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HomeMy WebLinkAbout2011-08-08 CPC MINCITY 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. 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 located 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 corner 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