite, along with a Mud Room for entry from the garage and yard. The design of the addition is extremely efficient, with room sizes pushed to their smallest practical area to contain both construction cost and the building impervious area for the addition. The homeowners required the construction of the Master Bedroom and Bath on the main level of the house to permit them to live on one floor level as they age. Without this, the homeowners would not have been able to make reason- able use of the existing house. 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 CERTIFICATE OF SURVEY FOR: RICK VAN HORNE \ 855.2 855.4 9 G 60. W 0 SET NAIL IN WALL -, \ FM -8;LO CO i L _B6_Q�J I I-Tw moil \, - I I OW 604 .0 I - X -‘ . 835.4, \ 85,3 ' IOW Magi I-- \ ■ SET NAIL N WALL-. L i - _v v ' rryes4s .0-i I \ e_ _ J „ 1'OW L7 3 i E I? 00 p PROJECT LOCATION: 429 PINE STREET STILLWATER, MINNESOTA 0 20 40 SCALE: 1 INCH = 20 FEET 49.8 W ��-I Low eeoaJ \ -- FOUND 1/2" IRON PIPE 0.84' NELY OF PARCEL CORNER A / / \/ / v 1 4 / I /1/ V V 850.3 \ \ \ 854.8 \ ■ �1 rrr ens, v '[ 854.5 853.6 C, Ul p < x -NA 854.8 . X. 856 CNN 03 00 ° ;854.1 855.7 EXISTING IMPROVEMENT AREAS IN SQUARE FEET HOUSE = 1,355 GARAGE = 453 OVERHANG = 71 CONC. DRIVEWAY = 41 DRIVEWAY = 592 SHED = 85 CONC. SHED = 8 FRONT SIDEWALK = 63 FRONT PAVERS = 28 REAR SIDEWALK =1 55 SIDE SIDEWALK = 111 TOTAL = 2,962 SQ.FT. 33% COVERAGE AREA: 0U 853.0 FLOOR ELEV = 854.9 (:Q BITUMINOUS DRIVEWAY 853.4 \ \ \ 83 6\ 83 53.8 6 53.3 r�° 852.6 C 852.7 \ CONCRETE Si J DRIVEWAY X 853.1 853.0 TOTAL AREA OF LOT = 8,949 SQ.FT. G EXISTING LEGAL DESCRIPTION (as provided by the owner) The west 60.00 feet of the Northwest Quarter of Block 38, CITY OF STILLWATER, on file and of record in the office of the County Recorder, Washington County, Minnesota. C, CERTIFICATION: I hereby certify that this survey, plan or report was prepared by me or under my direct supervision and that I am a duly licensed Land Surveyor under the laws of the - e of Minnesota. \ DANIEL L. - IR ES License. No. 2 5718 ate 5 -29 -09 60.91* C, NOTES: \ \ 1. UNDERGROUND UTILITIES NOT LOCATED OR SHOWN 2. EASEMENTS, IF ANY, MAY EXIST. THERE WAS NO EFFORT MADE TO RESEARCH RECORDED OR UNRECORDED EASEMENTS. 3. BEARINGS SHOWN ARE ASSUMED. 4. THE EXISTING LEGAL DESCRIPTION WAS PROVIDED BY THE OWNER. THERE WAS NO EFFORT MADE TO RESEARCH OR SURVEY THE ADJOINING PROPERTIES FOR GAPS AND OVERLAPS. 5® ou- 0 511 GAS VALVE OVERHEAD WIRES WELL MANHOLE CULVERT GAS METER FENCE CONCRETE .0u „w a1 X 847.5 848 C-84 FOUND 1 /2" IRON PIPE 0.6l, NELY OF PARCEL CORNER r, / \ , / i /\ /\ /-< / / / / K < ?� L / L _ \ / ' / / 5 5 / \/ CATCH BASIN HYDRANT SIGN WATER VALVE UTILITY POLE LIGHT POLE TELE /ELEC BOX • DENOTES FOUND IRON MONUMENT O DENOTES 1/2" X 18" IRON PIPE SET AND MARKED BY 25718 Suite #B100 200 East Chestnut Street Stillwater, MN 55082 Phone 651.275.8969 Fax 651.275.8976 dan@ cssurvey .net CORNERSTONE LAND SURVEYING, INC EII IM.EM�� I�.�JIE�EM PROPOSED GARAGE (574 SF) E lIiiI1I EXISTING HOUSE (1018 SF) => REAR SIDEWALK (319 SF) m� IIul.MAI_ • FACE OF GARAGE WITH FACE OF EXISTI G PORCH SOUTH FIFTH STREET 04STING 9DEWALK KEYED PLAN NOTES Ot EXISTING ASPHALT DRIVEWAY PAVING SHALL BE REMOVED AND REPLACED WITH NEW PERVIOUS PAVER SYSTEM. D2 REAR YARD SIDEWALKS SHALL BE CONSTRUCTED WITH PERVIOUS PAVER SYSTEM, => 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 0 250 2,237 SF ACTUAL BUILDING IMPERVIOUS AREA 2,313 SF EXISTING HOUSE 1,018 SF REAR ADDITION 5D5 SF FRONT PORCH ADDITION 128 SF WEST SIDE PORCH ADDITION 88 SF GARAGE 574 SF PERCENTAGE BUILDING IMPERVIOUS AREA 2313/8949 = 25.850 ALLOWABLE SITE IMPERVIOUS AREA 0 250 2,237 SF ACTUAL SITE IMPERVIOUS AREA 899 SF DRIVEWAY 488 SF REAR SIDEWALK 319 SF FRONT STEPS /SIDEWALK 51 SF PERCENTAGE SITE IMPERVIOUS AREA 868/8949 =9.700 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 CONSULTANTS: Associates 807 North 4th Street Stillwater, MN 55082 Tel 651 A30.2139 Fax 851430.2139 lounlasdanksia)Ilscnr] net THIS ORIGINAL COPYRIGHTED DOCUMENT MAY NOT 8E COPIED, REPRODUCED OR ALTERED IN WHOLE OR IN PART, NOR USED FOR PROJECTS OTHER THAN THE PROJECT AT THE LOCATION IDENTIFIED ABOVE WITHOUT WRITTEN AUTHORIZATION FROM DOUGLAS DARNS ASSOCITES. DOUGLAS DARNS ASSOCLATES RETAINS THE SOLE INTELLECTUAL PROPERTY RIGHTS 908 THE DESIGN DEPICTED IN 11115 DOCUMENT. REV DESCRIPTION DATE 81D PACKAGE 80/0X/10 SCHEMATIC DESIGN SITE PLAN DATE: SCALE: PROJECT: 08/31/10 1/16 " =1'-0" 073 101 DRAWN: DDA 22' -8" I 1 1 1 1 1 1 1 1 1 1 1 1 1 L ll uwIE 0 MAIN LEVEL FLOOR PLAN r 1 L J 1 1 I L J rr LL J vseTA Van Horne Detached Garage 223 Pine Street West Stillwater, MN 55082 OWNEWCLIENT: Rick and Suzanne Van Horne 223 Pine Street West Stillwater, MN 55082 612.865.7425 CONSULTANTS: Associates 807 North 4th Street Stillwater, MN 55082 Tel 651.4302139 Fax 651.430.2139 doo.gtasdankstmuscoro net THIS ORIGIWL COPYRIGHTED DOCUMENT MAY NOT BE COPIED, REPRODUCED 09 ALTERED IN WHOLE OR IN PART, NOR USED FOR PROJECTS OTHER THAN THE PROJECT AT THE LOCATION IDENTIFIED ABOVE WITHOUT WRIREN AUTHORIZATION FROM DOUGLAS DAMNS ASSOCIATES. DOUGLAS OWNS ASSOCATES RETAINS THE SOLE INTELLECTUAL PROPERTY RIGHTS FOR THE DESIGN DEPICTED IN THIS DOCUMENT. REV DESCRIPTION DATE BID PACKAGE XX/XX /10 SCHEMATIC DESIGN F❑❑TING/ F❑UNDATI ❑N PLAN & FLOOR PLANS DATE: 08/31/10 SCALE: 1/4"=1'-0'' PROJECT: 073 101 DRAWN: DDA UNDERSIDE COLLAR TIE EL. +116' -11 3/8" 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.0. PLATE EL +109' -0" L_J I9 L L WEST ELEVATION EO m L • T.O. FOUNDATION EL. +96' -8" L EAST ELEVATION J UNDERSIDE COLLAR TIE EL +116' -11 3/8" N3 EATHI T.O. S T. +EATHI 3/4" T.O. PLATE EL. +109' -0" 0 T.O. SLAB EL. +100' -0" T.O. FOUNDATION EL. +96' -8" UNDERSIDE COLLAR TIE EL. +116' -11 3/8" SHEATHING 'I` T.O. T.O +HEATHI 3/4" �J T.O. PLATE EL +109' -0" T.O. FOUNDATION EL. +96' -8" rL —I� L SOUTH ELEVATION J r'— L ----------- -------------- --------- NORTH ELEVATION 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 CONSULTANTS: Associates 807 Nonn 4th Street Stillwater, MN 55082 Tel 551.430.2139 Fax 651 430.2139 douglasdankst5uscoro net THIS ORIGINAL COPYRIGHTED DOCUMENT MAY NOT 8E COPIED. REPRODUCED OR ALTERED IN WHOLE OR IN PART. NOR USED FOR PROJECTS OTHER THAN THE PROJECT AT THE LOCATION 10ENT+00 ABOVE WITTTOUT WRITTEN AUTHORIZATFON FROM DOUGLAS DANAS ASSOCIATES. DOUClAB DANKS ASSOCIATES RETAINS THE SOLE INTELLECTUAL PROPERTY RIGHTS FOR THE DESIGN DEPICTED IN THIS DOCUMENT. REV BID PACKAGE DESCRIPTION I Imo„ DATE RX/JOX_ SCHEMATIC DESIGN DATE: EXTERIOR ELEVATIONS 08/31/10 SCALE: 1/4"-V-0" PROJECT: 073 101 DRAWN: DDA IM r'— L ----------- -------------- --------- NORTH ELEVATION 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 CONSULTANTS: Associates 807 Nonn 4th Street Stillwater, MN 55082 Tel 551.430.2139 Fax 651 430.2139 douglasdankst5uscoro net THIS ORIGINAL COPYRIGHTED DOCUMENT MAY NOT 8E COPIED. REPRODUCED OR ALTERED IN WHOLE OR IN PART. NOR USED FOR PROJECTS OTHER THAN THE PROJECT AT THE LOCATION 10ENT+00 ABOVE WITTTOUT WRITTEN AUTHORIZATFON FROM DOUGLAS DANAS ASSOCIATES. DOUClAB DANKS ASSOCIATES RETAINS THE SOLE INTELLECTUAL PROPERTY RIGHTS FOR THE DESIGN DEPICTED IN THIS DOCUMENT. REV BID PACKAGE DESCRIPTION I Imo„ DATE RX/JOX_ SCHEMATIC DESIGN DATE: EXTERIOR ELEVATIONS 08/31/10 SCALE: 1/4"-V-0" PROJECT: 073 101 DRAWN: DDA f Planning Commission DATE: September 8, 2011 APPLICANT: City of Stillwater CASE NO.: 11 -24 REQUEST: Revisions to City Code Chapter 34 "Building Demolition" CPC PUBLIC HEARING DATE: September 12, 2011 REVIEWED BY: Community Development Director PREPARED BY: Michel Pogge, City Planne BACKGROUND Currently, before a structure over 50 years of age is demolished, a public hearing before the Heritage Preservation Commission is required unless the structure is an immediate life safety hazard. Applicants are required to complete what is known as the "nine steps" before the HPC will approve a permit. Once the nine steps are completed, the HPC is required to approve the demolition permit unless the structure proposed to be demolished is on the National Register of Historic Places (currently 8 residential structures and 64 commercial building in the downtown area are on the NRHP) or are locally designated (currently no structure in the City is locally designated). Due to the rather relaxed requirements of the current ordinance, important structures could be demolished and are not protected. For example, homes like the Alexander and Ida Nelson house on top of Chestnut Street stairs; the John and Anna O'Brien house, now home to Rivertown Inn; and Adolphus and Aurora Hospes House, now home to Aurora Staples Bed and Breakfast, all fall outside of any real protection that the City's demolition review ordinance provides. On the other hand, currently all structures over 50 years of age that are proposed to be demolished require a public hearing before the HPC. Even those that clearly have no historic integrity. A change should be made to allow staff to initially review demolition requests so that staff could approve the demolition of buildings that do not have historic value or integrity. For example, a 1950's block garage on a property with an 1800's home would be an instance where staff could approve the permit. Finally, the ordinance fails to clearly define, what constitutes a partial demolition. Demolition Ordinance Amendment Page 2 Staff has researched demolition ordinances from 37 HPC's around the State of Minnesota. Two ordinances worthy of consideration are from Chaska and Minneapolis. In Minneapolis, staff conducts an initial review to determine if a structure is potentially historic and if not, staff administratively approves the demolition request. This would expedite clear -cut cases and allow them to be quickly approved. Other more significant structures would continue to be reviewed by the HPC. Both Chaska and Minneapolis have a provision that allows their HPC's to impose a 180 -day waiting period. This approach of requiring a waiting period is also very common throughout the nation when it comes to demolition reviews and allows the community time to search for an alternative to demolition. The Minneapolis ordinance takes it one step further and allows the Minneapolis HPC the opportunity to consider locally designating the property during the waiting period, and if approved by the HPC and City Council, the demolition of the property could be blocked. While rarely applied, it provides a relief valve of sorts, which also requires City Council approval to ensure that properties are not locally designated without just cause. The Heritage Preservation Commission has been discussing the possibility of revising the current ordinance over the past year and a half. The attached proposal represents the HPC's proposal based on this work. SPECIFIC REQUEST Consider an amendment to the City's Building Demolition Ordinance. WHY IS THE PLANNING COMMISSION REQUIRED TO REVIEW THIS ORDINANCE Under State Statue, the HPC is technically an arm of City Zoning. As such, any new zoning ordinance is required to be reviewed by the Planning Commission before it is adopted by the City Council. ORDINANCE NO. AN ORDINANCE AMENDING THE STILLWATER CITY CODE CHAPTER 34, ENTITLED BUILDING DEMOLITION THE CITY COUNCIL OF THE CITY OF STILLWATER DOES ORDAIN: 1. Amending. City Code Chapter 34 replaced with the following: Chapter 34 BUILDING DEMOLITION Sec. 34 -1. Purpose of chapter. This chapter is adopted for the purpose of protecting the historic and aesthetic qualities of the city by preserving, rehabilitating or restoring, when reasonable, buildings or structures which constitute or reflect distinctive features of the architectural or historical resources of the city, thereby promoting the public welfare and preserving the cultural heritage of the city. Sec. 34 -2. Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this subdivision, except where the context clearly indicates a different meaning: Building or structure ofpotential historic significance means a building or structure or portion of a building or structure 50 years of age or older. Commission means the heritage preservation commission. Community Development Director means the Stillwater Community Development Director or his or her designee. Demolition means one of the following: (1) Razing a building. (2) Removal of fifty (50) percent or more of the structure. (3) Removal of more than twenty (20) percent of the exterior front facade of a structure. (4) Removal of more than forty (40) percent of the total exterior side and rear facades of a structure. (5) Removal of any part of a roof for the purpose of expanding the living space. (6) Demolition by neglect. A demolition shall not mean any of the following: (1) A structure required to be demolished in accordance with Minn. Stats. ch. 463. (2) Destruction by fire that has been determined to be a total loss by the Community Development Director. However, a fire that is caused by arson and was proven to be started by an act of the owner or the owner's agent shall be considered a demolition. (3) Destruction by a natural disaster or other similar event and which has been determined to be a total loss by the Community Development Director. Historic Resource means any building or structure that is not currently designated as a Heritage Preservation Site but which is worthy of such designation because of its historical, cultural, architectural, archaeological or engineering significance for one of the following reasons: (1) The property is associated with significant events or with periods that exemplify broad patterns of cultural, political, economic or social history. (2) The property is associated with the lives of significant persons or groups. (3) The property contains or is associated with distinctive elements of city or neighborhood identity. (4) The property embodies the distinctive characteristics of an architectural or engineering type or style, or method of construction. (5) The property exemplifies a landscape design or development pattern distinguished by innovation, rarity, uniqueness or quality of design or detail. (6) The property exemplifies works of master builders, engineers, designers, artists, craftsmen or architects. (7) The property has yielded, or may be likely to yield, information important in prehistory or history. Historically significant building or structure means any building or structure or portion of a building or structure on the National Historic Register, a designated local heritage preservation site or a contributing structure or building in a designated national register historic district. Nonhistoric structure or building means a structure or building less than 50 years old or a noncontributing structure in a nationally or locally designated historic district. Sec. 34 -3. Permit required. No building or structure may be demolished without obtaining a demolition permit. An application for a demolition permit must be filed with the city building official. Sec. 34 -4. Procedure. The building official must forward a copy of each demolition permit application to the community development director. Subd 1. Community Development Director Review. The community development director shall review the permit, make one of the following determinations, and take the associated action: (1) The building or structure is historically significant. If the building or structure is found to be historically significant, then the application will be sent to the commission for review according to Section 34 -4, Subd. 2. (2) The building or structure is a historic resource. If a building or structure is potentially historic due to is age of 50 years or more, and it is determined to be a historic resource, then the application will be sent to the commission for review according to Section 34 -4, Subd 2. (3) The building or structure is potentially historic but not a historic resource. If a building or structure is found to be potentially historic, but it is determined that it does not meet the definition of a historic resource, then the application for a demolition permit will be referred to the building official for issuance of a demolition permit. (4) The building or structure is Nonhistoric. If a building or structure is nonhistoric, then the application for a demolition permit will be referred to the building official for issuance of a demolition permit. Subd.2. Heritage Preservation Commission Review. If the community development director determines that a building or structure is historically significant or a historic resource, then the commission must review the demolition request to determine whether a demolition permit may be issued. (1). Required demolition permit application materials. An application form and 15 copies for commission review must be submitted to the city in order to place the demolition request on a commission agenda for consideration. The demolition permit application must include the following information: (a) A map showing the location of the building or structure to be demolished on its property and with reference to neighborhood properties; (b) A legal description of property and owner of record; (c) Photographs of all building elevations; (d) A description of the building or structure or portion of building or structure to be demolished; (e) The reason for the proposed demolition and data supporting the reason, including, where applicable, data sufficient to establish any economic justification for demolition; (f) Proposed plans and schedule for reuse of the property on which the building or structure to be demolished is located; (g) Relation of demolition and future site use to the comprehensive plan and zoning requirements; (h) A description of alternatives to the demolition; and (i) Evidence that the building or structure has been advertised for sale for restoration or reuse and that sale for restoration or reuse is not economically feasible. (2). Public hearing. The commission must hold a public hearing according to chapter 31- 204, subdivision 3 of this Code. The commission will conduct the public hearing, review the demolition request, and decide upon one of the following courses of action: (a) For a historically significant building or structure (i) No feasible alternative to demolition. If the commission determines that the owner has made a reasonable effort to sell or preserve the structure and after finding that there is no available feasible alternative to demolition, the commission must notify the building official in writing that a demolition permit may be issued. (ii) Feasible alternative to demolition. If the commission determines that there is a feasible alternative to demolition, the permit must be denied. (b) For a historic resource (i)Negative finding. If the commission finds that the property is not a historic resource, then the commission shall notify the building official that a demolition permit shall be issued, as provided in subdivision 3 below. (ii) Positive finding with no feasible alternative to demolition. If the commission finds that the property is historically significant or a historic resource, but that there is no feasible alternative to demolition, then the commission shall notify the building official that a demolition permit shall be issued, as provided in subdivision 3 below. (iii) Positive finding with feasible alternative to demolition. If the commission finds that the property is historically significant or a historic resource, and that there is a feasible alternative to demolition, then the commission shall deny the demolition permit and direct the community development director to prepare a designation study of the property, as provided in section 22 -7, subdivision 4. (1) Failure to designate property. If the city council does not approve the preparation of the designation study within 30 days of the commission determination, or if the completed designation study is not approved within 180 days of the commission determination, or if the city council denies implementation of the designation after completion of the designation study, then the building official shall issue the demolition permit. (3). Commission findings and conditions. While reviewing the demolition permit request, the commission shall consider the following findings and conditions: (a) Destruction of historic resource. Before approving the demolition of a property determined to be an historic resource, the commission shall make findings that the demolition is necessary to correct an unsafe or dangerous condition on the property, or that there are no reasonable alternatives to the demolition. In determining whether reasonable alternatives exist, the commission shall consider, but not be limited to, the significance of the property, the integrity of the property and the economic value or usefulness of the existing structure, including its current use, costs of renovation and feasible alternative uses. The commission may delay a final decision for up to one hundred eighty (180) days to allow parties interested in preserving the historic resource a reasonable opportunity to act to protect it. (b) Mitigation plan. The commission may require a mitigation plan as a condition of any approval for demolition of an historic resource. Such plan may include the documentation of the property by measured drawings, photographic recording, historical research or other means appropriate to the significance of the property. Such plan also may include the salvage and preservation of specified building materials, architectural details, ornaments, fixtures and similar items for use in restoration elsewhere. (c) Demolition delay. The commission may stay the release of the building, wrecking or demolition permit for up to one hundred eighty (180) days as a condition of approval for a demolition of an historic resource if the resource has been found to contribute to a potential historic district to allow parties interested in preserving the historic resource a reasonable opportunity to act to protect it. The release of the permit may be allowed for emergency exception as required in section 34 -7. Sec. 34 -5. Emergency demolition. If a historically significant or other significant building or structure poses an immediate threat to health or safety due to its deteriorated condition, the owner of the building or structure may request issuance of an emergency demolition permit. If both the community development director and building official find that the condition of the building or structure poses a serious and imminent threat to public health and safety and that there is no reasonable alternative to the immediate demolition, the community development director and building official may issue an emergency demolition permit. Sec. 34 -6. Injunction. In addition to any other relief provided by this chapter, the city attorney may apply to a court of competent jurisdiction for an injunction to prohibit the continuation of any violation of this chapter. This application for relief may include seeking a temporary restraining order, temporary injunction and permanent injunction. Sec. 34 -7. Violation of chapter. Any person violating any provision of this chapter shall be guilty of a misdemeanor, and a separate offense shall be deemed committed on each day during on which a violation occurs or continues. 2. Savings. In all other ways City Code Chapter 31 shall remain in full force and effect. 3. Effective Date. This Ordinance will be in full force and effect from and after its passage and publication according to law. Enacted by the City Council of the City of Stillwater this day of , 2011. CITY OF STILLWATER Ken Harycki, Mayor ATTEST: Diane Ward, City Clerk pater. THE SttiTHPLACE OF MINNESOTA PLANNING REPORT DATE: September 8, 2011 APPLICANT: City of Stillwater Planning Commission REQUEST: Seasonal Outdoor Sales and Vending PREPARED BY: Bill Turnblad, Community Development Director BACKGROUND Planning Commissioners have over the years been dissatisfied with the City Zoning Ordinance requirement that vendors and seasonal outdoor sales have a Special Use Permit (SUP). By the very nature of these uses, the operators are not tied to the property for which the SUP is issued. They are more similar to transient merchants than they are to commercial uses for which Special Use Permits are issued. In response, the Planning Commission asked City staff to research a more fitting way to permit these uses. At the August 9, 2010 Planning Commission meeting, staff presented several options. The Commission discussed the options and worked through a first and second draft of an ordinance that creates an annual permitting process for seasonal outdoor sales and vending. The permit for the businesses would be approved by the Planning Commission for the first year. That initial permit would expire on December 31st. For each subsequent year (without substantial changes), the permit would be reviewed and issued by City staff. In August of 2011 the Commission opened a public hearing on the 2nd draft of the ordinance. In response to an article in one of the Twin Cities newspapers, the hearing was tabled until September and staff was asked to investigate noise related to the generators that some food vending trucks use. DISCUSSION Though the reporter for the above referenced newspaper article suggested that generator noise is a concern, it is apparently not a large enough concern to have been addressed by many communities in the Twin Cities area. Staff did not find much in -state information. However, the City of Asheville, NC has been engaging the question. In an email exchange with their Assistant Planning Director, staff learned that in Asheville the following regulations are being considered: Seasonal Outdoor Sales & Vending Page 2 of 2 1. Electrical power provided to food vendors by connection to permanent electrical outlets is preferred over the use of generators. 2. If electrical generators are used within 100 feet of a residential unit, they are limited to inverter technology "whisper" generators (max of 50 decibels) 3. If electrical generators are used further than 100 feet from a residential unit, they are allowed to create a maximum of 65 decibels of noise. 4. No generator may be used between 12 midnight and 6 in the morning within 200 feet of a residential unit. No generator may be used anywhere downtown between the hours of 3 AM and 6 AM. In addition, the Asheville nuisance ordinance states that "noise disturbance" is prohibited. Noise disturbance is defined in part as "disturbs a reasonable person of normal sensitivity ". Stillwater's nuisance ordinance is similar. And though it is a challenge to know what a "reasonable person of normal sensitivity" is, the provision does give Ashville the flexibility to deal with situations where 65 or even 50 decibel generators are just too loud. If the Planning Commission feels that generator noise is a potential problem in Downtown Stillwater, any or all of the Asheville regulations could be included in the Stillwater ordinance. Though, modification of some of them may be advisable. These regulations could be added to the section on utility plans for vendors. It should be noted that the same regulations will not apply to vendors associated with special events, since they operate under a special event permit not a vendor permit as regulated by this proposed ordinance. RECOMMENDATION Discuss the 3rd draft of the proposed ordinance, as well as potential generator noise regulations, and make a recommendation to the City Council. Attachment: Ordinance, 3rd Draft bt 0 DRAFT 3 ORDINANCE NO. AN ORDINANCE AMENDING THE STILLWATER CITY CODE CHAPTER 41, ENTITLED LICENSES, PERMITS AND PROHIBITIONS BY ADDING STANDARDS FOR CERTAIN SEASONAL OUTDOOR SALES THE CITY COUNCIL OF THE CITY OF STILLWATER DOES ORDAIN: 1. Add. City Code Chapter 41, is amended by adding Section 41 -6, Subd 1 as follows: Subd. 1. Seasonal Outdoor Sales. Seasonal Outdoor Sales may be allowed as an accessory use within the CA and BP -C Zoning Districts, subject to the requirements of this subdivision. For purposes of this subdivision, "Seasonal Outdoor Sales" is defined to include the promotion and sale of goods and/or services, including but not limited to plants, vegetation, landscaping materials, lawn care items, fireworks. Seasonal Garden Centers, a type of Seasonal Outdoor Sales, will be permitted for a maximum period of 90 days, and all Seasonal Garden Centers permitted under this subdivision must cease operation on or before June-30 July 15_each year. Seasonal Fireworks Sales, another type of Seasonal Outdoor Sales, will be permitted for a maximum of three weeks each year and must cease operation no later than July 6. The annual Seasonal Outdoor Sales permit may be approved by the City subject to the following. (1) A completed permit application form must be submitted annually (including permit fee) to the Community Development Depat liuent. The completed application must be submitted at least 60 days prior to the proposed opening date of the Seasonal Outdoor Sales business. To be considered complete, the application must include the completed application form plus the following additional information. (a) Address of property. (b) Site plan detailing at least the following: (i) Size of the area being occupied by the Seasonal Outdoor Sales operation. (ii) Method of containing operations. Indicate materials and design of the proposed tent or temporary structure, any fencing on the site, and trash containment systems. (iii) Pedestrian and traffic control safety measures. The sales area may not impede pedestrian or vehicular circulation patterns on the site. (iv) Parking stalls. Number of parking stalls being used by the entire Seasonal Outdoor Sales operation must be indicated. The site plan must also include a note describing the number of parking spaces that will remain available to the primary use of the property. Sufficient parking must be available to support oar DRAFT 3 Page 2 of 5 both the accessory Seasonal Outdoor Sales operation and the primary commercial use of the property. (c) Utility plan. Indicate how water and electricity will be provided to the site. (d) Signage Plan. The annual permit application must include details of all proposed signage. A drawing for each proposed sign shall be submitted. The drawing shall show dimensions and describe materials, lettering, colors, illumination and support systems. The proposed signage shall be reviewed against the following standards. 1. The total number of signs associated with a Seasonal Outdoor Sales operation is limited to three. 2. All signage for the Seasonal Outdoor Sales operation must be contained on the subject property. 3. Signage may not be located within public right -of -ways. 4. Each free standing sign is limited to a surface area of two feet by three feet (six square feet total). 5. One Up totwg. banners ismaybe permitted. ItThey may only be attached to the tent or temporary structure used for the Seasonal Outdoor Sales operation. 6. One sign may be painted or affixed directly to the tent or temporary structure used for the Seasonal Outdoor Sales operation. 7. The size and height of the banner and affixed signs are limited to that which is allowed in the BP, Business Park Districts as regulated in City Code Ch. 31, Sec. 31 -509, Subd. 8(a)(1) and (3)'. 8. No sign may be erected or installed prior to erection of the Seasonal Outdoor Sales tent or temporary structure. 9. All signs must be removed from the property concurrently with removal of the Seasonal Outdoor Sales operation. (e) Signed agreement from the property owner permitting the proposed Seasonal Open Sales. (f) Narrative explaining details including: 1) dates and hours of operation, 2) merchandise or service being offered for sale, and 3) contact information for the landowner, the applicant, and the manager of the Seasonal Outdoor Sales operation. (2) The annual permit for the first year of operation shall be reviewed by the Planning Commission. The first year permit shall be valid through December 31 of the year. (3) The annual permit for subsequent years of operation shall be reviewed by Community Development Department staff, unless there are substantial changes to the site plan or operations plan, or unless there are substantiated complaints of a Public Safety nature. If there are such substantial changes or 1 Size. The gross surface area of a tent wall sign may not exceed one square foot for each foot of tent wall parallel or substantially parallel to the front lot line. Height — a tent wall sign may not project higher than the parapet line of the tent wall to which the sign is affixed or 20 feet as measured from the base of the tent wall to which the sign is affixed, whichever is less. DRAFT 3 Page 3 of 5 complaints, the Planning Commission must review the annual permit application for that year. (4) An inspection by the Fire Marshal will be required prior to the Seasonal Outdoor Sales operation opening for business. (5) Seasonal Outdoor Sales are only allowed on private property. No Seasonal Outdoor Sales are permitted on public property or public right -of -ways. 2. Add. City Code Chapter 41, is amended by adding Section 41 -6, Subd. 2 as follows: Subd. 2. Seasonal Food Vending. Seasonal Food Vending is allowed by annual permit only on private property as an accessory use within the CBD Zoning District, subject to the requirements of this subdivision. For purposes of this subdivision, "Seasonal Food Vending" does not include food vending for events. Event food vending requires an event permit pursuant to City Resolution No. 2010- 204 and any subsequent revisions to that resolution. The annual permit for a Seasonal Food Vending cart or vehicle may be approved by the City subject to the following. (1) A completed permit application form must be submitted annually (including permit fee) to the Community Development Department. The completed application must be submitted at least 60 days prior to the first seasonal usage of the cart or vehicle. To be considered complete, the application must include the completed application form, permit fee, and the following additional information. (a) Address of the private property upon which the cart or vehicle will operate. (b) Site and operations plans detailing at least the following: 1. Size and location of the area being occupied by the Seasonal Food Vending operation. 2. Picture and dimensions of vehicle or cart. 3. Location of exits from principal building on the property. The vending equipment and operation must not block the exits. 4. Storage location for vehicle or cart when not open for business. 5. Method of containing trash. 6. Pedestrian and traffic control safety measures. The sales area may not impede pedestrian or vehicular circulation patterns on or around the site. 7. Parking stalls. If parking stalls are being used by the vending operation, this must be indicated on the site plan. The total number of parking spaces required of the principal use of the private property shall not be reduced below the minimum number required by ordinance DRAFT 3 Page 4 of 5 8. Miscellaneous operation details including: a) dates and hours of operation, b) merchandise or service being offered for sale, and c) contact information for the landowner, the applicant, and the manager of the Seasonal Vending operation. (c) Utility plan. Indicate how utilities will be provided to the operation. (d) Signage Plan. The annual permit application must include details of all proposed signage. A drawing for each proposed sign shall be submitted. The drawing shall show dimensions and describe materials, lettering, colors, illumination and support systems. The proposed signage shall be reviewed against the following standards. 10. The total number of signs associated with a Seasonal Vending operation is limited to two. 11. All signage for the Seasonal Vending operation must be contained on the subject private property. 12. One sandwich board type sign may be permitted if it satisfies the standards found in Resolution No. 2009 -xxx and any subsequent revisions to that resolution. 13. One sign may be painted or affixed directly to the vehicle or cart. 14. No sign associated with the Seasonal Vending operation is allowed to be on the subject property when the cart or vehicle is not present. (e) Signed agreement from the property owner allowing the proposed Seasonal Vending operation. (2) Submittal of a satisfactory inspection report of the proposed cart or vehicle from the Stillwater Fire Department. (3) Submittal of a permit issued for the cart or vehicle by Washington County health officials. (4) The annual permit for the first year of operation shall be reviewed by the Planning Commission. The first year permit shall be valid through December 31 of the year. (5) The annual permit for subsequent years of operation shall be reviewed by Community Development Department staff, unless there are substantial changes to the site plan or operations plan, or unless there are substantiated complaints of a Public Safety or Public Health nature. If there are such substantial changes or complaints, the Planning Commission must review the annual permit application for that year. (6) Seasonal Food Vending is only allowed on private property. No Seasonal Food Vending permits will be issued for operation on public property or public right -of -ways. (7) For public safety reasons, all Seasonal Food Vending operations must close by 2:30 am each day. Also, if during large events it is determined by the Chief of Police that downtown crowd control is necessary, Seasonal Food Vending businesses may be required to close earlier than 2:30 am during that event. 3. Savings. In all other ways City Code Chapter 41 will remain in full force and DRAFT 3 Page 5 of 5 effect. 4. Effective Date. This Ordinance will be in full force and effect from and after its passage and publication according to law. Enacted by the City Council of the City of Stillwater this day of 2011. CITY OF STILLWATER Ken Harycki, Mayor ATTEST: Diane Ward, City Clerk