HomeMy WebLinkAbout1981 01-15 PCP PLANNING COMMISSION AGENDA
REGULAR SESSION
January 15, 1981
1 . Cali to Order 1980 Planning Commission: 7:30 p.m.
2. Roll Call , 1980 Planning Commission-
• 3. Approval of Minutes: December 11 , 1980
4. Adjourn 1980 Planning Commission
5. Administer Oath of Office
6. Call to Order 1981 Planning Commission
7. Roll Call , 1981 Planning Commission
8. Election of 1981 Planning Commission Chairman
9. Election of 1981 Planning Commission Chairman Pro Tem
10. Chairman's Explanation: The Planning Commission is an advisory body. One
of the Commission's functions is to hold public
hearings. In the matters concerned in these
hearings, the Commission makes recommendations to
the City Council. The City Council makes all final
decisions in these matters.
11 . Federal Lumber 81001
Request for site and building plan approval to
construct a 49,056 gross sq. ft. office-warehouse
and three accessory open storage sheds at 4810 N.
Lilac Drive.
12. Federal Lumber 81002
Request for preliminary plat approval to combine
.into one parcel all of the land occupied by the
Federal Lumber operation. Redefinition of N. Lilac
Drive right-of-way is involved.
13. Meriwether Restaurants, Inc. 81003
Request for site and building plan approval to
construct a 238 seat restaurant on the parcel of
land; located at the southwest corner of Shingle
Creek Parkway and Freeway Boulevard. .
14. Meriwether Restaurants, Inc. 81004
Request for preliminary R.L.S. approval establishing
new boundaries for the parcel of land at the southwest
corner of Shingle Creek Parkway and Freeway Boulevard
after the highway taking.
15. Lisa Rogers Carter 81005
Request for a special use permit to conduct a home
occupation in the basement of the residence at 5308
Humboldt Avenue North.
16. Ryan Oldsmobile 81006
Request for site and building plan and special use
permit approval to construct a used car sales office
and a Mazda sales office connected to the existing
sales building by a canopy, at 6700 Brooklyn Boulevard.
17. Ryan Constuction/Byerly's Foods - 81007
Request for site and building plan approval to
construct a 90,000 sq. ft. food store with a 200
' seat restaurant at 6100 Shingle Creek Parkway.
18.. Ryan Construction/Byerly's Foods 81008
Request for preliminary R.L.S. .approval to combine
into two parcels the land west and north of LaBelle`s,
north of John Martin Drive, east of Shingle Creek
p Parkway and south of Summit Drive.
BOARD OF ADJUSTMENT AND APPEALS
19. Thomas Wilhelmy 81009
Appeal from the decision of the Director of Planning
and Inspections not to accept an application for
special use permit to construct a convenience store/
gas station at the northeast corner of 69th and Brooklyn
Boulevard. The property ,in question abuts Rl zoned land
at a property line and across. June Avenue North,
conditions which prohibit a gas station use on C2
zoned property.
= � 20. Other Business
21 . Discussion Items
22. Adjournment
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Planning Commission Information Sheet
Application No. 81001
Applicant: Federal Lumber
e Location: 4810 N. Lilac Drive
Request: Site and Building Plan
The applicant requests site and building plan approval for-the construction of
.a 49,056 sq. ft. office-warehouse building and two open storage sheds on the
property at 4810 N. Lilac Drive. The land in question is zoned I-2 and is
bounded by other industrial uses on the south and east, by the Soo Line tracks -
on the north, and by North Lilac Drive and Highway 100 on the west. Federal
Lumber is a permitted use in the I-2 zone and has been operating at the site
out of temporary trailer-offices since the fire on August 16, 1980 which
destroyed a major portion of the complex.
The proposed site plan meets ordinance requirements for setbacks, parking and
greenstrips. However, setbacks are now calculated from the Highway.,100 right-
of-way rather than N. Lilac Drive. City staff recommend that concurrent with
the approval of this plan North Lilac Drive be vacated north of a point roughly
90' northeast of the southwest property corner. A new right-of-way dedication
will be made through the proposed R.L.S. (See Application No. 81002) which will
provide land for a potential cul-de-sac. The cul-de-sac will only be constructed
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i f a when and he the State terminates its agreement with. Federal Lumber to use Highway
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100 right-of-way for parking purposes. That parking area presently within the
Highway 100 right-of-way will be used by City maintenance. vehicles to turn around
and an easement for those purposes will ' be filed with new R.L.S. .
• The proposed plan provides for 72 parking spaces, 50 spaces within the Highway
100 right-of-way and 22 spaces within the property to be the Federal Lumber site.
The building uses on the site include 18,200 sq. ft. of office space on three
floors at the west end of the main building; 30.,856 sq. ft. of warehouse storage
space in the remainder of the main building; roughly 5,600 sq. ft. of new'open
storage sheds; and approximately 13,000 sq. ft. of space within existing semi-
open storage buildings on the site. The parking requirement for these buildings
equals (18,200 - 200) + (49,456 ; 800) = 91 + 62 = 153. The proposed plan shows
proof-of-parking for only 83 stalls in addition to the 22 actually on the Federal
Lumber site. However, there is substantial excess land on the site to meet
parking requirements should the need arise. The major concern of staff is that
Federal Lumber be able to satisfy its parking needs should the State terminate
the parking arrangement within the Highway 100 right-of-way.
The exterior of the building' is proposed as rock face, light weight, concrete
block. The applicant has considered carrying this treatment over to the westerly
wall of the proposed open storage shed north of the main building with the option
of a canopy of like treatment connecting the two structures. This concept, how-
ever, would be extremely costly. in light of the use of the sheds. A metal or
noncombustible wood exterior for the sheds is , therefore, more likely. The
applicant has agreed to fire sprinkle all of the main building. He does not
see a benefit to justify sprinkling the open sheds. The Building Official has
suggested that the main shed by divided by a one-hour rated fire wall , thus
establishing two buildings, each under 2,000 sq. ft. in area. The primary
concern of the Fire Chief has been that the trusses be of either masonry
material or noncombustible wood, but not steel beams which buckle quickly under
extreme heat.
1-15-81 -1-
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Application No. 81001 continued
The applicant intends to complete the blacktop surfacing of the entire lumber
yard area. There is no public storm sewer to serve this site and, therefore,
no drainage controls are being sought by the Engineering Department at this
time. Runoff generally moves toward the northeast and southeast corners of the
site and also to an area along the south property line at the intersection with
a City utility easement which runs roughly through the center of the site.
Concrete curbing will be provided around all parking and driving areas on the
western edge of the site.
New landscaping for the site is concentrated along the west side of the new
buildings and includes three Red Splendor Crab, Skyline Locust, Mugho Pine, and
Juniper ground cover. The Planning Commission may wish to pursue the question
of landscaping further as no schedule of sizes and quantities of plantings has
yet been submitted.
With a few additions and corrections, the plans are generally in order and
approval is recommended subject to at least the following conditions:
1 . Building plans are subject to review and approval by the Building
Official with respect to applicable codes prior to the issuance
of permits.
2. Grading, drainage, utility and berming plans are subject to
review and approval by the City Engineer prior to the issuance
of permits.
3. A site performance agreement and supporting financial guarantee
(in an amount to be determined by the City Manager) shall be
submitted prior to the issuance of permits to assure completion
of approved site improvements.
4. Any outside trash disposal facilities and rooftop mechanical
equipment shall be appropriately screened from view.
5. All new buildings over 2,000 sq. ft. will be equipped with an
automatic fire extinguishing system to meet NFPA Standards
and shall be connected to a central monitoring device in
accordance with Chapter 5 of the City Ordinances.
smoke S detectors shall ll be installed in all accessory structures
I\- per the direction of the Fire Chief.
7. An underground irrigation system shall be installed in all
landscaped areas to facilitate site maintenance.
8. Flan approval is exclusive of all signery which is subject to
Chapter 34 of the City Ordinances.
9. B612 curb and gutter shall be provided around all driving and
parking areas used by the general public
. 10. The plans shall be modifiedotot ndicate the following:
a. All new buildings over 2,000 sq. ft. in floor area
shall -be fire sprinklered in accordance with NFPA
Standard 'No. 13.
1-15-81 -2-
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Application No. 81001 continued
b. A landscaping schedule showing sizes and quantities of
plantings shall be added in accordance with Planning
Commission direction.
11 . The applicant shall enter into- a standard utility maintenance
agreement with the City.
12. Plan approval acknowledges the enlargement of the greenstrip
adjacent to Highway 100 right-of-way to the ordinance required
15' rather than the 5' which presently serves as boulevard for
Lilac Drive. The rolled bituminious curb shall be replaced
with B612 curb and gutter at the new location.
13. The proposed R.L.S. shall have received final appr v l .from
the City Council and filed with the County prior to� Y
14. Plan approval acknowledges a "proof-of-parking" that meets
ordinance requirements. If it is determined that the installed
parking proves inadequate; the City may require the installation
of any or all of the deferred parking indicated on the site
plan.
1-15-81 -3-
Planning Commission Information Sheet-
Application No. 81002
Applicant: Federal Lumber
Location: 4810 N. Lilac Drive
Request: Preliminary Plat
The applicant seeks approval of a preliminary plat to be known as Federal Lumber
First Addition. The new plat will combine into a single .parcel land which
is presently divided into two large and two small tracts of a previous Registered
Land Survey. The platting is being pursued in conjunction with an application
to rebuild the federal Lumber business at 4810 N. Lilac Drive. The location of
the property is immediately south of the Soo Line tracks and east of Highway 100.
An important item not shown on the preliminary plat is the inclusion of most of
the abutting North Lilac Drive right-of-way into the new parcel . Also missing
is the dedication of new right-of-way into the new parcel . Also missing is
the dedication of new right-of-way for a cul-de-sac at the southwest corner of
the property (as shown on the site plan) . Two non-exclusive easements for
roadway purposes over Tracts D and E of R.L.S. No. 546 which run through the
middle of the site will also be vacated. The City will retain a utility ease-
ment over the area described by the existing Tract E, R.L.S. 546 and will
obtain a similar easement over the area presently designated as North Lilac
The proposed plat is generally in order with the exception of the dedication for
right-of-way. Approval is recommended subject to the following conditions:
1 . The final plat is subject to approval by the City Engineer.
2. The final plat is subject to the provisions of Chapter 15 of
the City Ordinances.
3. Prior to consideration by the City Council , the
plat shall be modified to indicate a 90' diameter cul-de-sac
at the southwest corner of the site per City Engineer -
recommendation and the vacation of the existing North Lilac
Drive right-of-way.
4. The applicant shall grant the City a utility easement over
the existing North Lilac Drive and shall enter into a standard
utility maintenance agreement with the City.
5. The applicant shall grant the City an access easement over the
middle driveway leading to the parking- area on Highway 100
right-of-way to allow City maintenance vehicles to turn around
in said area.
1-15-81
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Planning Commission Information Sheet
Application No. 81003
Applicant: Meriwether Restaurants, Inc.
Location: 2101 Freeway Boulevard
Request: Site and Building Plan/Special Use
The applicant requests site- and building plan and special use permit approval of
a 238 seat restaurant to be located at the southwest corner of Shingle Creek
Parkway and Freeway Boulevard. The property is bounded by Interstate 94 on the
south, by Shingle Creek Parkway on the east, by Freeway Boulevard on the north, -
and by the Shingle Creek greenstrip on the west.
The land in question is zoned I-1 and a restaurant is one commercial type use
authorized in this zoning district by a special use permit (See Section 35-330:
3(f) ) . In addition to reviewing and determining that this proposal meets the
Standards for Special Use Permits, a determination must also be made that the
proposed commercial use is compatible and complimentary to existing adjacent
land uses as well as those uses permitted in the I-1 district generally. Also
that the use is of comparable intensity, with respect to activity levels, to
permitted I-1 uses and is planned and designed to assure that generated traffic
will be within the capacity of available public facilities and not have an
adverse impact upon the industrial park or the community. A review of the site
plan and the applican-t-.'s proposal (letter attached) seems to indicate that these
qualifications are met.
The applicant also indicates that there may be, on occasion, some light live
entertainment such as a piano player or minstrels. . This type of entertainment
is generally not of the magnitude that. requires a special use permit, but it
is recommended that it be acknowledged if the permit is granted.
The proposed plan meets all zoning requirements. relative to setbacks, parking
and greenstrips. The building will be roughly in the center of the site 50'
or more from ail right-of-way. Greenstrips of at least 15' surround all parking.
(There is a larger than usual green area adjacent to Shingle Creek Parkway
because the State has purchased access control in that area up to Freeway Blvd. ) .
The plan provides 135 parking stalls, six more than required for 238 seats and
20 employees. Three handicapped parking stalls are provided adjacent to the
main entrance on the east side of the restaurant.
Access to the site is provided by two 24' wide openings, both 'off Freeway Blvd.
The easterly access is set 220' west of the Shingle Creek Parkway intersection
to provide adequate stacking and maneuvering space on Freeway Blvd.; the
westerly access is close to the west edge of the property. Fire hydrants are
located in the boulevard to the northwest of the building and at the corner of
'
Shingle Creek Parkway and Freeway Boulevard. The Fire Chief has recommended
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that a third hydrant be placed at the easterly entrance
to the site.
Landscaping proposed for the site is varied with Norway Maple, Red Maple, Pin
Oak, Little Leaf Linden, Hackberry, and Imperial Locust all within the 2" to
23," diameter range. A number of smaller evergreens are also scheduled. Berms
are proposed at the northwest corner of the site, immediately north of the
restaurant, and in the pocket of land at the west end of the site.
1-15-81 -1.
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Application No. 81003
Drainage on the site will be handled by two catch basins, one on either side of
the restaurant. These will be connected separately to the storm sewer in the
street. The building is surrounded by a 6` wide sidewalk and B612 curb and
gutter are indicated around all parking areas.
The site plan provides for"quite a number of light standards, twenty (20) in
all , including five smaller lights along a sidewalk within the green area north
of the restaurant. This amount of lighting seems more than adequate for this
site. The trash enclosure is proposed for the north side of the building, of
materials, and style i entical to the e bu l`dij�`9 tsel f Ve"4 �
Generally, the plans seem to be in order and'/approval is recommended subject to
at least the following conditions:
1 . Building plans are subject to review and approval by the Building
Official with respect to applicable codes prior to the issuance
of permits.
2. Grading, drainage, utility and berming plans are subject to
review and approval by the City Engineer prior to the issuance
of permits.
3. A site performance agreement and supporting financial guarantee
(in an amount to be determined by the City Manager) -shall be
submitted prior to the issuance of permits to assure completion
of approved site improvements.
4. The special use permit. is issued to the applicant as operator
of the facility and is nontransferable.
5. The permit is subject to all applicable codes, ordinances,
regulations and violation thereof, shall be grounds for
revocation.
6. The special use permit acknowledges light live entertainment
such as apipo player or roving minstrels, cQoin�„ C�,..,.5,,..,e,.._.Q �"Ja
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7. • Any outsidectrraesh disposal facilities and rooftop mechanical
equipment shall be appropriately screened from view.
8. The building is to be equipped with an automatic fire
extinguishing system to meet NFPA Standards and shall be.
connected to a central monitoring device in accordance with
Chapter 5 of the City Ordinances.
9. An underground irrigation system shall be installed in all
landscaped areas to facilitate site maintenance.
-10. Plan approval is exclusive of all signery which is subject to
Chapter 34 of the City Ordinances.
11 . B612 curb and gutter shall be provided around all driving
and parking, areas..
12. The plans shall be modified to indicate a fire hydrant
at the easterly entrance on Freeway Blvd.
0.
1-15-81 v' -2-
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Lincoln Properties, Inc. 400 Shelard Plaza, Suite 258, Minneapolis, Mn. 55426 (612) 542-9444
December 30, 1980
City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430
Re: Proposed Meriwethers Restaurants
Shingle Creek Parkway & Freeway Blvd.
Brooklyn Center, MN
Gentlemen:
In requesting a special use permit for the above referenced Meriwethers
Restaurant, the following will demonstrate that our development meets
the criteria used in issuing a special use permit.
feriwethers Restaurant, a wholly owned subsidiary of General Foods Corp
is a full service sit down restaurant serving food and liquor with a menu
consisting of sandwiches , soups, salads to full dinner entrees. Meriwethers
currently has several units in operation in Detroit with additional units
planned for Chicago as well as the Minneapolis market. Present units are
running a 20% liquor and 80 0/1, food. Entertainment as such is not used, we
do however occassionally have a quitarist or pianist for background music
rather than using the standard type background music.
The building is designed to create an English country theme with fireplaces
and overstuffed chairs etc. giving it the country house atmosphere. The
exterior is finished on all sides using wood and stucco. This- will enhance
and compliment the current area projects and future planned developments.
The present zoning on the property would allow office-warehouse development
similiar to some of the current area development. The proposed Meriwethers
will generate less traffic during peak traffic periods since the major por-
tion of our business is done after 6:30 in the evening. The ingress and
egress to our parking lot will not impede traffic flow on freeway boulevard
as our closest entry point is 220 feet back from the intersection leaving
ample stacking space for stopping and turning.
Commercial Development and Brokerage Company
i
City of Brooklyn Center - 2 - December 30, 1980
Our market research indicates that a real need exists for this type of
restaurant offering both in the immediate business area and the community.
Several precedents exist in the area for issuing a special use permit and
our project will be a positive addition to property values as well as
servicing the community.
Very truly yours,
a - - -
David H. Nelson
Vice President
DHN:jb
Planning Commission Information Sheet
Application No. 81004
Applicant: Meriwether Restaurants, Inc.
• Location: 2101 Freeway Boulevard
Request: Preliminary R.L.S.
This application is a companion to the site and building plan/spocial use appli-
cation for a Meriwether Inn Restaurant at the southwest corner of Shingle Creek
Parkway and Freeway Boulevard. The property in question is that part of Tract
F, R.L.S. No. 1348 remainin a ter highway taking. The new parcel , to be known
as Tract A of an as-yet-i .L.S. is 92,550 sq. ft. There are no City
easements across t'perty.
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The proposed R.L.S. is generally in order and approval is recommended subject to
the following conditions:
1 . The final R.L.S. is subject to the approval of the City
Engineer.
2. The final R.L.S. is subject to the provisions of Chapter 15
of the City Ordinances.
1-15-81
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Planning Commission Information Sheet
Application No. 81005
Applicant: Lisa Rogers Carter
Location: 5308 Humboldt Avenue. North
Request: Special Use Permit (Home Occupation)
The applicant requests approval of a special use permit to conduct a home beauty
shop in the basement of her home at 5308 Humboldt Avenue North. The property
is located in the R2 zoning district and is surrounded by single family homes.
Home beauty shops are classified as special as opposed to permitted home occup-
ations. A number of such establishments have been approved in the past.
The applicant has submitted a letter (attached) requesting the special use permit.
In it, she states that her driveway can accommodate four cars at one time, that
a fire (smoke) alarm will be installed, and -that the shop will be inspected and
licensed by the State Board of Cosmetology. The applicant presently works 20
hours per week at Daytons and intends to work a similar number of hours when
she opens her own shop. However, the hours she will be generally available are:
Monday-Friday, Noon to 8:00 p.m. and Saturday 9:00 a.m. to 4:00 p.m.
The Building Official has inspected the premises and a copy of his report is
attached. Egress from the basement room is excellent. However, the Building
Official noted that certain remodeling and electrical work has been done without
a permit and does not meet code. This work must be corrected prior to the
issuance of a special use permit. The Building Official also recommends a fire
extinguisher to be placed in the shop room and a curtain or folding door to
separate the rest of the basement from the shop.
A public hearing has been scheduled and notices have been sent.
Approval of the special use permit is recommended subject to at 'least the follow-
ing conditions:
1 . The permit is issued to the applicant as operator of the
facility and is nontransferable.
2. The permit is subject to applicable codes, ordinances and
regulations and violation thereof shall be grounds for
revocation.
3. A copy of the applicant's current State operator's license
shall be kept on file with the City.
4. All parking associated with the special use shall be off-street
on space provided by the applicant.
s 5.The hou s of operation shall be limited to Monday through
v Friday, Noon to 8:00 p-.m. ; and Saturday 9:00 a.m. to 4:00
P.m.
6. The applicant shall install a fire extinguisher in the beauty
shop room and shall separate that room from other areas of
the basement with a curtain or door.
• 7. The applicant shall correct all remodeling and electrical
work in the basement area which does not meet code requirements
prior to the issuance of the special use permit.
1-15-81
Lisa Rogers
5308 Humboldt Ave. N.
Jan. 1 ,1981
Dear Ron Warrens
Itm requesting a special use permit fora one operator beauty
salon in the basement of my home. I have recently purchased shop
equipment and plans are drawn for a salon with the dimensions of
12ax15".
Itm aware that parking and home safety are major concerns in
granting this permit. Our concrete driveway can easily accommodate
four cars at one time, thus eliminating stree'iparking. I further plan
to curtail my shop hours to reduce parking problems. I currently
work twenty hours a week at Daytons Beauty salon. I want to continue
working only those hours,when I have s shop in my home.
In regard to home safety, I am installing a fare alarm in
the basement. State Board of Cosmotology will also inspect my shop
for safety and health requirements before granting me a license.
I'm eager to follow regulations and any suggestions of the
• city council. �
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PLANNING AND INSPECTION DEPT. — CITY OF BROOKLYN CENTER N2 68188
SPECTION REQUEST RECORD �1 J /
t0 // /v Date:
Address:
uest By' zed Cz.� �� J Time:
Owner Contractor ther Taken By'
DESCRIPTION OF REQUEST AND INSPECTION NOTES:
_ s
❑ Housing �,
(7 Building ❑Footing [j Environment al
• ❑ Plumbing ❑Framing ❑Water Meter
-T�
❑ Electrical ❑Rough- In ❑Water Line
❑ Mechanical ❑Routine Sanitary Sewer Other
❑ Sign ❑Correction ❑Starm Sewer �] FINAL
_I Residential ❑ Commercial ❑ Industrial Public Permit No.
Inspector's Remarks: .�t'-v
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' Date/Time Completed
P/I Form No. 17 h,"w�`� - ' �- -►;� f!� '`'
Section 35-220. SPECIAL, USE PERMITS
2. Standards for Special Use Permits
A special use permit may be granted by the City Council after
demonstration by evidence that all of the following are net:
(a) The establishment, maintenance or operation of the
special use will promote and enhance the general
welfare and will not-be detrimental to or endanger
the public health, safety, morals, or comfort.
(b) The special use will not be injurious to the use
and enjoyment of other property in the immediate
vicinity for the purposes already permitted, nor
substantially diminish and impair property values
within the neighborhood.
(c) The establishment of the special use will not
impede the normal and orderly development and
improvement of surrounding property for uses
permitted in the district.
(d) Adequate measures have been or will be taken to
provide ingress, egress and parking so designed
as to minimize traffic congestion in the public
streets.
(e) The special use shall, in all other respects,
conform to the applicable regulations of the
district in which it is located.
3. Conditions and Restrictions
The Planning Commission may.recommend and the City Council may
impose such conditions and restrictions upon the establishment,
location, construction, maintenance and operation of the special
use as deemed necessary for the protection of the public interest
and to secure compliance with requirements specified in this ord-
inance. In all cases in which special use permits are granted,
the City Council may require such evidence and guarantees as it
may deem necessary as part of the conditions stipulated in. connec-
tion therewith.
4. Resubmission
No application for a special use permit which has, been denied
by the City Council shall be resubmitted for a period of twelve
(12) months from the date of the final determination by the City
Council; except that the applicant may set forth in writing newly
discovered evidence of change of condition upon which he relies to
gain the consent of the City Council for resubmission at an earlier
time.
5. Revocation and Extension of Special Use Permits
When a special use permit has been issued pursuant to the pro-
visions of this ordinance, such permit shall expire without further
action by the Planning Commission or the City Council unless the
applicant or his assignee or successor commences work upon the sub-
ject property within one year of the date the special use permit is
granted, or unless before the expiration of the one year period the
applicant shall apply for an extension thereof by filling out and
submitting to the Secretary of the Planning Commission a "Special
Use Permit" application requesting such extension and paying an
additional fee of $15.00.
Special use permits granted pursuant to the provisions of a
prior ordinance of Brooklyn Center shall expire within one year of
the effective date of this ordinance if construction upon the sub-
ject property pursuant to such special use permit has not commenced
within that time.
In any instance where an existing and established special use
is abandoned for a period of one year, the special use permit re-
lated thereto shall expire one year following the date of abandon-
ment.
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Planning Commission Information Sheet
Application No. 81006
Applicant: Ryan Oldsmobile
Location: 6700 Brooklyn Boulevard
Request: Site and Building Plan/Special Use Permit.
The applicant seeks site and building plan approval for two additional automobile
sales buildings at Bob Ryan Oldsmobile, '6700 Brooklyn Boulevard One building
would be for 'sale of used cars, the other for sale of Mazdas. The land is zoned
C2 and sale or service of automobilesis a special use within thE C2 zone.
The two proposed structures will be located on either side of the existing
building. Each of the two new buildings is less than 2,000 sq. ft. in size,
1 ,960 sq. ft. for Mazdas; 1 ,148 sq. ft. for used cars, but both will be connected
to the existing sales building by a canopy. These additions will , therefore, be
fire sprinklered as part of a single sales structure well in access of 2,000 sq.
ft. The parking requirements for the additional retail floors ace are not a
factor in this application due to the substantial land area on the,gite. used
for parking and new car storage.
No new landscaping for the site is ,proposed under this plan. Landscaping
required under previous approvals has been installed for the most part and an
inspection will be made this spring to determine if the performance guarantee
can be released.
Drainage of the site was carefully considered during review of application No.
75001 All . parking and driving areas have been paved and surrounded by B612
curb and gut r. No fuU..��ther improvements of this ty a are recommended.
The plans are generally in order and approval recommended subject to at least
. —the following conditions: �--�
1 . Building plans are subject to review and approval by the Building
Official prior to the issuance of permits.
24'` The two upper floors and the new sales offices shall be equipped
with an automatic fire extinguishing system in accordance with
NFPA Standards and shall be connected to a central monitoring
device in accordance with Chapter 5 of the City Ordinances.
3. The special use permit as amended is issued to* the applicant
as operator of the faoility and is nontransferable.
4. The permit is subject to all applicable codes, ordinances,
- regulations and violation thereof shall be grounds for revocation.
5. Plan approval is exclusive of all signery which is subject to the
provisions of the Sign Ordinance.
1.15-81
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Planning Commission Information Sheet
Application No. 81007
Applicant: Ryan Cons truction/Byerly's
Location: 6100 Shingle Creel: Parkway
Request: Site and Building Plan
The applicant seeks approval of site and building plans for a 90,000 sq. ft.
retail food store including a 6,000 sq. ft. , 200 seat restaurant. The store is
to be located on a large tract of land at the southeasterly quadrant of Shingle
Creek Parkway and Summit Drive (across Shingle Creek Parkway from the Hennepin
County Library site) . The site is bounded by Shingle Creek Parkway on the west,
by Summit Drive on the north, by vacant C2 zoned land on the east and south,
and by LaBelle's at the southeast corner. The land in question is zoned C2 and
the proposed use is permitted in that zoning district.
All setback, greenstrip and parking requirements are met by the proposed plan
(utilizing proof of parking) . The total number of spaces required for 84,000
sq. ft. of retail space is 510 spaces. For a restaurant with,200 seats and
26 employees, the requirement is 113 spaces. Although only 597 spaces are
comprehended on the plan, those spaces are longer and wider (9' in the employee
lot and 10' wide in the customer lot) than the City requirement of 8' 8" . The
number of spaces achievable at the minimum width is 672, comfortably more than
the 623 spaces required by ordinance. Fourteen (14) handicapped parking stalls
are located near the front of the building.
There are two accesses to the site from Summit Avenue and one from John Martin
Drive. The access off John Martin Drive is gained via an access easement
across Tract B of the proposed R.L.S. (See Planning Commission information sheet
for Application No. 81008) . Both accesses off Summit Drive provide separation
of ingress and egress traffic with a 4' wide concrete delineator. A drive-up
area with three 10' wide lanes and a possible canopy is located north of the
building between the two main access points off Summit Drive.
Proposed landscaping for the site includes a variety of trees. and shrubs along
Shingle Creek Parkway and along Summit Drive including a number of Norway
Millers, Amur Maples, Russian Olives, and Black Hills Spruce, all of appropriate
sizes. Along the driveway from John Martin Drive, 14 Marshall Seedless Ash are
-scheduled. Along the easterly property line behind .the store, 10 Robusta
Poplars are proposed. These are 22" shade trees placed roughly every 60' to
75' on center. Foundational plantings consist of 8 Canada Red Cherries and
numerous Hughes Junipers.
Drainage of the site is accommodated by three catch basins in the central area
of the main parking lot and by three more catch basins within the driving area
extending from Surmtit Drive to John Martin Drive behind the building. Sub-
stantial berms are indicated in the larger greenstrip areas along Summit Drive.
Berms 3' to 4' in height are also indicated along Shingle Creek Parkway.
There are two proposed trash enclosures, one at the northeast corner of the
building and one at the south end of the far east wall . Trash is conveyed into
compactors at these locations rather than covered bins. The location of these
enclosures. is not yet final and the Commission may wish to suggest a preference.
The enclosures will be identical in appearance to the exterior of the building
which is 1/3 to 213 bond face brick.
I
Application No. 81007 continued
In general , the plans seem to be in order and approval is recommelded, subject to .
at least the following conditions:
1 . Building plans are subject to review and approval by the Building
Official with respect to applicable codes prior to the issuance
of permits.
. 2. Grading, drainage, utility and berming plans are subject to
review and approval by the City Engineer prior to the issuance
of permits.
3. A site performance agreement and supporting financial guarantee
(in an amount to be determined by the City Manager) shall be
submitted prior to the issuance of permits to assure completion
of approved site improvements.
t�
4. Any outside trash disposal facilities and rooftop mechanical
equipment shall be appropriately screened from view.
5. The building is to be equipped with an automatic fire extinguish-
ing system to meet NFPA Standards and shall be connected to a
central monitoring device in accordance with Chapter 5 of the
City Ordinances.
6. An underground irrigation system shall be installed in all
landscaped areas to facilitiate site maintenance.
7. Plan approval is exclusive of all signery which is subject to
Chapter 34 of the City Ordinances.
8. B612 curb and gutter shall be provided around all driving and
parking areas.
9. Plan approval acknowledges a "proof of parking" meeting ordinance
requirements. Should it be determined in the future that
installed parking is insufficient to meet the public demand,
the City may require installation of additional, parking stalls
(or restriping) to achieve the Ordinance requirement of 623
_ spaces. �
7r,
1-15-81 -2-
Planning Commission Information Sheet
Application No. 81008
Applicant: Ryan Construction/Byerly's
Location: 6100 Shingle Creek Parkway
Request: Preliminary R.L.S:
The applicant requests approval of a preliminary R.L.S. containing Tract A (the
Byerly's site) and B. The tracts consist of the land formerly contained in
Tracts A, B, C, D, E, and F of R.L.S. No. 1325. The area in question is zoned -
C2 and constitutes the western portion of the block bounded by Shingle Creek
Parkway on the west, Summit Drive on the North, Earle Brown Drive on the east,
and John Martin Drive on the south. Tract A is to be 11 .04 acres and Tract B,
2.39 acres.
A 45' wide driveway easement is proposed over the southeastern edge of Tract B
to allow access to Byerly's from John Martin Drive. Northern States Power Co.
has a 10' wide easement along John Martin Drive and along Shingle Creek Parkway.
No City utility easements are sought at this time.
The R.L.S. appears to be in order and approval is recommended subject to at
l.east the following conditions:
1 . The final plat is sunject to the approval of the City Engineer.
2. The final plat is subject to the requirements of Chapter. 15.
3. An easement across the southeasterly edge of Tract B shall be
filed' with the final R.L.S. to 'provide access from John Martin
Drive to the Byerly's Store.
1-15-81
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Planning Commission Information Sheet
Application No. 81009 `/
Applicant: Tom Wilhelmy (For Ernst, Lane & Ernst and Conoco)
Location: Northwest corner of 69th and Brooklyn Boulevard
Request: Appeal
The applicant appeals the action of the Director of Planning anJ Inspections
(the Secretary) in not accepting application for a special use permit to
construct a Western Store (sale of groceries and gasoline at retail ) on the
n vW corner of 69th and Brooklyn Boulevard. The land in question is
zoned partly C2 and partly R1. The resulting site would abut RIl zoned
property at a street line, if not a property line. The Zoning Ordinance
prohibits a gas station from abutting R1, R2 or R3 zoned property at either
a property line or a street line. A use variance (which is also prohibited)
was therefore considered to be implied.
The Appeal is made on two counts. The applicant contends, first of all , that
the Secretary of the Planning Commission does not possess the authority to
refuse to accept an application for special use permit. Secon ly, `the appli-
cant appeals the Secretary's interpretation of the Brooklyn Center Zoning
Ordinance. The position of the applicant is laid out extensively in a letter
from Mr. Tom Wilhelmy dated January 2, 1981 (attached). The d termination and
decision of the Secretary is contained in a letter from him dated December 16,
1980 (also attached) .
Authority of the Secretary
Regarding the authority of the Secretary to refuse an application, the approval
of which would require the City Council to violate City Ordinances and State
law by granting a use variance., the following observations are offered:
1. To accept any and every application which must ultimately be
denied by the City Council , absent a change in the• Zo ing
Ordinance, would place an unreasonable burden on the Planning
Commission, the City Council , the City Staff, and even upon
the applicant. The Zoning Ordinance and the review policies
of the Planning Commission and City Council require o appli-
cants that they submit certain information concerning their
proposed use to the Secretary. Use information as well as
structural information is required. Until certain basic
information is received, no application must be accep ed.
Certainly one item of information that must be presen is
the compliance of the use itself to the restrictions as
to use laid out in the vario oning districts. Abs nt
this basic information, there is no real purpose in p o-
ceeding with an application and no requirement in the,
Ordinance of Law to do so.
2. The Planning Commission and the City Council have uph�ld
a similar decision by the Secretary under Application No. 79037.
In that case, Howe Fertilizer appealed the decision of the
Secretary that an application for a variance must be ubmitted
in conjunction with an application for site plan appr val in
which a proposed building was to be located within th required
setback area. The Secretary's action of not acceptin the
site plan application without the variance application was
upheld by the Planning Commission and City Council .
1-15-81 -1-
Application No. 81009 continued
3. In cases where the interpretation of the Zoning Ordinance
is the first and foremost question to be resolved, on which
the entire proposal must stand or fall , the appropriate
procedure for resolving the intent of the Zoning Ordinance
+ is through an Appeal . The proper subject of this application
is the Secretary's interpretation of the Zoning Ordinance.
The applicant acknowledges as-much by the second part of
his appeal letter, which will be discussed next.
Interpretation of the Zoning Ordinance
The appellant's arguments relating to interpretation of the Zoning Ordinance
boil down to two main points.
1. The Western Store with gas pump islands is not properly a
"service or gasoline station" as defined by Section 35-900
of the Zoning Ordinance; but is rather a permitted use,
the retail sale of "automobile accessories" as provided
under Section 35-322, 1(c) (2); and
2. Even if the Western Store facility is actually a gasoline
service station, Section 35-414 of the Zoning Ordinance
exempts the existing OK Tire gas station from the provisions
of Section 35-111. (That section prohibits nonconforming
uses from expanding in structure or land area, or being
moved to a different location on the parcel , and from
structural alterations except those required by ordinance,
law or other regulation.) .
The Planning Commission is referred to the appellant's letter (attached) to
review these arguments in detail . Some of the appellant's reasoning will be
evident from the staff response submitted below.
A. Zoning4Classification of Western Store facility
The appellant suggests that the Western Store facility cannot he construed as a
gas station since the definition of a service station (gas or filling station)
reads as follows:
"Any building or premises used for dispensing, sale or
offering for sale at retail any automotive fuels or oils,
and where battery, tire, and other similar services may be
rendered. When such dispensing, sale or offering for ale
of any fuels or oiis is incidental to the conduct of a public
repair garage, the premises shall be classified as a p blic
repair garage." (emphasis added)
He argues that since "battery, tire, and other similar services" 'are not also
rendered at a Western Store, it cannot be classified as a servi a station.
.Rather, the activity should be classified as a permitted use si ce it consists
of the retail sale of food and groceries, and of "automobile ac essories"
(which is permitted under Section 35-322, 1 (c) (2) . "The retail sale of tires,
batteries and automobile accessories and marine craft accessories") . Staff
would emphasize the inclusion of the work "may" in the service station definition
which makes service and repair an option, not. a necessary function of a service .
station.
. Actions by the City Council and City staff since 1957 when the City first adopted
a definition for 'Service Station" (Gas or Filling Station) have always treated
the retail sale of gasoline as a special use, whether it was in conjunction with
1-15-81 -2
i
Application No. 81009 continued
the service and/or repair of motor vehicles, in conjunction with the sale of food,
or other items (O.K. Tire, Superamerica, 7-Eleven, Q Petroleum) or as an activity
by itself (Shoppers City Gas Station and Pyramid Gas Station) . Section 35-322
1(c) (2)-referred` to by the appellant, has been considered to Over auto parts
stores or the sale of auto accessories within a larger retail o eration. Gasoline
is a fuel which is consumed through the operation of automobile;. It is not an -
"automo6 .le accessory, or product" which becomes a part of the working apparatus
such as battery, spark plugs, air filter, a quart of oil or a g llon of anti-
freeze, Moreover, the land use impacts from the sale of gasoli a are signi-
ficantly more intense than the land use impacts resulting from he sale of auto-
mobile accessories. Hence, the separate classification for this use.
Staff would also point out that the Minnesota Supreme Court has already ruled
on this question in the case of Southland Corporation v. City-9 Minnea olis.
In that case the Court ruled that the self-service gasoline pum s at a 7-Eleven
grocery store constituted an automobile service station, although. no maintenance
or other services were offered (opinion by Justice Todd) .
B. Application of Section 35-414, Particularly Subsection 11 tl Proposed
Western Store Facility.
The appellant argues that Section 35-414, 11 exempts the proposed Western Store,
as a continuation of the O.K. Tire gas station, from the provisions of Section
35-111 concerning nonconforming uses. The Secretary bases his decision not to
accept an application for special use permit in part on the provisions of Section
35-111 .
iSection 35-414, 11 reads as follows;
"The lawful use of land for any automobile service station existing
at the time of the adoption of this ordinance may be continued even*
if such use does not conform to the above regulations provided that
the use is made to conform to these regulations except Subsections
1 , 2, 3, and 4 above, within twelve months of the date that his
ordinance is adopted. Subsection 3 of Section 35-414 shall apply to
all exterior additions, alterations, accessory buildings and signs
erected or constructed after the effective date of this ordinance,"
(The entirety of Section 35-414 is attached for the Planning 'Co�mmission's
reference.)
The preface to Section 35-111 reads as follows:
"Unless specifically provided otherwise herein, the lawful use of
. any land or building existing at t e time of adoption of this
ordinance may be continued even if such use does not conform to
the regulations of this ordinance, provided '(emphasis added)
(The entirety of Section 35-111 is also attached for the Planning Commission's
reference.)
1-15-81 -3-
i
i
Application No. 81009 continued
The appellant argues on pages 9-11 of his submission that Vie p ovisions of
Section 35-111 in their entirety do not apply to O.K. Tire, since gasoline
service stations are governed by Section 35-414,11 . Staff do not accept this
broad brush approach. We would point to the qualifying word "specifically" in
the preface to 35-111 as meaning that a separate or different nonconforming
status may be created for specific uses or aspects of nonconformity; but that
those provisions do not override Section 35-111 generally. The provisions of
35-111 apply except those that are specifically dealt with in Section 35-414,11 .
The exemptions allowed existin gasoline service stations underlltection 35-414,11
are from the following requirements, only:
1 . Frontage on a major thoroughfare, lot width of 130' , ald lot
area of 20,000 sq. ft.
2. Premise abutment with R1 , R2, or R3 zoned property at either
a property line or a street line.
3. Construction in accordance with high architectural standards
and with a council-approved plan, and according to thel
procedure established by Section 35-230.
4. ° No driveway openings wider than 30 feet or within 40 feet of
an intersection, flared, or closer than 50' from anoth r
driveway.
Section 35-414, 11 stipulates that Subsection 3 applies to all ' exterior additions,
alterations, accessory buildings and signs erected.or constructed after the
effective date of this ordinance." It nowhere mentions the wor "nonconforming"
nor does it grant exemption from the provisions of Section 35-111 except in
regard to points 1 , 2 and 4 above. While this eliminates the abutment noncon-
formity of the existing O.K. Tire, it does not eliminate the no conformity as
to setback for the building. Nor is there any right establishe to:
1 . "occupy a greater area of land than that occupied by such use
at the time of the adoption of this ordinance."
2. "be moved to any other part of the parcel of land uponlwhich
the same was conducted at the time of the adoption of this
ordinance."
(Section 35-111 , 1 and 2)
The appellant's proposal would involve the expansion of the service station site by .
14,565 sq. ft. and would move the location of the building about 50' from its
existing location, onto land not presently part of the site. Section 35-414,11
only allows for construction of additions, alterations, accessory buildings and
signs. It does not permit expansion of the site or relocation of the principal
structure. The proposal involving as it does a new site, structure, owner,
operator, and to some extent use, is quite literally a differen use from O.K.
Tire and is not, as appellant seeks to establish, a continuation of that use.
The rights accruing to O.K. Tire under Section 35-414, therefor , cannot be
transferred to the proposed Western Store . And the rights given to O.K. Tire
i under Section 35-414 do not enable it to be converted or expanded to the use
proposed by the appellant.
1-15-81 -4-
Application No. 81009 continued
It should be noted in this report that the appellant has not in iny way challenged
the correctness or fairness of the requirement of the. Zoning Ordinance that gas-
oline, service stations not be allowed to abut R1 , R2 or R3 zoned land either at
a property line or across a street. Absent such a chailenge, no attempt will be
made here to defend the current ordinance.
It should also be noted that the Secretary's refusal to accept ai application for
a special use permit caused the appellant not to pursue a rezoni g or a replatting
application. Either of these applications would have been accepted. Though
their aim would have been quite speculative, no violation of ordinance or statute
would necessarily result from their approval .
Summary
In conclusion, the Secretary's action not to accept an applicati n for special
use permit to construct-a Western Store/gas station at the north es-t corner of
69th .and Brooklyn Boulevard is based on the ordinance requirement contained in
Sections 35-322, 3(a) and 35-414,2 prohibiting the location of a gas station
abutting R1 , R2, or R3 zoned property either at a property line Dr at a street
line; it also rests on Section 35-240:2 of the Zoning Ordinance which expressly
prohibits the City Council from granting a use variance.
We believe we have sufficiently shown in this report that:
1 . The Secretary is not obligated to accept the applicatio for
special use permit;
2. The proposed facility is a gasoline service station as that
term is used in the. Zoning Ordinance; and
3. Section 35-414, 11 does not exempt the O.K. Tire use from all the
provisions of Section 35-111 , nor does it grant that operation
the right to be moved, or to expand beyond its existing premises.
1-15=81 -5-
GRAY, PLANT, MOOTY, M.00TY & BENNETT
&AROLO G.CANT(1887-1973) SUSAN L.LENTZ
iENRY IN HAVE R STOCK(1894-1977) LAW OFFICES DAVID R. KELLY
JOHN E.BROWEP
FRANKLIN D.GRAY
- PAMELA N. MERKIE
FRANK W,PLANT,JR. 300 ROANOKE BUILDING
THOMAS DARLING
JOHN W.MOOTY
SMELDON T. FLECK
MELVIN R.MOOTY MINNEAPOLIS, MINNESOTA 55402 THOMAS J.PATIN,
RUSSELL M. BENNETT '
- � JAMES A,VOSE
CLINTON A.SCHROEDER
EDWARD J.CALLAHAN,JR. TELEPHONE (612) 339-9501 DIANE N
THOMAS S R R..WI LH ELMY
JAMES S.SIMONSON
DAVID N.MOOTY
RICHARD N,FLINT
ELIZABETH M.SCHMIDT
MICHAEL P. SULLIVAN
RICHARD A.HACKETT
CURTIS D.FORSLUND SUITE 912, FINANCIAL CENTER GEORGE W.SOULE
RICHARD A.BOWMAN
HILOY B. LINEMAN
BRUCE D,GRU551NG 3443 NORTH CENTRAL AVENUE JANET C.NEUMAN
C.STEVEN WIL50N
WILLIAM D.KLEIN
JOHN S.CROUCH
DAVID T.BEN N ETT PHOENIX,ARIZONA 85012
_ or eouNael
EDWIN C.CARPENTER ROBERT L.HELLAND
LINDLEY S. BRANSON TELEPHONE(602)277-8961 ROBERT A.STEIN
JOHN W.THIEL -
NOEL P.MULLER - ARIZONA OFFICE
DANIEL R.SHULMAN BERRIEN C. EATON.
MICHAEL R.CUNNINGHAM JEFFREY R.BROOKE-
EUGENE P.DALY '^N"
Or eounael
ANDREW C.SELDEN January 2, 1981
RICHARD A.MOORE,JR. STEPHEN E.LEE++
JAMES R.LANDE -ADMITTED IN ARIZONA
STEPHEN J.SNYDER "ADMITTED IN ARIZONA
JEFFREY J.KEYES AND MINNESOTA
BRUCE KRUGER
ALL OTHERS ADMITTED
WILLIAM L.KILLION
IN MINNESOTA ONLY
JOHN P,JAMES Minneapolis
ELIZABETH W.NORTON REPLY TO....................................... .............................. OFFICE
JOHN Q.MCSHANE
Board of Adjustment and Appeals
City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430 _
Appellants:
Ernst, Lane & Ernst, Inc. (Owner)
12710 12th Avenue North
Plymouth, MN 55447
Continental Oil Company - Western Stores Division
Suite 200
1433 Utica Avenue South
Minneapolis, MN 55416 (Developer)
To the Board of Adjustment and Appeals:
Appeal is hereby made from the decision and determination of
Mr. Ronald A. Warren, Director of Planning and Inspection, as set
forth in a letter dated December 16, 1980, a copy of which is
attached hereto and incorporated herein by reference ( "letter" ) .
The premises affected are situate at the northeast quadrant
of 69th and Brooklyn Boulevard in the City of Brooklyn Center.
The legal description of the premises is set forth on Exhibit A
attached hereto and incorporated herein by reference.
• Appellants seek to make application for necessary permits to
redevelop the premises as a Western Store offering groceries and
gasoline for sale at retail. Enclosed -herewith please find two
Board of Adjustment and Appeals
January 2, 1981
• Page 2
reduced drawings, the first being marked Exhibit I and consisting
of a survey of the premises and adjoining areas, and the second
being marked Exhibit II and consisting of a proposed plan for the
redevelopment of the corner.
The premises are presently zoned C-2 , with the exception of .
the southerly parcel of Lot 5, Block 2, Lane' s Brooklyn Center
Addition which is presently zoned R-1. (See Exhibit I . ) The
application tendered by appellants included, among its requests,
an application for the subdivision of said Lot 5 into a northerly
and a southerly parcel and the rezoning of the southerly parcel
as C-2 . Although presently zoned R-1, said Lot 5 is presently
paved as a parking lot providing parking in connection with the
shops found on Lots 9 and 10, Block 2, Lane' s Brooklyn Center
Addition, immediately northwest of the premises along Brooklyn
Boulevard. (See Exhibit I . )
As outlined by Mr. Warren in his letter, this appeal is
being brought on two -issues. The first of these issues is the
authority of Mr. Warren to refuse to accept appellant's ' application
for a special use permit and other necessary permits. The second ,
issue involves the interpretation of the Brooklyn Center Zoning
ordinance ( "Zoning ordinance" ) as applied to the merits of appellants '
application for the issuance of a special use permit. Although
the resolution of these issues involve questions which are- closely
intertwined, these issues will be addressed, in the order set out
below so as to allow the underlying questions to be more clearly
examined.
I . AUTHORITY OF DIRECTOR OF PLANNING AND INSPECTION
TO REFUSE TO ACCEPT APPLICATION FOR SPECIAL USE
PERMIT.
Mr. Warren indicates in his letter that he would not accept
appellants ' application for a special use permit and other neces-
sary approvals based upon his interpretation of the Zoning ordi-
nance. Appellants dispute Mr. Warren' s authority to make such a
determination and base their appeal of this issue on the rules
governing applications for a special use permit as set forth in
the Zoning ordinance.
Special use permits are recognized and regulated by the
terms and provisions of Secton 35-220 of the Zoning Ordinance. A
copy of this section is attached hereto as Exhibit B for the
convenience of the Board. Section 35-220 commences with a brief
description of the nature of special uses, and then provides as
follows:
1 '
Board of Adjustment and Appeals
January 2, 1981
Page 3
The following rules shall govern appli-
cations for a special use permit:
1. Procedures .
Section 35-220 then sets forth the procedure to be followed by an
applicant for a special use permit, detailing the prescribed
chronology of steps in parts (a) through (i) of subsection 1 .
These steps include submission of the application, study, public
hearings and report to the City Council by the Planning.. Commission,
and final determination by the City Council.
The rules governing applications do not bestow upon the
Director of Planning and Inspections the authority to 'act as
initial arbiter of the merits of any proposed development, nor is
the Director of Planning and Inspections recognized as an offical
who is to interpret the Zoning Ordinance and reject applications
not in conformance with his interpretation of the Zoning Ordinance.
In short, the Zoning Ordinance does not contemplate an
intermediate step between the steps prescribed by parts (b) and
(c) of Subsection 1 of Section 35-220. Instead, the Zoning
Ordinance provides that an application "shall be referred -to the
Planning Commission for public hearing, study and report. "
Appellants therefore request that the Board recommend to the
City Council that Mr. Warren be directed to accept appellants '
application for a special use permit and other necessary permits.
II. REDEVELOPMENT OF THE PREMISES AS A WESTERN STORE.
Mr.. Warren.refused to accept appellants ' application for a
special use permit and other necessary permits based upon his
interpretation of the Zoning Ordinance. The specific objection
raised by Mr. Warren is the abutment of the premises, . both at a
property line and at a street line, with property zoned R-1.
Appellants have offered to amend their application to request the
rezoning of all of Lot 5, Block 2, Lane' s Brooklyn Center Addition,
eliminating abutment at a property line. The abutment before the
Board is therefore abutment of the premises with R-1 property
across June Avenue only.
Mr. Warren's interpretation purports to rest upon two -primary
rationales :
1. The issuance of a special use
permit for applicants ' proposed development
is contrary to the Zoning Ordinance, and the
Board of Adjustment and Appeals
January 2 , 1981
Page 4
granting of a variance- from said restrictions
would constitute a "use variance" which is
expressly prohibited by the Zoning Ordinance.
2. The issuance of a special use
permit for the proposed use of the premises
by appellants cannot give approval to the
sale of gasoline on the premises as a continua-
tion of the sale of gasoline by the O.K. Tire
Gasoline Service Station because the redevelop-
ment by appellants contravenes the noncon-
forming use provisions contained in Section
35-111 of the Zoning Ordinance.
A. Appellants Proposed Use of the Premises
is Compatible 'with the Uses Permitted
By the Zoning Ordinances Within a C-2
Commerce District.
Mr. Warren has determined that appellants proposed use of
the premises would be contrary to the Zoning Ordinance. There
are two provisions cited by Mr. Warren in support of his interpreta-
tion. The first, Section 35-322 :3(a) , is found within the list of
permissible "Special Uses" within a "C-2 Commerce District" , and
.provides, as follows: -
(a) Gasoline service stations (see Section ,
35-414) , motor vehicle repair and auto washes
provided they do not abut an R-1, R-2 or R-3
district, including abutment at a street
line; .
The second, which is referenced in Section 35-322 :3(a) above, is
found within an entire section of restrictions entitled "Special
Requirements for Automobile Service Stations. " Section 35-414:2
provides as follows:
No service station shall be constructed on a
parcel which abuts an R-1, R-2 or R-3 district
including abutment at a street line. For the
purpose of this paragraph, a parcel which
adjoins another parcel at one corner will be
deemed to abut.
Mr. Warren' s position is that the abutment of the premises at a
street line with property located in an R-1 district renders the
proposed use by appellants impermissible under the Zoning Ordinance
since the issuance of a special use permit in this context would
constitute issuance of a use variance. Appellants ' appeal to the
Board from Mr. Warren' s application of the Zoning Ordinance to
their proposed use.
c
Board of Adjustment and Appeals
January 2, 1981
Page 5
The Zoning Ordinance reserves to the City Council the power
to waive insistence on the strict enforcement of the literal
provisions of the Zoning Ordinance to prevent undue hardship by
virtue of circumstances unique and distinctive to an individual
parcel of property under consideration. This authority is limited
by the prohibition of "use variances" at Section 35-240:2 as
referred to by Mr. Warren, which reads as follows:
However, the Board shall not recommend and
the City Council shall in no case permit as a
variance any use that is not permitted under
this ordinance in the distrct where the
affected person' s land is located.
Appellants are not seeking a variance from the literal provisions
of the Zoning Ordinance; instead, appellants base their application
and appeal upon the literal provisions of the Zoning Ordinance
and statements which are contained in the Zoning Ordinance as
expressions of the intent underlying those literal provisions.
Appellants' proposed use of the premises is for the retail
sale of gasoline and groceries. Exhibit II is but one indication
of the substantial efforts which appellants have already made and
are prepared to make in connection with the recommendations of
the Planning Commission in order to ensure that the design of the
proposed use is compatible with the surrounding properties.
Simply stated, appellants ' proposed use is not a "gasoline service
station" , an "automobile service station" , or a "service station" ,
as those terms are defined and used in the Zoning Ordinance. The
restrictions of Sections 35-322 :3(a) and 35-414:2 accordingly are
not properly applied in considering the issuance of the special
use permit and the other necessary permits which have been requested.
Appellants' examination of the Zoning Ordinance discloses
only two sources for interpreting the terms "service station" ,
"automobile service station" , or "gasoline service station" . The
first is set out in the definitional section of the Zoning Ordinance,
Section 35-900, and the second emerges from the statements made
about "service stations" and restrictions placed upon them in
Section 35-414. In each instance a careful review of the Zoning
Ordinance reveals that appellants ' proposed use does not fall
within the category of uses subject to those restrictions.
Section 35-900 provides instructions for the interpretation
and understanding of the Zoning Ordinance.
The language set forth in the test [text] of
this zoning ordinance shall be interpreted in
accordance with the following definition.
Board of Adjustment and Appeals
January 2, 1981
• Page 6
Service Station (Gas or Filling Station)
Any building or premises used for dispensing,
sale, or offering for sale at retail any
automobile fuels or oils, and where battery,
tire or other similar service may be rendered.
(Emphasis supplied. )
The- proposed use by appellants does not include the use of the
premises for the rendering of service to automobiles in any
manner. Appellants propose to sell food items at retail, such as
bread, milk, and other convenience grocery items, and have also
secured an annual allocation of 1,435, 000 gallons of gasoline for
sale from the premises . The proposed development of the premises
does not include any facilities necessary to the rendering of
service to automobiles .
The above-quoted definition, as well as the common usage of
the phrase "automobile service station" , indicates that the
Zoning Ordinance describes not the Western Store proposed by
appellants, but a traditional "service station"--a small relatively
unattractive building enclosing a small corner for the cash
register and two 'Large bays in which to provide oil changes and
tune-ups, with racks of tires displayed for sale out front, and
three or four sickly cars which seem to be perpetually parked on
the side while awaiting some form of automotive surgery to get
them back on the road. This was the vision of the Zoning Ordinance,
and appellants ' interpretation of that intent is borne out by the
section of the Zoning Ordinance set aside to address the regulation
of "automobile service stations" in response to that vision.
Section 35-414 is replete with responses to this vision of the
traditional "service station, " including the following compilations
at subsection 6.
'> Facilities for chassis and gear lubrication
and for washing must be enclosed within the
principal building. No merchandise may be
displayed for sale outside the principal
building except within four feet of the
building or in pump islands unless enclosed
by a 'structure compatible with the building.
No trash, parts or tires may be stored outside
the building unless enclosed by a durable
structure compatible with the design of the
principal building.
Appellants ' proposed use does not include these detrimental
features of "automobile service stations . " Instead, appellants'
use is clearly more similar to the permitted uses in a 11C-2
Commerce District" , which includes the "retail sale of food"
4
Board of Adjustment and Appeals
January 2, 1981
Page . 7
(35-322 :1(a) ) and "the retail sale of tires, batteries and automo-
bile accessories" (35-322 : 1(c) (2 ) ) . The distinction which appel-
!ants seek to draw is dispositive of the issue which appellants
have brought to the Board for determination. The Zoning Ordinance
applies the restrictions of Section 35-414 to uses which involve
the- rendering of battery, tire and other services to automobiles
on the property; the Zoning Ordinance allows as a permitted use
the retail sale of automotive products (tires, batteries, accesso-
ries) so long as the rendering of such services to automobiles is
not performed on the property.
The restrictions of Section 35-414 are criteria created in
response to conditions associated with a specific UsE which the
Zoning Ordinance recognizes as potentially detrimental in certain
instances to the neighboring ,properties. Since thesE restrictions
are designed to meet conditions which are not associated with
appellants ' proposed use, and since appellants ' proposed use is
clearly distinguishable from the specific use addressed by the
Zoning ordinance, it is not appropriate to impose those restric-
tions upon appellants ' proposed use of the premises. , Appellants
propose to offer gasoline for sale at retail and no rendering of
services to automobiles is involved whatsoever. The more offensive
and detrimental aspects of traditional "service stations" which
the persons drafting the Zoning Ordinance had in mind are not
present, therefore the restrictions which those were placed on
traditional "service stations" were not intended to apply to
appellants ' proposed use and should not now be impos d upon
appellants.
n
The Zoning Ordinance instead recognizes that am among the
permitted uses in a C-2 Commerce District" are the retail sale
of food, automobile products, and the "other uses similar in
nature 'to the aforementioned uses, as determined by the City
Council" (Section 35-414:1(j ) ) . Not only are. the products proposed
for sale by appellants similar in nature to the uses expressly
permitted by the Zoning ordinance, but the proposed se is similarly
compatible with those uses listed as permitted on th premises.
The operation of the Western Store will create effec s upon the
surrounding properties substantially identical to th effects
associated with convenience stores offering grocerie - only. This
compatibility is enhanced by the rezoning of the adj ining R-1
property (and its subsequent use as parking) so that the only
abutment of the premises with property zoned R-1 is across June
Avenue. Furthermore, appellants are willing to construct the
Western Store in such a manner that the design of the pumps, the
focus of the lighting, architecturally compatible screens, and
other such aspects of the proposed -development elimi ate any
significant adverse impact on the properties across une Avenue.
1
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I
Board of Adjustment and Appeals
January 2, 1981
Page 8
Appellants have offered, and will evidence in detail in the
plan to be submitted to the Planning Commission, that the proposed
use of the premises is completely compatible with the uses permitted
on the premises, that such use is substantially dissimilar from a
traditional "service station, " and that the proposed hzse would
make a substantial positive contribution to the public health,
safety, welfare and general well-being. of the area. Appellants
therefore request a recommendation by this Board to the City
Council that the proposed development of the premises as a Western
Store be interpretted and recognized as constituting a permitted
use of the premises and not constituting a "service station, " a
"gasoline service station, " or an "automobile service station, "
as those terms are used in the Zoning Ordinance.
B. The Zoning Ordinan
ce Provides That The
Provisions Of Section 35-111 Do Not Apply
To The Continuation Of ,The Lawful Noncon-
forming Use Of Property As An Automobile
Service Station.
The preceding analysis focuses upon the categories created
by the Zoning Ordinance and the definitions and statements of
intent which guide the interpretation of those provisions of the
Zoning Ordinance concerning the regulation of "service stations . "
Appellants ' analysis recognizes that the proposed use .does- not
include the performance of any of the automotive services which
are rendered by traditional "service stations", but instead
includes only the retail sale of food and products similar to
those expressly permitted by the Zoning Ordinance..
Even if the Board does not find the foregoing analysis
persuasive, and instead lumps the proposed use into the category
of .traditional "service stations, " the Zoning Ordina ce provides
a second independent rationale indicating that the p oposed use
by appellants is permitted by the literal terms of a Zoning
Ordinance.
Mr. Warren's letter includes a reference to a discussion
concerning the continuance by appellants of the use of- the premises
by OK Tire Gasoline Service Station, Mr. Warren quite correctly
recites several of the restrictions of Section 35-11l which would
raise questions regarding appellants '. proposed use of the property
if these restrictions applied to the proposed development by
appellants.
However, the Zoning Ordinance provides that the passages
quoted by Mr. Warren are conditions to the continuation of the
lawful use of any land or building existing at the ime of the
adoption of this ordinance" "even if such use does not conform to
Board of Adjustment and Appeals
January 2, 1981
Page 9
the regulation of the this ordinance" which apply "u less specifi-
cally provided otherwise herein. " Section ,35-111 (emphasis
supplied) . However, Section 35-414, the section impDsing special
requirements for "automobile service stations, " doesispecifically
provide otherwise and therefore, by the very terms of the zoning-
Ordinance, the restrictions of Section 35-111 do not apply to the
continuation of a lawful nonconforming use of proper,, y as an
"automobile service station. "
Among the provisions of Section 35-414 is subsection 11,
which provides as follows:
The lawful use of land for any automobile
service station existing at the time of thle
adoption of this ordinance may be continue
even if such use does not conform to the
above regulations provided that the use is
made to conform to these regulations except
subsections 1, 2, 3, and 4 above, within
twelve months of the date that this ordinance
is adopted. Subsection 3 of Section 35-41
shall apply to all exterior additions, al era-
tions, accessory buildings, and signs erected
X or constructed after the effective day of li
this ordinance.
A comparison of the above-quoted passage with the passages quoted
by Mr. Warren in his letter clearly demonstrates that under the
Zoning ordinance the provisions of Section 35-111 d o not apply to
the continuation of the nonconforming use of "automobile service
stations. " Mr. Warren quotes subsection 1 and 3 of Section
35-111, which provide as follows:
No such nonconforming use of the land sha '1
be enlarged or increased or occupy a greater
area of land than that occupied by such u e
at the time of the adoption of this ordinance.
A nonconforming use of a building existing at
the time of the adoption of this ordinance
{ may be extended throughout the building
provided no structural alterations except ':
those required by ordinance, law or others
regulation are made therein.
(Emphasis supplied) .
There is thus a clear contradiction between the pas ages quoted
by Mr. Warren and that portion of Section 35-414:111which provides
that:
i
Board of Adjustment and Appeals
January 2, 1981
Page 10 ,
"Section 3 of 35-414 shall apply to all
exterior additions, alterations, accessory
buildings and signs erected or constructed-
after the effected date of this ordinance.
(Emphasis supplied) .
This contradiction is clear evidence taken directly Crom the
Zoning Ordinance itself- that the continuation of the nonconform-
ing use of property as an "automobile service statio " presents
one context which is "specifically provided otherwis " in the
Zoning Ordinance, and that it was therefore not inte ded that the
general restrictions of Section 35-111 should apply. Moreover,
the portion of Section 35-414 concerning abutment with residential
property is found at subsection 2 . It is subsection 2 of Section
35-414 that Mr. Warren relies upon in his refusal to accept
appellants ' application. The Zoning Ordinance allows the use of
land for any existing "automobile service station" t be continued
despite nonconformity with the restrictions of Secti n 35-414 and
specifically provides that subsection 3, not subsection 2, applies
to additions and alterations constructed after the effective date
of the Zoning Ordinance.
Further evidence that Section 35-111 does not apply is found
by examining the policy upon which it is based. Section 35-111
outlines in statutory form the fundamental policy laid' down in
this area of the law covering uses--from nonconforming duplexes
to nonconforming factories--existing at the time a z ning ordinance
is adopted. This policy is embodied in Sections 35-111:1 through
35-111:3 and, simply stated, is that while a zoning'ordinance
must permit an existing nonconforming use to continue, the zoning
ordinance may prohibit the expansion or enlargement of that use
so. as to encourage the elimination of such use. The Zoning
Ordinance specifically does allow expansions and enlargements to
nonconforming "automobile service stations, " and also specifically
allows "accessory buildings" to be constructed after the effective
date of the Zoning Ordinance. These allowances are in complete
contradiction to the fundamental policy of nonconforminguse and
evidence that the Zoning Ordinance does not apply that policy to
"automobile service stations. "
A factual issue immediately comes to mind--why were "automo
bile service stations" treated differently from other uses of
property with respect to the continuation of a use existing at
the time of the adoption of the ordinance when such use does not
conform to the Zoning Ordinance? There are at least three answers
to this question. First, "automobile service stations" are
treated differently from other uses of land in all respects, not
just with respect to the continuation of a nonconforming use.
The Zoning Ordinance devotes an entire section to the regulation
and restriction of "automobile service' stations. " In light 'of
I
I
i
Board of Adjustment and Appeals
January 2, 1981
Page 11
these extraordinary restrictions- imposed upon the location and
operation of "automobile service stations, " it is notlat all
peculiar that the Zoning Ordinance would specify special rules to
apply to the continuation of a nonconforming use of land as an
"automobile service station" as well.
Second, the Zoning Ordinance recognizes the special role of
the automobile in the lives of the citizens of the community and
the neighboring properties as well. Despite the "particular
problems" and "potentially detrimental aspects" associated with
the operation of automobiles and "automobile service stations, "
the Zoning Ordinance accepts the fact that the citizeas• of Brooklyn
Center require the use of automobiles in their daily ives and
hence the need for "automobile service stations" is r cognized as
being in the public health, gafety, welfare and well- eing despite
the negative aspects associated with such uses of pro erty.
Moreover, the Zoning Ordinance recognizes that, dust as the
automobile is subject to development and revision at a rapid
rate, so too is the equipment and technology involved in the sale
of gasoline subject to rapid modernization so as to better meet
the needs of the citizens purchasing the product invo ved and to
minimize the negative aspects associated therewith. elf-service
pumps and the convenience store concept, both of whic are prominent
features of the Western Store proposed by appellants, are but two
reflections of the evolution of the Western Store fro the old,
traditional "automobile service station" in order to allow consumers
to purchase gasoline and groceries more economically, at the hour
of the day that the need arises, and in a manner thatl, it is also
more convenient for such purchases.
Appellants, therefore, request that the Board recommend to
the City Council, in the alternative, that the proposed use of
the premises by appellants be interpretted and recognized as a
lawful continuation of the use of the premises by OK ire Gasoline
Service Station for the sale of gasoline existing at the time of
the adoption of the Zoning Ordinance.
APPELLANTS:
ERNST, LANE AND ERNST, INC.
and
CONTINENTAL OIL COMPANYII
z Western Stores Division
#
Ttotas R. Wilhelmy
GRAY, PLANT, MOOTY, M00:5402Y & BENNETT
300 Roanoke Building
Minneapolis, Minnesota
Telephone: (612 ) 339-9 01
Attorneys for Appellants
- CITY
OF 6301 SHINGLE CREEK PARKWAY
BROOKLYN CENTER, MINNESOTA 55430
ROOKLYN B
TELEPHONE 561-5440
ENTER ` EMERGE CY-POLICE-FIRE
561-5720
s sa
December.16, 1980
Mr. Thomas R. Wilhelmy
Law Offices
300 Roanoke Building
Minneapolis, MN 55402
Dear Mr. Wilhelmy:
This letter is being sent to you as a followup to-our meeting on December 11 , 1980
regarding a possible redevelopment at the northeast quadrant of 69th and Brooklyn
Boulevard in the City of Brooklyn Center. Specifically your client',, Continental
Oil Company, is proposing to rezone a portion of the area from Rl to C2 in order
to remove various existing structures and seek a special use permit and plan
approval to construct a convenience store/gasoline service station in this area.
I explained to you and to Mr. Ken Ingram on December 11 that your proposal . must
meet all of the City's Zoning Ordinance criteria for gasoline service-stations.
Gasoline service stations are permitted in the C2 zoning district as a special use
permit provided they do not abut an R1 , R2 or R3 zoning district, .including. abut
ment at a street line. (See Section 35-322:3(a) and Section 35-414:42 of the Brooklyn
Center Zoning Ordinance) .
Your proposal , including the rezoning request and the combination of various parcels,
would still leave your convenience store/gasoline service station facility abutting
Rl zoned property, both at a property line and at a. street line. I explained that
this would be contrary to the Zoning Ordinance and a special use permit could not
be granted in such a situation. Furthermore, the City Council would not be in a
position to grant a variance from these provisions because to dos would con-
stitute a "use variance" which is expressly prohibited by Section �5-240:2 of the
Zoning Ordinance.
You indicated that Section 35-414:11 exempted your proposals from he property 1•ine
and street line abutment restriction because of the lawful existence of the O.K.
Tire Gasoline Service Station and the vested right that use has to continue.
There is no argument that that gasoline service station has the legal right to
continue, but it is a nonconforming use and as such is, therefore, subject to the
nonconforming-.use provisions contained in Section 35-111 of the City 's Zoning
Ordinance. Subdivision 1 of 35-111- states as follows:
. r
Mr. Thomas R. Wilhelmy
Page 2
December 16, 1980
"No such nonconforming use-of land shall be enlarged or increased
or occupy a greater area of land than that occupied by such use
-at the time of the adoption of this ordinance."
Subdivision"2 of 35-111 states as follows:
"Such nonconforming use shall not be moved to any other part cf the
parcel of land upon which the same was conducted at the time Of
adoption of this ordinance. '."
Subdivision 3 of 35-11 states in part as follows:
"A nonconforming use of a building existing at the time.-.of-.th� adoption
of this ordinance may be extended. throughout the building provided
no structural alterations except those required by ordinance, llaw
or other regulation are made therein.
The O.K. Tire Gasoline Service Station is not entitled to expand, be enlarged, .or
moved *to any part of the land and any new use of the property, such as the con-
vience store/gasoline service station facility, proposed by your client is subject
to all of the requirements of the City's Zoning Ordinance including the property
line and street line abutment restriction provisions.
Based. on the above interpretation of the Zoning Ordinance, I indicated to you and
Mr. Ingram that I would -not accept your application for a special use permit and
site plan approval , nor the other related Planning Commission,App ications. You
stated that you did not agree with my interpretation. of the Zoning Ordinance and
also disputed my authority to not accept the application for a special use permit.
. Please be advised that Section 35-251 of the Zoning Ordinance establishes a
procedure for appeals from an order, requirement, or determinations made by an
administrative officer in the enforcement of the Zoning Ordinance where it is
alleged that some error in interpretation or judgment .exists as p ovi'ded for in
Section 462.357,Subdivision 6 (1 ) Laws of Minnesota. A written appeal stating
the position of the appellant and the alleged error in interpreta Jon or judgment
must be filed with the Planning and Inspection Department at leas 14 days prior
to the next regular meeting of the Board of Adjustments and Appea s (The Brooklyn
Center Planning Commission) . The next regular meeting of the Pla ning Commission,
sitting as a Board of Adjustments and Appeals, is on Thursday, Ja ivary 15, 1981 .
If you have any questions or comments regarding this matter, please contact me.
Si cerely,
/Ronald A. Warren
Director of Planning and Inspection
RAW:mlg
cc: Gerald-G. Splinter, City Manager
Richard J. Schieffer, City Attorney
Ken Ingram
i
EXHIBIT A
i
I
Lots 6 , 7, £, and the Southerly 54 .28 feet
of Lot 5, all in Block 2, Lane 's Brooklyn
Center Addition, Hennepin County, Minnesota„
according to the plat- thereof, on file and
of record in the office of the Registrar of
Titles in and for said County.
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JUNE AVENUE
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Exhibit B
Section 35-210 (continued)
i
O The Secretary of the Planning Commission, following.the Commission's
action upon the application, and the City Clerk, following -the City Council's
action upon -the application, shall give the applicant a written notice of the
action taken. A copy of this notice shall be kept on file as Ila part of the permanent
record of 'the application. _
(i) The applicant or his agent shall appear at each meeting of -the Commissioi
and of the City Council during which the application is considered. Furthermore,
each applicant shall provide for-the Commission or -the City IiCouncil, as the case
may be -the maps, drawings, plans., records or other inform�I Lion requested by the
Commission or -the City Council for the purpose of assisting the.4etermination of
the application. '
2. R_eview of Rezoning
Where property within -the municipality has been rezoned for a less
restrictive land use upon petition of the owner or his agent pursuantto 'the
provisions of this ordinance and where no structural work -th reon has commenced
within -two (2) years of -the date of the rezoning action by the City Council, the
Planning Commission.may review -the zoning classification o -the property in the
light of the Comprehensive Plan and•make appropriate recommendations 'to the
City Council which may include.the recommendation that the lsubject property
be rezoned to permit a more restrictive use in conformance w�•th 'the provisions
of the Comprehensive Plan. -
Section 35-220. SPECIAL USE PERMITS
Special uses are those which may be required for the public welfare
in.a given district but which are, in some respects, incompatible with -the
permitted uses in the district. Before a building or premises is devoted to any
use classified as a spacial use by -this ordinance, a special use perm_ it must
be granted by -the City Council.
The following rules shall govern applications for a spe ial use permit:
I •
Section 35-220, (continued)
1 . Procedures
(a) A Special Use Permit".application shall be initiated by the owner of
the subject property or his authorized agent. The appii ation shall be
referred to the Planning Commission for pliblic hearing, study and
report and may not be acted upon by the City Council until it has
}
received the recommendation of the Commission, or unt 1 seventy-eight
(78) days have elapsed from the date of referral of the application
without a report by the Planning Commission. The date of referral is
defined as the date of the public hearing.
(b) The applicant or his authorized agent shall fill out and submit to t;le
Secretary of the Planning Commi ssioa a "Special Use Permit" applica-
tioii, copies of which are available at the municipal offices, together
with a fee of $25.. The application shall be filed with the Secretary
of the Planning Commissicn at least fourteen- (14) days efore the date
of the public hearing.
M. The Secretary of the Planning Commissior•. shall refer' the matter to the
Planni.nn Commission by placing the application upon.. the agenda of
the Commission's next regular meeting; provided, howc, er, that the
Secretary may, with the approval of the Chairman of the Commission,
place the application on.the agenda fora special meeting of the
Planning Commission.
(d) Not less than seven (7) days before the date of the hearing, the
Secretary of the Planning Commission shall mail notice of the
hearing to the applicant and to the property owners or occupants
of all property within 150 feet (including streets) of the subject
property when it is within -the R--1 or R-2 districts; and to the property
owners or occupants of all property within 350 feet (including streets)
• of the subject property when it is within any district other than R-1
or R-2. The failure of any such owner or occupant to receive such
notice shall not invalidate the proceedings hereunder.
(e) The Planning Commission shall report its recommendation to the City
Council not later than sixty (60) days following .the date of referral to
the Commission.
(f) The application and recommendation of the Planning Commission shall
be placed on the agenda of-the City Council within eighteen (1.8) days
following the recommendation of -the Planning Commission, or in the
event the Commission has failed to make a recommendation, within
seventy-eight (78) days of the date of referral to the Commission.
Section 35-220 (continued) ,
(g) The City Council shall make a final determination of the application
within forty-eight (48) days of the recommendation byte Planning
Commission, or in the event the- Commission has failed to make any r
recommendation, within one hundred and eight (108) days of the date
of referral to the Commission.
. (h) The applicant or his agent shall appear at each meeting of the Planning
Commission and of the City Council during which the application is
considered. Furthermore, each applicant shall provide for the
'Commission or the City Council , as the case may be, the maps,
drawings, plans, records, or other information (See Section 35-230,
Plan Approval) requested by the Commission or the City Council for
the purpose of assisting the determination of the applic tion.
(i) The Secretary of the Planning Commission, following th Commission's
action upon the application, and the City Clerk , following the City
Council's action upon the application, shall give the a. plicant a
written notice of the action taken.. A -copy .of this notice shall be kept
on file as a part of the permanent record of the application.
2. Standards for Snccial Usc Permits
A special use permit may be granted_by the City Council aft r demonstration
v by evidence that all- of the following are met:
(a) The establishment, maintenance or operation of the special use-will -
promote and enhance the general public wclfarc and will not be
detrimental to or endanger the public health, safety, morals, or
comf ort
(b) The special use will not be injurious to the use and enjoyment of'other
property in the immediate vicinity: for the purposes already permitted,
nor substantially diminish and impair property values within the
neighl)orhood o
(c) The establishment of the special use will not impede the normal and
orderly development and improvement of surrounding property for uses
permitted in the district.
�. x r
Section 35-220 (continued)
(d) Adequate measures have been or will be taken to pr vide ingress ,
egress and parking so designed as to minimize traffic congestion
in the public streets.
(e). The special use shall, in all.other respects , conforin to the appli-
eable regulations of the district in which it is located.
3. Conditions and Restrictions
The Planning Commission may recommend and the City C uncil may impose
such conditions and restrictions upon the establishment, loc tion, construction,
maintenance and operation of the -special use as deemed necessary for the pro-
tection of the public interest and to secure compliance with rb quirements
specified in this ordinance. •In all cases in which special use permits are
granted, the City Council may require such evidence and guarantees as it may
deem necessary as part of the conditions stipulated in connection therewith. "
4 Resubmission
No application for a special use permit which has.been denied by the City
Council shall be resubmitted for a period of twelve (12) months from the date of
the final determination by the City Council; except that the applicant may set
forth in writing newly discovered evidence of change of condition upon which
he relies to gain ,the consent of the City Council for resubmission at an earlier
time.
5. Revocation and Extension of Special Use Permits
When a special use permit has been issued pursuant to a provisions of
this'ordinance, such permit shall expire without further action by the Planning
Commission or the City Council unless the applicant or his assignee or
successor commences wort: upon the subject property within one year of the
date the special use permit is granted, or unless before the expiration of the
one year period the applicant shall apply for an extension thereof Dy filling out
and submitting'-to the Secretary of the Planning Commission a "Special Use
Permit" application requesting such extension and paying an additional fee of
:< $15 .00.
Special use permits ranted pursuant to the provisions o a prior ordinance
p p 9 p P
` 4 of Brooklyn Center shall expire within one year of the effecti a date of this
ordinance if, construction upon the subject property pursuant o such special
r use permit has not commenced within that time.
UtlIII
Section 35-220 (Continued)
and established special use is abandoned
In any instance where an existing^ permit related thereto shall expire one
period of one year, the special ue
z for a P°
year following the date of abandonment.
Section 35-230 . PEEN APPROVAL
e and promote an
City to resery
It is declared to be the policy of the Ci Y P through
residential and business environment foTo thist end ,s imaginative
attractive, table ,ality developments .
encouraging well conceived , high q�
be employed in the design of buildings o edeommencing
architectural concepts shall every person, b�
development of respective sites. In this regard, ehcept one and two family
the construction or major alteration of eto,ushall male application for plan approval
dwellinas and buildings accessory th be required in conjunction with special
Council. Plan approval may lications for plan
from the City i rules shall govern app
use permit co3:sideration. The following
approval:
1 . Pry dures
application shall be initiated by the owner
(a) A ,plan Approval" app licant shall fill
his authorized agent. The apP
. .of_ the subject property or by Commission a "Plan APPro�al
i,-� of the Planning . together
out and submit to t'ne Secretary of the
' _N- ' lication, copies of which are available ailed with the Secretary
with lication shall be f
with a fee of $25. The Opp prior to the next regular meeting
'•M k.' .
r,
Planning Commission at least fourteen (14) days p
of the Planning Commission.
r` h Planning Commission shall refer the matter
(b) The retar Sec y of the application upon the agenda of the
lacing the app may ,
to the Planning Commission by P that the Secretary
provided, however, lace,the application on
Comrijission's next rtgelChairmangofp he Commission, p
with the approval of meeting of the Planning Commission.
the agenda fora special me 9
s , Commission shall report its recommendatio l tot 1
(c) The Planning Comm the date of referral
GO days following
City Council not inter than sixty ( )
referral is defined as the date upon which the applica-
Commission. The date of
tion is first considered by the Planning Commission.
COi .
Section 35-1
11. NONCONFORMING USES
Unless specifically provided otherwise herein, the lawful use of any land
or building existing at the time of adoption of this ordinance m y be continued
even if such use does not conform to the regulations of this ordnance, provided:
1• No such nonconforming use of land shall be enlarged or increased or
occupy a greater area of land than that occupied by such use at he time of the
adoption of this ordinance.
2. Such nonconforming use shall not be moved to any othe part of the
parcel of land upon which the same was conducted at the time of the adoption of
this ordinance.
3. A nonconforming use -of a building 'existing at the time of the adoption
of this ordinance may be extended throughout the building provided no structural
alterations except those required by ordinance, law, or other regulation are made
therein. Excepted from the structural alteration limitation are single family
dwellings, located in residential districts other than R1 or R2* provided any
structural alterations or additions shall conform with the requirements of the
.Rl district.
I
4. If a nonconforming use occupies a building and ceases for a continuous
period of two years, any subsequent use of said building shall be'iin conformity to
the use regulation specified by this ordinance for the district in which such
building is located.
5• Any nonconforming use shall not be continued followingll60% destruction
of the building in which it was conducted.by fire, wind, earthquake, or explosion,
according to the- estimate of the Building Inspector, approved by the City Council.
6. Upon the effective date of this ordinance, where there !is a nonconforming
use of land on a parcel with no structure or where there is a nonconforming use of
land (such as storage of equipment and supplies) , on which there s a conforming
structure, such use shall be terminated within two years following the effective
date of this ordinance.
7. The foregoing nonconforming use provisions notwithstanding, the manu-
facture of chemical fertilizer within the I2 zoning district, and upon the site of
the Howe, Inc. fertilizer plant located at 4821 Xerxes' Avenue North and' legally
described on Exhibit A attached hereto and made a part hereof by reference, shall
be abated and discontinued on or before November 5, 1982,. provide4l however, that
any such manufacture of chemical fertilizers which constitutes a nuisance under
the Common Law, under Minnesota Statutes 561.01, or under Section 19.101 of Brooklyn
Center Ordinances shall be immediately abated and discontinued.
Section 35-200.
COP4PREHENSIVE PLANNING
The City Council hereby undertakes to carry on comprehensively study and
planning as a continuing guide for land use and development legislation within the
municipality. For this .purpose the City Council has adopted, by R solution No. 66
295, a Comprehensive Guide Plan for the Citv of Brooklyn Center, aid designates an
advisory planning agency by Section 35201 to aid in such planning
c
. i
Section 35-320, 1 (continued)
(t) Other uses similar in nature to the aforementioned uses, as deter-
mined by the City Council.
2. Special Requirements
(a) See Section 35-411 of these ordinances.
3. Special Uses
(a) Accessory off-site parking not located on the same property with the
principal use, subject to the provisions of Section 35-7010
Section 35-321 . CIA SERVICE OFFICE DISTRICT.
1 . Permitted Uses (No height limitation)
(a) All of the permitted uses set forth in Section 35-320 shall be permitted
in a building or establishment in the CIA district.
2. Special Requirements
(a) See Section 35-411 of these ordinances
3 . Special Uses
(a) Accessory off-site parking not located on the same property with the
principal use, subject to the provisions of Section 35-701 .
Section 35-322 . C2 COMMERCE DISTRICT.
1 . Permitted Uses
(a) The retail sale of food.
(b) Eating establishments , provided they do not offer live Qntertainment
and further provided that this category does not permit drive-in eating
places . .
(c) The following uses:
(1) The retail sale of heating and plumbing equipment, paint, glass ,
and wallpaper, electrical supplies, and building supplies.
(2) The retail sale of tires , batteries and automobile accessories
? and marine craft accessories.
I
I
I
Section 35-322 (continued)
3. Special Uses
(a) Gasoline service stations (See Section 35-414) , motor
vehicle repair and auto `washes provided they do not abut ,
an R-1, R-2 or R-3 district, -,including abutment at a street
line; trailer rental in conjunction with these uses, provided
'that there is adequate trailer parking space.
(b) The sale or vending at gasoline service stations of items
other than fuels, lubricants or. automotive parts and accessories
(and other than the vending of soft drinks, candy, cigarettes
and other incidental items for the convenience of customers
within the principal building) provided adequate parking is
available consistent with Section 35-704, 2(b) and 2 (c) .
(c) Drive-in eating establishments provided they do not abut an R-1,
R-2, or R-3 district including abutment at a street line.
• (d) Eating establishments offering live entertainment; recreation
and amusement places such as motion picture theaters and
legitimate theater; sports arenas; bowling alleys; skating rinks;
recreation centers; gymnasiums and athletic clubs; and'health spas,
all provided they do not abut an R-1, R-2, or R-3 district, includ=-
ing abutment at a street line.
(e) The sale of motor vehicles at retail.
(f) The out of door display and sale of.marine craft at. retail.
(g) Transient lodging.
(h) Animal hospitals. _
(i) Public transportation terminals (excluding truck terminals) .
(j) Clubrooms and lodges.
(k) Accessory off-site parking not located on the same property with
the principal use, subject to the provisions of Section 35-701.
(1) Sauna establishments and massage establishments, provided they
do not abut any residential (R-1 through R-7) district, including
abutment at a street line.
(m) School bus garage facilities provided all storage, including
vehicles, and minor servicing .and minor repair shall be conducted
wholly within an enclosed building and further provided it does
not abut any residential (R-1 through R-7) districts, including
abutment at a street line.
i
i
•
Section 35-413 (continued)
11 . Site Layout
No building permit shall be issued until a site and parking layout has been
approved as provided in Section 35-230. No parking shall be permitted
within 15 feet of the street right-of-way and this 15 foot area shall be
maintained as a green strip.
The site layout shall include an underground lawn sprinkler system to
facilitate maintenance of site landscaping and green areas
12. Compliance
None of the permitted uses in either the general industrial district or the
industrial park district, during the period of their operations, 'shall fail to
satisfy any of the standards set forth above. In determining compliance
with those standards, the majority vote of the City Council shall be the
test of detectability for vibration, particulate matter, and odor, glare and
heat. Before making this determination, the Council shall ilpersonally ob-
serve any alleged non-compliance.
For noise, odor, smoke and wastes , determination of compliance shall be
by any independent testing organization satisfactory to all parties concerned,
or if there is failure to agree, by such testing.organizations as may be
selected by the City Council after ten days' notice to the alleged-violator.
13. Utilities
On developments of sufficient magnitude so as to require on-site water
main or sewer main construction, plans for such facilities shall be designed
by and installed under the supervision of a civil engineer registered in the
State of Minnesota and shall be submitted to and approved by the City
Engineer. In cases where on-site water or sewer main construction is re-
quired, the land owner or developer shall enter into a water and sewer main
and fire hydrant maintenance and inspection agreement with the City, which
agreement shall grant the City the right to enter the development to accom-
plish maintenance, inspections or repairs that are in the p iblic interest.
Section 35-414_., SPECIAL REQUIREMENTS FOR AUTOMOBILE SERVICE STATIONS.
Automobile service stations pose particular problems in achieving compatibility
with abutting and adjacent land uses because of potentially detrimental aspects of their
operation. The problem is basically both functional and aesthetic, iinvolving traffic
hazards, noise, light glare at night, outdoor storage of merchandise, poor architec-
tural design, indiscriminate advertising, etc. , all of which contrib to to less
enjoyment and use of and reduction of property values in surroundin properties.
It is hereby determined that the general welfare will be better serve by minimizing
adverse functional and. aesthetic conditions vhich nlay result from operation of auto-
mobile service stations and that the use, enjoyment, and improvement of surrounding
property will be enhanced by the fallowing requirements:
i
•
•
t i
r III
Section 35-414 (continued)
1 . Automobile service stations must front, and the primary bui ding face, on a
street designated by the City Council as a major thoroughfare. The minimum
width of the use site shall be 130 feet and the minimum area shall be 20,000
square feet.
2. No service station shall be constructed on a parcel which abuts an R1 , R2
or R3 district including abutment at a street line. For the purpose of this
paragraph, a parcel which adjoins another parcel at one corner will be
deemed to abut.
3. Prior to any construction, the owner or developer shall comply with the
requirements of Section 35-230 which relates to approval of plans. Any
construction must conform to the drawings and specifications cls approved
by the City Council. 'In evaluating architectural design, the City Council
shall follow the principle that the building express sincere', concepts and
honest construction and be compatible with surrounding bu ldings. The
appearance of the community and landscape is to be distur ed as little as
possible. Moreover, the design of the buildings and of the canopy, if
there is one, shall be in scale with the surroundings . Thil sub-section
shall apply to all exterior additions or alterations including accessory
structures and signs.
4. No driveway curb opening will be permitted within forty feet of the inter-
section of the property lines of a corner use site. The maximum right angle
width of any driveway shall be thirty feet at the property line. No driveway
shall be located within fifty (50) feet of another driveway at the'property-
line on the same use site, or be flared outward on the boulevard in such a
way as to encroach upon the boulevard" or abutting propertyll.
5. Provisions shall be made for an unobstructed area free of al11 vehicles,
pumps, signs, displays or other materials which tend to ok�scure vision
where the use site is at the intersection of two streets. The unobstructed
area shall be bounded by the street right-of-way lines abutting the lot
and a straight line joining points on such street lines, fifty feet from the
point of intersection of the street right-of-way lines. This is not intended
to preclude one identification sign which is ten feet or more above the street
grade level and is supported by a pedestal twelve inches r•less in diameter.
6. - Facilities for chassis and gear lubrication and for washingll must be enclosed
within the principal building. No merchandise maybe displayed for sale
outside the principal building except within four feet of th building or in
pump islands unless enclosed by a structure compatible w'th the building.
no discarded trash, parts, or tires may be stored outside t e building unless
enclosed by a durable structure compatible with the design of the principal
building.
i
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1
' �
J
Section 35-414 (continued)
7. Lighting surrounding automobile service stations must meet the
provisions of Section 35-712 . Lighting design must be submitted to the Planning
Commission for recommendations to the City Council and all lighting shall con-
form to drawings and specifications approved by the City Council.
8. Any required buffer or screening area shall be so constructed and
maintained as to keep the beam of automobile headlights from shining into
abutting properties.
9. There may be signs as permitted by the Brooklyn Center Sign
Ordinance.
10. The following activities are prohibited:
(a) Body work and painting
(b) Motor vehicle parking,' except that owners and
employees automobiles and a maximum of three
service vehicles may be parked. Automobiles being
serviced may be parked for a maximum period of 48
hours at any one time.
11 . The lawful use of land for any automobile service station existing
at the time of the adoption of this ordinance may be continued even if such use
does not conform to the above regulations provided that the use is made to
conform to these regulations except subsections 1 , 2, 3, and 4 above, within
twelve months of the date that this ordinance is adopted. Subsection 3 of
Section 35-414 shall apply to all exterior additions, alterations, accessory
buildings and signs erected or constructed after the effective date of this
ordinance,
12. The owner and lessee shall be jointly and severally responsible
for seeing that the above regulations are observed.
Section 35-500, SUBSTANDARD LOTS AND PARCELS
A lot or parcel which was of legal record within the R-1 or R-2 zoning
district on January 1 , 1976, and which does not meet the requirements of this
ordinance as to width or area may nevertheless be utilized for single family
detached dwelling purposes, provided the width is not less than 40 feet at the
property line; the loft area is not less than 5 ,000 square feet; and provided
that yard setback requirements for single family detached dwellings are met.
, ' x
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