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HomeMy WebLinkAbout1979 06-14 PCP y PLEASE NOTE THE NEW STARTING TIME PLANNING COMMISSION AGENDA REGULAR SESSION June 14, 1979 1 . Call to Order: 7:30 p.m. 2. Roll Call j'a—P 3. Approval of Minutes: May 2.4, 1979 4. 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 on these matters . 5. Oasis Petroleum 78062 Special Use Permit, Site and Building Plan approval to remodel and operate the existing Dayton's Service Station at 2605 County- Road 10. (This item was previously reviewed by the Planning Commission on October 5, 1978) . 6. Arthur Kvamme 79018 Rezoning from RI (Single Family Residential ) to R3 (Townhouse/Garden Apartment) of an approximate 32 acre site located between 55th and 56th Avenues at approximately Aldrich Avenue North. (This item was tabled by the Commission and referred to the Southeast Neighborhood Advisory Group on April 12, 1979.) 7. Brauer & Associates 79019 Preliminary Plat approval for the Charlson and Brookdale Ford property, an approximate 30 acre site, located at the northeast quadrant of County Road 10 and Shingle Creek Parkway. (This item was tabled at the Apri 1 12, 1979 meeti ng) 79024 8. Brooklyn Center Industrial Park Preliminary Plat approval to create 11 single' family residential lots on an approximate 3 acre site located easterly of Xerxes Avenue North, - south of I-94. (This item was. tabled by the _ Commission on May 10, 1979) 9. Hot Line Real.ty (Moorwood Townhouses) 79028 Preliminary Plat approval to subdivide three Outlots in the Moorwood Townhouse Addition located at 58th Avenue and Snares Drive. 10. Hot Line Realty Moorwood Townhouses) 79038 Site and Building Plan review for the construction of additional townhouse units in the Moorwood Townhouse Development located at 58th Avenue North and Shores Drive. 11 . Brooklyn Center Industrial Park 79030 Site and Building Plan approval for the Shingle' Creek Plaza Speculative Building located adjacent _ to Schmitt Music on Freeway Boulevard. 12. Meadow Corporation 79031 Site and Building Plan approval for Phase 5 of The Ponds Planned Residential Development located at 72nd and Unity Avenues North. 13. Meadow Corporation 79032 Preliminary Plat approval for Phase 5 of The Ponds Planned Residential Development located at 72nd and Unity Avenues North. 14. Dayton Development 79033 Preliminary Plat approval to subdivide and create an approximate 2.5 acre parcel on the Dayton Development property between Xerxes Avenue North and Brooklyn Boulevard, north of County Road 10. BOARD OF ADJUSTMENTS AND APPEALS 15. James Talmage 79036 Appeal from an administrative ruling regarding a - nonconforming structure located on the northeast corner of 50th and France Avenues North. 16. Howe, Inc. 79037 Appeal from an administrative ruling regarding the application of current Zoning Ordinance requirements for the reconstruction of the building destroyed by fire on. January 6, 1979 at Howe, Inc. , 4321 Xerxes Avenue North. 17. Other Business 18. Adjournment i 1 Planning Commission Information Sheet Application too. 78062 --- — Applicant: Oasis Petroleum Location: 2605 County Road 10 Request: Special Use Permit, Site and Building Plan Approval The applicant is seeking a special use permit and site and building plan approval to remodel the existing Dayton's Gasoline Service Station with a more convenient. self service operation containing two pump islands . The concept shows a one person operation with an attendant on duty primarily to oversee the site and accept payment for gasoline purchased. It would be a 24 hour, 7 day a week operation for dispensing only gasoline and oil and the sale of cigarettes on the site. The applicant, Oasis Petroleum Corporation of Los Angeles, California, has entered into a lease agreement with Day tons for remodeling the gasoline service station's _ facilities at Southdale, Brookdale, Ridgedale, Rosedale and Burnsville Shopping Centers. This application was reviewed by the Planning Commission on October 5, 1,978 at which time the Commission recommended approval of the ap.plication subject to certain conditions. Your attention is directed to the minutes of that meeting. This application is being brought back to the Planning 'Commission for review because at the time of the October 5, 1978 recommendation the site plan had not been approved by the Los Angeles office. The applicant's representative, Mr. - Peter Fischer, was informed at that time that if there were any revisions to the site plan following the review by Oasis, the matter would again be referred to the Planning Commission. New site plans have since been submitted that comprehend additional changes to the plan, such as a reduction in the number of gasoline dispensing islands from three to two; the modification of an area designed for customers to obtain air, water, . and check oil . Additional landscaping has also been provided on the site with the revised plans. The applicant is also proposing to retain an existing storage building that is presently being utilized on the site. In addition, it is their intention to install concrete rather than blacktop in the service area. The traffic flow through the site is designed in such a manner to provide a one- way flow through the site. The plans seem to be in order and approval of the application is 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. Drainage, grading, utility and landscaping plans are subject to approval by the City Engineer -prior to the issuance.of permits. 3. A Performance Agreement and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements prior to the issuance of permits. 4. All .outside trash disposal facilities and rooftop mechanical equipment shall be appropriately screened from view. 6-14-79 _ C.J( Application No. 78062 ` 5. The plans shall be certified by an architect and engineer registered in the State of Minnesota. 6. The Special Use Permit is issued to the operator of the facility and is nontransferable. 7. The Special Use Permit is subject to all applicable codes, ordinances and regulations, including special licensing requirements, and violation thereof shall be grounds for revocation. 8. Plan approval is exclusive of all signery which is subject to Chapter 34 of the City Ordinances. INI a r 6.14-79 -2- y 11111111111 � �� �"i �••'a�p�� �_ s PFQ om R5 COUNTY WATER TOWER Mv 1 Planning Commission Information Sheet Application No. 79018 Applicant: Arthur Kvamme (Madsen Floral ) Location: Between 55th and 56th Avenues at approximately Aldrich Avenue Request: Rezoning The applicant is seeking rezoning from R1 (Single Family Residential ) to R3 (Townhouse/Garden Apartments) of an approximate 3.5 acre tract located within the 5500 block between Camden Avenue North and Bryant Avenue North . The property is bounded on the north by 56th Avenue; on the south by 55th Avenue; on the east by single family residential homes facing Camden Avenue; and on the west by single family residential homes facing Bryant Avenue. The land in questions includes what is presently the 'Madesen Floral property and the property owned by Mrs. Olga Madsen at 5501 Aldrich Avenue North. In addition, the rezoning proposal. - - includes the south 168 feet of 803 and 809 - 56th Avenue North, the north 168 feet of 806 - 55th Avenue North and the north 158 feet of 800 - 55th Avenue North. The applicant is seeking the. rezoning to construct approximately 7 quadra homes on the site if the rezoning is approved. The applicant has submitted a letter indicating that the rezoning would be beneficial and citing the following: the fact that the area is in need of a condominium complex for many of the older residents in the area; that public utilities to service the area are already available; that the joint effort of combining the properties in the rezoning eliminates potentially landlocked property and makes practical use of the land; that traffic to the area will be decreased; that the development will increase the City's tax base; and that the City would rid itself of a nonconforming use (Madsen Floral ) . This item was considered by the Planning Commission and a public hearing was held on April 12, 1979. The matter was tabled and referred to the Southeast Neighborhood Advisory Group for review and comment. Your attention is directed to the April 12, 1979 Planning Commission minutes relating to Application No. 79018 and also the Planning Commission information sheet for that application. The Southeast Neighborhood Advisory Group met on May 3, 1979 and recommended that the application be given a favorable consideration. Minutes of that meeting are attached for the Commission's review. The applicant contends that the property cannot be suitably developed for single family homes. It is true that a variance either from Chapter 15 as to street .___`-___width _or.. from-_Oha_pter__.35_from lot depth_requirements would be needed for a jogged extension of Aldrich Avenue North through this area . Such variance requests might be justified if the current Rl .zoning were retained on the grounds that they would be necessary to allow the owner the reasonable use of his property. The applicant's chief concern seems to be, understandably, financial return. This is not, however, the major consideration in rezonings. The over- all public welfare should be the chief concern and if the proposed zoning-is compatible and consistent with surrounding land uses. With respect to the rezoning, it can be pointed out that there is a scarcity of mid-density residential housing in the Southeast Neighborhood, relative to other neighborhoods in the City. The proposed rezoning is, therefore, a way of meeting broader housing needs with a minimum of disruption to the surrounding residential 0 uses. 6-14-79 -1- ` Application No. 79018 The Commission's attention is directed to Section 35-208 of the City Ordinances (attached) relating to the Rezoning Evaluation Policy and Review Guidelines.. It is the City's policy that all rezoning requests be consistent with these guide- lines. It does not appear that! the rezoning request would be inconsistent with the Comprehensive Plan Guidelines for the Southeast Neighborhood, but the re- zoning proposal should be considered on its merits and measured against the established Guidelines either collectively or individually as the case may be. It does seem that the rezoning proposal may have some public need or benefit in that additional mid-density residential property would be available in an area of the City that does not have much of this type of zoning. The rezoning proposal also seems consistent with and compatible with surrounding land use classific- ations in that single family residential and townhouses, garden apartments and single family attached condominiums are compatible. All of the permitted uses in the proposed zoning district can be contemplated for development on the subject_ property, subject to Zoning Ordinance restriction. The subject property can . be considered generally unsuited for uses permitted in the present zoning district because variance requests would be needed to develop it as single family residential . Further review of the Rezoning Evaluation Policy and Review Guidelines should be undertaken by the Commission and any recommendation to approve the rezoning request should specifically cite the reasons for the recommendation. 6-14-79 -2- M1 MINUTES OF THE PROCEEDING OF THE SOUTHEAST NEIGHBORHOOD ADVISORY GROUP TO TIE PLANNING CO'DaSSION OF TlE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA. THURSDAY EVENING, ?AY 31 1979 CITY HALL CALL TO ORDER: At 7:30 an attendance sheet was distributed to the interested parties present. The- meeting was then called to order at 7:40 by Mr. Louis Sullivan, Chairman, ROLL CALL OF ADVISORY GROUP: Chairman Louis Sullivan, Ben Davidson, June Scofield, Dolores Hastings. Also present was Planning Commission Liaison Mr. George Lucht. PREVIOUS MINUTES: The previous meeting of this group on March 13, 1978 had no bearing on this Review and this was so stated to the group present. The minutes were not - read, CHAIRMAN REMARKS: It was requested by Chairman Sullivan that certain ground rules should be followed during the meeting and these were stated by the chair, The group agreed to follow suggested procedure and it was asked of them that because roll had been taken and all present were on a list submitted that the list be followed so that each interested person would be allowed to speak to the issue, So agreed, THE ISSUE: An application had been submitted by Mr. Arthur Kvamme, seeking rezoning from R1 (Single Family) to R3 (Townhouse/Garden Apartments) on a (approx) 31 acre site located between 55th & 56th Ave. at approximately Aldrich Avenue No. PARTIES IN ATTENDENCE: Interested parties in attendence in the that -they--were called to--speak-to the issue were Art Kvamme, John Hansen, Harriet Enninga., Arnold Enninga, Merrill Nelson, Marvin Nemec, Edwin Beck, LaVerne Dingley, Delores Kvamme, David Larson , Elouise Larson, Dorot#,j Rog, Dorothy Shocinski, Rita Cronander, Einer Cronander, Arne Saf, Edwin Trombly, Myra Swennea, Edward Vavreck (acting as Atty. for P�yra Swennes) and Ann Jarvimaki. QUESTION AND ANSWER: Mr Art Kvamme was asked if he would present diagrams, maps andstate the plan as he had requested in the application to the Planning Commission. This was followed by each party listed above givin7 his or her opinion, position (for or againstlor any comments; they wished to make. Continued page 2 - 0 I Page 2 MINUTES OF THE PROCEEDING OF THE SOUTHEAST NEIGHBORHOOD ADVISORY GROUP MAY 3, 1979. .. _FACTUAL DATA: _Each, r- -nn ,asking pertinent factual questions were given qualified answers by members of the committee. NO QUESTIONS WERE UNANSWERED. TIME FACTOR: .8:30 Atthis time everyone had had a chance to state his or her-wishes and it was requested by Chairman Sullivan that the meeting end at 8:40 so the members of the Southeast Neighborhood Advisory Group could spend time review. Everyone was in agreement to this time plan. Chairman Sullivan thanked all who attended and stated that anyone could stay if they wished. REVIEW BY GROUP: The advisory group requested of Mr. Kvamme additional information on the plan as. drawn. June Scofield stated that the Planning Commission should take a long look at the exact type of housing that was to be built. Dolores Hasting and Ben Davidson expressed concern with the free access for emergency vehicles. After discussion of comments made Pro and Con it was the general concensus that the review made by the Southeast Neighborhood Advisory Group found that by voice vote all members recommended the following. RECOMMENDATION: The Southeast Neighborhood Advisory Group in its review of Planning Commission Application No. 79018 (Resgoning) recommends to the Commission that the application submitted by Mr. Arthur Kvamme be favorably considered. It is to be noted that phone calls from the two absent members of the Advisory Group, Everett Lindh (working) and Mrs. David Brandvold (out of the city on School Board business) also approved of the advisory groups approval of Recommendation. ADJOURNMENT: The meeting was adjourned at 9:15 P,M. ectfull Submitted Louis E. Sullivan Chairman Southeast Neighborhood Advisory Group I a ` Planning Commission Information Sheet Application No. 79019 Applicant: Brauer and Associates Location: Northeast quadrant of County Road 10 and Shingle Creek Parkway Request: Preliminary Plat Approval The applicant is seeking preliminary plat approval for an approximate 30 acre site located at the northeast quadrant of County Road 10 and Shingle Creek Parkway. The property is bounded on the west by Shingle Creek Parkway; on the south by County Road 10; and on the east by the parking lot of the Brookdale East Cinema I,II,III,IV Theater. The theater parking also abuts some of the site on the north with the balance of the northern boundary being abutted by Northwestern Bell Telephone Company. Your attention is directed to the April 12, 1979 Planning Commission minutes and Planning Commission information sheet for Application No. 79019. The parcel is proposed to be subdivided into three blocks, with Block 1 being 16.22 acres, Block 2, 8.8 acres and Block 3, 4.22 acres. Block 1 will contain four lots ranging in size from 2.5 acres to 4.9 acres and a .49 acre Outlot. Block 1 is presently undeveloped and zoned C2. The subdivision is proposed for future development of this area and the projected uses are unknown at this time. Block 2 is currently occupied by Brookdale Ford and the boundaries have changed some- what as a result of acquisition of former NSP property by Brookdale Ford. Block 3, lying westerly of Shingle Creek Parkway and easterly of Shingle Creek, is City Open Space. Access to the lots in Block 1 would be accomplished by utilizing Shingle Creek Parkway, and by constructing a roadway in the center of the site which would terminate in a cul-de-sac at Lots 2 and 3. The proposal also envisions a median cut along Shingle Creek Parkway where the cul-de-sac roadway would be located. Proposed curb cuts are envisioned for right-turn-in and right-turn-out for Lots 1 and 4 which abut Shingle Creek Parkway. These access points would be close to the common property lines with Northwestern Bell on the north and Brookdale Ford on the south so that common use can be made of these curb cuts. The Planning Commission, following a lengthy discussion and a public hearing on April 12, 1979, tabled the matter and directed the staff to work with the affected property owners to determine if a better plan for the area could be realized. There was concern raised regarding the location of a proposed median cut adjacent to the proposed cul-de-sac. Such a location for a median cut would virtually eliminate any other median cuts along Shingle Creek Parkway in this area. It is anticipated that the present median cut that services the Brookdale Ford site . will be eliminated around the time that the Shingle Creek Parkway Interchange with I-94 is opened. Another median cut for Brookdale Ford would not be permitted because it would be located too close to the median cut servicing the proposed cul-de-sac. At the Planning Commission's direction, the City staff met with representatives of Brookdale Ford, the Rauenhorst Corporation (owner of the property on which the Northwestern Bell facility is located), a representative of Brooklyn Center Industrial Park, representatives of Northwestern Bell Telephone Company on May 7 and May 17, 1979. At the May 7 meeting the proposed plat was reviewed and persons in attendance wished additional time to review the matter for possible negotiations for common roadways and median cuts that would serve all of the affected properties. At the May 17 meeting further discussions were held regard- ing the matter and that it seemed that a workable solution could be reached to address the matters of concern. 6-14-79 _1_ z, �_.__, �._.. On May 25, 1979, I received a phone call from Michelle Foster of the Rauenhorst Corporation who informed me that Northwestern Bell is not interested in partici- pating financially to obtain a roadway and median cut at the north property line of the Charlson property. She indicated that Rauenhorst Corporation was, there- fore, not in a position to negotiate the matter further, and that they would be assuming their previous position of desiring a median cut in the area, but not' wishing to dedicate right-of-way or, participating the cost to reimburse the property owner for roadway dedication. The plat is, therefore, before the Commission as it was on April 12, 1979. The City staff has serious reservations about recommending the plat as submitted containing the proposed median cut along Shingle Creek Parkway. It is felt that if such a median cut were approved and installed, there would be no further opportunity to create median cuts that could be shared by abutting properties as well . Also, we have received no concrete development plans for the undeveloped C2 parcel owned by ,Mr. Charlson. It is therefore our recommendation to recom- mend approval of the plat minus any consideration for median cuts along Shingle - Creek Parkway. The matter of median cuts would be reviewed in conjunction with development proposals and, hopefully, agreement as to common access for all parcels concerned can be reached. Approval of Application No. 79019 should be subject to at least the following conditions: 1 . The final plat is subject to the requirements of the City Ordinances. 2. The final plat is subject to review by the City Engineer. 3. The final plat shall be revised to indicate no median cuts along Shingle. Creek Parkway. Further consideration of median cuts will be given by the City at the time development proposals for the undeveloped parcels are submitted, with the understanding that it is the City's intention -to. provide, if possible, common access and median cuts to affected parcels. 6-14-79 -2- R 3 ?' OPEN SPACE I.1 Y R5 I � � '•r '� W 11 `��+.'•,• 1 _= W fREE'IIR BLVD. TO BE CLOSEDy �y� I I o 1"z lQc C2 g.� I� I _ i i• 11 � t��•_ CENTRAL — P�ftK� - �j// •I ----PROPOSED ROADWAYS \ PROPOSES 0 BRIDGES GIRDEN-_CITY 11'i 1 j PARK = I 1 COL- 1 / 1 t4�^RIYY suwwr i I os?" W CIA J c V\ AV O k° e�}• i C is --R7 - 7 19 �r---yT---y����. .-..irl GRANDVIEW PARK 6 TM �H­ FF�F gI/, '\~ � MORTHWAY DR. ! � f~ ., C2 ' NORt 1 •{ HWIY ORIV• �•Z, COUNTY '/ ROAD �—'_� -. _. •7�i C Z / -------------- ---------- ; I I i 2 I(I W ` a• " ,v ® y. LIONS rt w �E WATER TCWER r PARK I MINNEAPOLIS j Planning Commission Information Sheet Application No. 79024 Applicant: Brooklyn Center Industrial Park Location: West Portion of Outlot H, Twin Cities Interchange Park (southeast quadrant of I-94 and Xerxes Avenue North) Request: Preliminary Plat Approval The applicant is seeking preliminary plat approval to subdivide an approximate 3 acre tract into 11 single family residential lots. The parcel is located adjacent to and easterly of Xerxes Avenue North, south of the Freeway. The area is bounded on the west by Xerxes Avenue North; on the north by the Freeway ramp; on the east by City park property and on the south by single family residential lots that face 65th Avenue North. This matter was tabled by the Planning Commission on May 10, 1979 and the Com- mission's intention is directed to the Planning Commission minutes and Planning Commission information sheet of that date. The application was tabled until questions regarding rear yard setbacks from major thoroughfares could be clarified and an opinion obtained from the City Attorney's office. The Commission had also requested a statement from the Department of Transportation regarding when the Xerxes Avenue freeway ramps would be vacated. The Commission's action also in- dicated that the Planning Commission felt the plat was in order except for clari- fication regarding the setbacks from major thoroughfares. Attached is a copy of a letter from William Clelland of the City Attorney's office _ regarding the matter of whether or not 50 ft. setback requirements would be - applied to the front, rear and side corners of the lots in question in the plat. It is the City Attorney's opinion that even though the property does abut a major thoroughfare, the minimum 50 ft. setback requirement for abutting a major thorughfare will apply only to the front and side corner setback requirements of these lots. The City Engineer has also received correspondence from MN/DOT regarding the status of the Xerxes Avenue freeway ramps. This application points out a possible inconsistency with respect to the setback requirements for major thoroughfares. It does not seem reasonable that if an extraordinary setback is required off of a major thoroughfare that the rear yard setback be excluded from this requirement. Likewise, further review of the ---------ordinance setback-requirements- regarding major -thoroughfares might well be- -i-n - - - - -- order, in particular, where noise abatement walls are located. It is felt that an argument can be made that the extraordinary setbacks need not be required where such structure are either in place or contemplated in the relatively near future. The staff will be reviewing this matter for a report and a recommendation at an upcoming Planning Commission meeting. Approval of Application No. 79024 is recommended subject to the following conditions: 1 . The final plat is subject to the requirements of Chapter 15 of City Ordinances. 2. The final plat is subject to review by the City Engineer. 3 -- ---i-h e--8—� Sehee+#&i-str�-a - strict boundary l-i-nes rErn im--ttn�- -- t va_. �� ^ .G-e -6-d�t.�v a-� 6-14-79 -C-_4-,^c p Y{tw CITY IT 6301 SHINGLE CREEK PARKWAY - OF B BRO""OKLYN OKLYN CENTER, MINNESOTA 55430 TELEPHONE 561-5440 C E.N EMERGENCY-POLICE-FIRE TER 561-5720 June 5, 1979 Diem to: Ran Warren From: Jim Noska Re: . Brooklyn Center Industrial Park Plat, easterly of Xerxes Ave. south of I94, Planning commission file #79024. Attached is a letter I received recently from Earl Howe of Mn/DoT District 5 right-of-way office. As you can see from the letter, Earl rakes no cormitment that the area will be vacated. However, he slid indicate to re on the phone, if the surplus is there, they will proceed with vacation, and the City will have firs right to acquire same. Should you wish to discuss the matter at further length, please let me know. "7lie Sa�cet �Z oae ��•, -#1NESp,9. Minnesota 7 Department of Transportation District Five 5801 Duluth Street Golden Valley, Minnesota 55422 (612) 545.3761 May 30, 1979 Mr. Jim Noska City Engineer 6301 Shingle Creek Parkway Brooklyn Center, Minnesota 55430 Re : S .P . 2786 ( 94=393) Parcel 39 .at I-94 & Xerxes Ave . Dear Mr. Noska: This letter is to inform you that upon completion of the construction contract for I-94 in the area of Xerxes Avenue , in Brooklyn Center, this office will review the right of way. If our review indicates there is surplus right of way we will initiate the necessary procedure to reconvey the surplus right of way. Sincerely, E . R.HOWE , P.E . District Right of Way Engineer An Equal Opportunity Employer LAW OFFICES SCHIEPPER AND CARSON, LTD. 610 BROOKDALE TOWERS - S71� AVENUE NORTH.AT BROOKDALE CENTER - RICHARD J. SCHIEFFER MINNEAPOLIS, MINNESOTA 55430 TELEPHONE JEFFREY A.CARSON (612) 561-3200 WILLIAM G.CLELLAND 24 May 1979 _----___-_- -Ronald Warren Director of Planning & Inspection City of Brooklyn Center 6301 Shinale Creek Parkway Brooklyn Center, MN 554.30 RE: EARLE BROWN FIRST ADDITION Dear Mr. Warren, At your request, I have examined the setback requirements with regard to the preliminary plat of Earle Brown First Addition located at the junction of Xerxes Avenue North, 66th Avenue North and Interstate 94 . Specifically, I examined the question as to whether or not the 50 foot setback requirement for properties abutting major thoroughfares would be applied to the front, rear, side interior and side corners of these lots .or whether that 50 foot setback requirement would apply only to the front and side corner setbacks . After reviewing the applicable ordinance, Section 35-400 it is clear that Earle Brown First Addition lies wholly within an R-1 district and considering the language of the ordinance, it appears that even though this property does abut a major thoroughfare, Interstate 94, the minimum 50 foot setback requirement for abutting a major thorough- fare- will apply only to the front and side corners of these lots. Quite clearly, the 50 foot setback requirement as to major thoroughfares __:is referenced by footnote only to the front and side corner lots and, - - further, in the language of footnote two itself, setting forth the 50 foot setback, the only setbacks described by name are the front yard and side corner setbacks. Accordingly, it is my opinion that the 50 foot setback requirement for abutting on a major thoroughfare will apply only to front and side corner setbacks. If you have any questions, regarding my opinion, please feel free to call me. Sincerely, SCHIEFFER AND CARSON, LTD. ///iam G. Clell Man d WGC/tjh a Section 35-208 . REZONING EVALUATION POLICY AND REVIEW GUIDELIPIES. 1. Purpose. . The City Council finds that effective maintenance of the comprehensive r planning and land use classifications is enhanced through uniform and equitable evaluation of periodic proposed changes to this Zoning Ordinance; and for this purpose, by the adoption of Resolution No. 77-167, -the City Council has established a rezoning evaluation policy and review guidelines. 2. Policy It is the policy of the City -that: a) zoning classifications must be consistent with -the Comprehensive Plan, and b) rezoning proposals shall not constitute "s-p- t zoning, " defined as a zor_ing.decision which discrir�iP.3tes i:1 favor of a particular landowner, and does not relate to the Comprehensive Plan or to accepted planning principles. 3. Procedure. Each rezoning proposal will.be.considered on its merits, measured against the above policy and against these guidelines which may be weighed . collectively or individually as deemed by the City. 4. guidelines. _ (a) Is there a clear and'public need,or benefit? (b) Is the proposed zoning consistent with and compatible with surrounding land use classifications? (c) Can all permitted uses in -the proposed zoning district be contemplated for development of the subject property? - (d) Have -there been substantial physical or zoning classification changes -in -the area since -the subject property was zoned? (e) In -the case of City-initiated rezoning proposals, is there a broad public purpose evident? (f) Will -the subject property bear fully the ordinance development restrictions for the proposed zoning districts? - (g) Is the subject property generally unsuited for uses permitted in the present zoning district, with respect ,to size, configuration, topography or location? (h) Will the rezoning result'in -the expansion of a zoning district, warranted by: 1) Comprehensive Planning; 2) the lack of developable land in -the proposed zoning district; or 3)_ the best interests of the community? ' 1) Does -the proposal demonstrate merit beyond -the interests of an owner or owners of an individual parcel? �-., 2,...� III IT I � , I i `q w MOUND CITY MAINTENANCE BUILDING inns low Ogg I oil mm �'sesYm i Planning Commission Information Sheet Application Nos. 79028 and 790.38 Applicant: Hot Line Realty Request: Preliminary Pl Approval (79028) and Site and Building Plan Approval (790.zaat) Location: 58th Avenue North and Shores Drive The applicant is seeking -preliminary plat approval under Application No. 79028 to subdivide Dutlots A, B and C of the Moorwood Townhouse Addition into 16 lots ion. The consisting of Block 1 , 2 and 3 of the Moot�yool0�,oeast Second TwdintLake North area in question is located north of County Road Apartments and lies westerly-of the single family residential homes facing June Avenue North. of the it is• the intent of the applicant to complete the yet unbuilheoF1r°ts4Jisconsin Moorwood Townhouses. Approximately two to three years ago, Bank took over ownership of the complex following foreclosure e on the developer of f the then Shores Townhouses. Foundations had been laid for development under this application and the City required that either construct- -ion .on the units be completed or the open foundations filled in because the situation was considered a hazard. First Wisconsin chose not to continue the construction and filled in at A platting for the Moorwood Townhouse Addition which established the three blocks under consideration as Outlots A, B and C for future development. Application No. 79038 is a request for site and building plan approval to construct 16 townhouse units ( 6 in Block 1 , 6 in Block 2 and 4 in-Block 3) • itis4 applicant's intent to complete tree buildings exactly in the manner approved originally by the City with no deviations or changes. The First Wisconsin Bank has posted a site Performance Bond and nd has asunder taken site the completion of the approved landscaped plan fo performance inspection has beeantadre regard site work��remaainingrtoebeacompleted. First Wisconsin and the applic 9 , They indicated they would reach an agreement on completion of the site work. We will be prepared to recommend release of the remaining portion of the bond follow- he original landscape plan will be implemented. ing assurance that t -- - - - Eli 44! One change from the original site plan is the continuation of Lake urve Under the original plan this street was not nstalended It mskour understanding that Shores Drive, although blacktop has b B-612 concrete persons living rin he complex desire thiscareanuation of the loop. curb and gutter A public hearing has been scheduled for the preliminary plat. Both Application Nos. 79028 (Preliminary Plat) and 79038 (Site and Building Plan) are recommended for approval . Application No. 79028 should be subject to at least the following conditions: 1 . Final plat is subject to review and approval by the City Engineer. 2. Final plat is subject to the requirements of Chapter 15 of the City Ordinances. 6-14-79 -1- Applications 79028 and 79033 Application No. 79038 should be subject to at least the following conditions: 1 . The building plans are subject to review and approval by the Building Official with respect to applicable codes prior to the issuance of permits. 2. Any drainage, grading and utility plans are subjec't'to the review and approval of the City Engineer prior to the issuance of permits. 3. A Performance Agreement and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted - - --- --- - to assure completion of site improvements. 4. The Homeowners Association Agreement is subject to review by the City Attorney to assure that the lots being developed are properly included in the agreement. 5. Plan approval comprehends completion of Lake Curve Lane as a full loop through to Shores Drive. B-612 concrete curb and gutter is required in the area where it is not already in place. 6. Development of this portion of the Moorwood Townhouses shall also be subject �to applicable conditions of the original development approval by the City Council under Application No. 70012. 7. The property is subject to final plat approval prior to the _ issuance of occupancy permits. I I 6-14-79 -2- f L • • , i • � (A lin e REALTY 5700 TWIN LAKE TERRACE (~`� MINNEAPOLIS, ;"N. 55429 612-533-9796 May 15, 1979 Brooklyn Center City Offices 6301 Shingle Creek Parkway Brooklyn Center, M.N. 55130 Attention: Mr. Ron Idarren RE: Plat of Moorwood Townhouses Second Addition Dear Sir: Pursuant to the meeting I had with you and Mr. Will Dahn April 26, 1979 and your request I am herewith enclosing three copies of the plat which Includes the individual platting of outlots A. B, C, as prepared by the firm of BRW. BRW is the engineerin- firm that provided the original en- gineering, platt .n , and survey data for the site . This letter is to confirm it is our intention to complete the buildings on the above mentioned site exactly as approved by your city originally. There will be no deviations or changes, consequently the new buildings will blend in with the existing structures . Enclosed please find Hot Line Realty, Inc. check #1234 in the amount of x!}1.00 which is the 25.00 fee required and ;'1.00 each for. the sixteen - blots, We are .submitting, this information at this early date to be assured the issue will be certain of being on the Planning Commission June meeting and the June Council meeting. It is our intention to begin construction, immediately upon the approval of both bodies. Please feel free to call me any time if you have any questions. Thank you. Sincerely, ,. Dale K. Melby DKM/mhs Encl: 3 sets of platting for Moorwood Townhouses Second Addition Check #1234 in the amount of 4.41.00 • New Construction • Remodeling • Additions � r ■ /.� � •• �/► !1111 ■m ,!� ■� w mq M - lim 'tip ■ ■� •�� �."` �� ,��► �� �S 11 -`1!1 ■ !1N! 1■!� ••.■ .� • _- NINON■ ' a !!r!!!m s �••' ■INS!!! �t �MIND man � . .. � Planning Commission Information Sheet Application No. 79030 Applicant: Brooklyn Center Industrial Park --- -- Location: Freeway Boulevard Request: Site and Building Plan Approval The applicants seeking site and building plan approval to construct three speculati*veuiT�dings totaling approximately 140,000 sq. ft. on.a 13 acre site and is located on Freeway Boulevard, westerly of Schmitt Music . it is bounded on the south by Freeway Boulevard, on the west by vacant industrially zoned property, on the east by the Schmitt Music site and on the north by Shingle Creek. Building No. 1 would be 47,600 sq. ft. , Building No. 2 would be 30,900 sq. ft. and Building No. 3 would be 60,200 sq. ft. The applicant has shown parking for - 262.cars which comprehends that a ° p approximately 15/ of each building could be used for offices with the remaining portion to be used for manufacturing and storage. Additional space is available on the site which could be used for more parking if needed. There is a 50 ft. building setback off Freeway Boulevard which is designated as a major thoroughfare. There is a discrepancy on the plan at the southeast corner of Building No. 1 , which does not meet setback requirements. The plan will have to be modified to accurately reflect the required building setback. Another concern we have with the site plan is an approximate 120 ft. area between Building No. 1 and Building No. 2 which is comprehended as a loading dock area . It is questionable, depending on the location of the loading docks whether two semi-trucks could be docked facing each other and still provide a driving lane. Generally, about 135 to 140 feet is provided in such areas. An existing 25 ft. sanitary sewer easement runs in a southeasterly direction at about the center of the site from west to east for approximately 635 feet and then heads in a southerly direction towards Freeway Boulevarrd. Buildings cannot be located over this type of easement, but can be built "up to it. The exterior of the buildings would be a vertical scored painted concrete block with cedar siding on the office side and ends of the buildings. The same vertical scored painted concrete block with an offsetting painted break off block would be used on the loading dock side of the buildings. He proposes berming along Freeway Boulevard to screen parking lot areas as well as berming around the parking lot area that would face Shingle Creek. Hackberry, _-- -- locust and spruce trees would be used in the landscape treatment as well as sumac, " - - mock orange and Japanese barberries. Approval of this application should be subject to at least the following conditions: 1 . The 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 and utility plans are subject to review and approval by the City Engineer prior to the issuance of permits. 3. A Performance Agreement and supporting financial guaranteee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements. 6-14-79 -1- Application No. 79030 4. The building shall be equipped with an automatic fire extinguishing system to meet NFPA Standard No. 13 and shall be connected to 'a -"- central monitoring device in accordance with Chapter 5 of the City Ordinances. 5. All outside trash disposal -equipment and/or rooftop mechanical equipment shall be appropriately screened from view. 6. B-612 concrete curb and gutter shall be .provided around. all driving and parking areas. 7. The plan shall be modified to provide a 50 ft. building setback off Freeway Boulevard which is a major thoroughfare. 8. An underground irrigation system shall be provided in all sodded and planting areas to facilitate site maintenance. The irrigation system shall not be required in areas by Shingle Creek where natural ground cover will continue to exist. . 9. Plan approval is exclusive of all signery which is subject to the requirements of Chapter 34 of the City Ordinancek.- Mo -6-14-79 -2- x a� Ig CITY MAINTENANCE BUILDING SHINGLE CREEK OPEN SPACE N Planning Commission Information Sheet Application Nos. 79031 and 79032 Applicant: Meadow Corporation Location: 72nd Circle and Unity Avenue North Request: Site and Building Plan Review (79031 ). and Preliminary Plat Approval (79032) The applicant is seeking preliminary plat approval under Application No. 79032 for The Ponds Plat 5 consisting of all of Outlots E and H and part of Outlots A and F of The Ponds located at approximately what will be known as 72nd Circle and Unity Avenue North. The platting is in conjunction with the site and building approval sought under Application No. 79031 . - The plat comprehends the creation of 76 lots, 72 of which would be for dwell.ing units, three of which would be for common areas and an outlot for a private roadway to be known as 72nd Circle. Application No. 79031 is for site and building plan approval for the final de- velopment phase in The Ponds development. This development comprehends 72 condominium single family attached dwelling units. In addition to other trees and plantings, the landscape plan indicates that 11 six inch green ash or silver maple trees to be installed throughout this phase of the development in accordance with the ordinance requirements. The plans seem to be consistent with the master .plan for the development area. We will be prepared to review these plans in more detail . A public hearing has been scheduled for the preliminary plat under Application No. 79032. Approval of t e site and building plans under Application No. 79031 should be subject to at least the following conditions: 1 . The 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 approval by the City Engineer prior to the issuance of permits. - — -- _--- 3. A Performance Agreement and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements. 4. Development of this portion of the overall development shall also be subject to applicable conditions of the original development approval by the City Council under Application No. 76041 , including fencing along the R1 (single family residential ) zoning district boundary. 5. Viable turf, such as sod or seed, shall be provided for all open space areas in accordance with approval by the City. 6-14-,79 vI�L� r+ .� �.. - --. __. _ �pua� -~`EAST 4 Ul oo �N MiI - - - 1 -QUAIL 1 1� w :IC IRCLE111 h CITY - 71 ST AVE ! WILLOW LANE" �0 1 - --- 1 SCHOOL + R < •y..• •.:::. �,�, APPLICATION NOS --- _ -- '� 79031 and 79032 i M AVE N. Z AV > - d2 O(F LJ <' a Z - --- WILLOW LANE _ � ` ` L I � - ----- - PARK a .p 1Z - D ROA NO 130 W F ° z U.S.- - - - POST - - > OFFICE _ c 1 _ 1 TH AVE N W W R2 - - - -- z Z - a z 3 W ` -+ - m 7TH AVE N. 94 - Y -�HOWE O rT = p„ i U TM TH AV Qq- Z �P 1 O r_j l I O W I N T E R cr Y Q O I W U_ o w _ W co 65TH AVE. N. 5 Planning Commission Information Sheet Application No. 79033 Applicant: Dayton Development Company Location: Tract A, R.L.S. 1262 (Dayton Development property located between Xerxes Avenue North and Brooklyn Boulevard, north of County Road 10 Request: Preliminary Plat Approval The applicant is seeking preliminary plat approval °to subdivide a 10 acre parcel known as Tract A., R.L.S. 1262 into Lots 1 and- 2, Block 1 , Brookdale Second Addition. The parcel is bounded on the west by Brooklyn Boulevard; on the south by County Road 10 and Northway Drive, on the east by Xerxes Avenue North and on the north by single family residential property. The affect of the -plat-would be to create an approximate 2.5 acre parcel on the easterly portion of this site abutting Xerxes Avenue North and Northway Drive . and an approximate 7.5 acre parcel abutting Brooklyn Bouelvard, County Road 10 and Northway Drive. The applicant has indicated that a bank is proposing to develop the easterly 2.5 acres. The City Engineer has requested some revisions and additional information regarding the plat, but it seems at this time, to be in order. A public hearing has been scheduled and notices have been sent. Approval of the application should be subject to at least the following conditions: 1 . The final plat is subject to review by the City Engineer. 2. The final plat is subject to the requirements of Chapter 15 of the City Ordinances. I 6-14-79 mum mm SO IMIM IM WIM =11M IM IMMI IMM IM Em IM IM IMMI IM IM IM MHM IM MIM MIM MIME M IM IMMI mmi NORTH APPLICATION CIA. t79033 DRIV Milp COUNTY ROAD 10 SCHOOL- oo WWATER TOWER NINON Planning Commission Information Sheet Application No. 79036 Applicant: James Talmage Location: 5000 France Avenue North Request: Appeal from Administrative Ruling The applicant seeks reversal of an administrative ruling concerning use of a vacant nonconforming single family home at 5000 France Avenue North. He is seek- ing to obtain a Rental Dwelling License for that property to use the home for single family dwelling purposes. The property is zoned R4, in whic.111 single family hones are not a permitted use. According to Section 35-11,1 of the City f � Ordin nc s (attached l n�onforming use which ceases for two years cannot .may recor s in scat that the home has not been occupied since - - - - Hbefore January, 1977. and the Director of Planning and Inspection has refused to accept the owner 's application for a Rental Dwelling License. A letter indicating the rationale for this decision is attached for your review. The applicant states in his letter of appeal (attached) that the property was purchased for the purpose of constructing a parking lot (this is accessory off- site parking for an industrial use, also a nonpermitted use in the R4 district) . He contends that the reason the property has remained vacant for over two years is unusual since during that time he has had several discussions with members of the City staff regarding the use of the property for a parking lot. He feels such a use would be reasonable. In the past two years, there have been a number of written communications between the applicant and the former City Manager and the former Director of Planning and Inspection and various meetings at which time it was indicated that the parcel of land at 5000 France Avenue North cannot be used for off-site accessory Parking. Mr. Talmage has also been urged to make the premises fit for use as a single family residence and the requirements of the Housing Maintenance Ordinance and Rental Dwelling License applications have been conveyed to him. Another consideration in this matter might be whether the property in question is appropriately zoned. Under current ordinance requirements for setbacks, density and parking, no more than three R4 type units could be placed on the parcel in question without a variance. The lot could possibly be considered less than suitable for the use to which it is zoned. The issue of zoning is important in this case since a rezoning to R1 or R2 make the appeal unnecessary. • Strictly speaking, however, the Commission must either recommend upholding or overturning the Director of Planning and Inspection 's ruling. For the Commission to overturn the ruling that a nonconforming use may not' resume occupancy after being two years vacant, yet must note the unique circumstances surrounding the case and must determine that there is reason for a contrary ruling. The applicant will be present to make additional comments and to respond to questions by the Commission. 6-14-79 EF(✓N!.MMq�p•r!rs a^It4r174p,R.�..w��{. . CITY OF 6301 SHINGLE CREEK PARKWAY"Pj BROOKLYN CENTER, MINNESOTA 554200 TELEPHONE 561-5440 . �r N T EMERGENCY-POLICE-FIRE 561-5720 May 10, 1979 Mr. James Talmadge - Mikros Engineering 3715 - 50th Avenue North Brooklyn Center, MN 55429 Dear Mr. Talmadge: This letter is in response to your inquiry regarding the use of the property at 5000 France Avenue North. Specifically, you desire to obtain a rental dwelling license to rent out the single family residential structure- located on that site. The property in question is zoned R4 and has been since 1959. This zoning district permits multiple family dwellings of 1�,2 to 2 stories in height at a cum 1 4„v v i 1[- UvvC 1 1 7119 Uli i ta Pei- a%i'e. 1 lit' LU11.1 ilg d-I S tr 14 i, al�JU d f 1 IJWj UJ�J permittea in zne R3 zoning district whicn include townhouse and garden apart- ments at a density of 8 dwelling units per acre. Single family dwellings are not permitted in the R4 district. The existing single family structure is, therefore, a nonconforming use. As a nonconforming use, the property in question falls under certain restrictions contained in Section 35-111 of the City Ordinances (copy attached) . This section of the ordinance allows the lawful use of any land or buiidino existing at the time of the .adoption of this ordinance to be continued even it the use does not conform to the regulations of the ordinance under certain circLOstances. Point 4 of that section of the ordinance states: ".if. a nonconforming use- occupies- ' - - - a building and ceases for a continuous period of two years, any subsequent use of said building shall be in conformity to the Use regulations specified by this ordinance for the district it which such building is located. " Our records and information indicate that you purchased the property at 5000 France Avenue North prior to January 1 , 1977 and that the single family residential structure had been vacant for some time prier to that date. Our records also indicate that you have previously been informed of the requirements for licensing that residential structure for rental purposes. Because the single family resident- ial structure at 5000 France Avenue North has been vacant and has not been used for, single family residential purposes for more Mar. two ,years, the Toning Ordinance would, therefore, not permit the nonconforming use- to again be undertaken. "We SOf4iE�tCKle �L a2' �r;'S•• 'Mr. James Talmadge Page 2 May 10, 1979 Section 35-251 of the City Ordinances (copy attached) provides for an appeal process from an order, requirement or determination made by an administrative officer in the enforcement of the Zoning Ordinance, where it As alledged that some error in interpretation or judgment exists. The appeal must be submitted- in writing and should set forth the appellant's position showing the alledged error in interpretation or judgment. The appeal must be filed at least 14 days prior to the next regular meeting of the Board of Adjustments and Appeals (the Planning Commission) . The next regular meeting of the Commission a.t which time the appeal could be heard would be June 14, 1979. If you have any questions or comments regarding this matter, please contact me. Sincerely, ' Ronald A. Warren Director of Planning and Inspection RAW:mlg cc: Richard J. Schieffer, City Attorney Will Dahn, Building Official File Enclosures 44 S///�7 Mikros Engineering Inc. CUSTOM INJECTION MOLDING • TOOLING • DESIGN PRODUCTION 3715 50th Ave. No. r Brooklyn Center,Minnesota 55429 May .16,1979 Mr. Ron Warren Director of Planning and Inspection City of Brooklyn Center,Mn. Dear Mr. Warren; You recently determined that the property at 5000 France was not suitable for rental because it was vacant for two years and therefore could not continue as a non-conforming use in an R4 district. I wish to appeal this determination on the grounds that the property was purchased two years ago for the purpose of constructing a parking lot. Several discussions between myself and city staff have taken place during the two years with no positive results. As long as the property has remained vacant for such an unusual reason, I think we should be allowed to rent it. This would at least defray the cost of holding the property while we continue to explore the parking problem. It seems to be the consensus of opinion that a solution to parking problems in our area needs to be found. I know that the site in question presents some problems from a planning standpoint, but it does offer some potential for a solution as long as it is not developed as permitted in the R4 district. Sincerely, ames Talmage Mikros Engineering,Inc. JT/sgc R i Section 35-111 , NON-CONFORMING USES Unless specifically provided otherwise herein, the lawful use of any land or building existing at the time of adoption of this ordinance rn_ny be continued even if such use does not conform to the regulations of this ordinance, provided: 1 . No such non-conforming 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. 2. Such non-conforming use shall not be moved to any other part of the parcel of land upon which the same was conducted at the time of the adoption of this ordinance. 3 . A non-conforming use of a building existing at the time of the adoption of this ordinance may be extended throughout the building provided no structural altera- tions 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 R1 district. 4. If a non-conforming use occupies a building and ceases for a continuous period of two years, any subsequent use of said building shall be in conformity to the use regulation specified by this ordinance for the district in which such building is located. S. Any non-conforming use shall not be Continucd following 60% 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 non-conforming use of land on a parcel with no structure or where there is a non-conforming use of land (such as storage of equipment and supplies) , on which there is a conforming structure, such use shall be terminated within two years following the effective date ----- ------of-t is-ordinance-.- ---- - - - Section 35-200. COMPREHENSIVE PLANNING The City Council hereby undertakes to carry on comprehensive 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 Resolution 66-295 a Comprehensive Guide Plan for the City of Brooklyn Center, and designates an advisory planning agency by Section 35-201 to aid in such planning. I-T-WIN- LW E OL -- LAKESIDE PARK MINE NO. 79036 001 AN #BOAUCDALE w Planning Commission Information Sheet 4 Application No. 79037 Applicant: Howe, Inc. Location: 4821 Xerxes Avenue North Request: Appeal The applicant is seeking an appeal from an administrative determination made by the Director of Planning and Inspection regarding the application of current Zoning Ordinance requirements to the reconstruction of the building destroyed by fire on January 6, 1979 at Howe, Inc. Since the April 19, 1979 Planning Commission meeting, at which time the Commission recommended certain findings of fact and also recommended the denial of two applications submitted by Howe, Inc. , Application No. 79016 (site and building . plan review) and Application No. 79017 (variance) , the City staff has met with Mr. Howe and his representatives to discuss that action and the possibility of developing a new site plan. On May 14, 1979, the City Council concurred with - the Commission 's recommendation regarding certain findings of fact, but the applications were withdrawn with the indication that new site plans would be submitted. As a follow up to those meetings and to various conversations I had with the applicant 's architect and/or his attorney, I forwarded a letter to Mr. Howe conveying the action taken by the City Council and the direction given for further review of the plans. Attached is a copy of that letter, dated May 17, 1979, in which certain procedures and requirements were established. Shortly thereafter, a plan was submitted that was reviewed by the City staff in terms of the May 17, 1979 letter and the current Zoning Ordinance Standards. We again met with the applicant and his representatives on June 1 , 1979 to request certain revisions prior- to accepting an application for site and building plan review. At that meeting we again indicated that the current ordinance provisions relating to setback requirements, landscaping, parking, drainage and other matters would be applied, perhaps not in their entirety, but at least to the area proposed for the reconstruction. It was pointed out that, based on design, a building similar in size (both square footage and cubic footage) and functional ability could be provided while meeting ordinance requirements for setbacks, buffers, and some landscape treatment. It was also indicated that traffic circulation could be continued around and through the site although somewhat modified and that the application of the current Zoning Ordinance requirements was not un- reasonable. At that meeting I was furnished with a copy of a letter from Donald E. Notvik of the State Attorney General 's office regarding the highway property at 49th and Brooklyn Boulevard which could change the interpretation for requiring a 50 ft. building setback. I informed those in attendance that a building setback of 10 ft. might be appropriate because the indication was that the property was acquired not for the construction of a roadway, but rather to provide access to the scale area of the Howe property. The affects of the revisions requested on the Howe site plan were to address and apply the current ordinance provisions to the area immediately north of the middle building and to also provide additional delineated parking on the site, as well as to address the need for correcting drainage problems. The suggested revisions would not have caused a major change in traffic patterns on the site, would have provided a 100 ft. buffer and landscape area north of the middle building and between the reconstructed building and the single family residential property lying to the west. 6-14-79 -1- s 4 Application No. 79037 Curb and gutter was a matter that was required to be installed as much as possible throughout the site to assist drainage. We also requested revisions to the land- scape plan. When asked by Mr. Howe's attorney if I would accept the plan that did not meet the requested revisions, I responded that I would only if a variance application was submitted concurrently along with a written indication as to how the current Ordinance Variance Standards were met. If•these were not submitted, I would not place the matter before the Planning Commission because they would be reviewing a plan that did not meet current ordinance requirements. Mr. Russell indicated that because Howe, Inc. is nonconforming as to use and structure that under the language contained in the ordinance both nonconforming uses and nonconforming structures are to be given the same treatment. He in- dicated that Zoning Ordinance requirements adopted after the structure was built cannot be applied and no variances would be required. He cited his May 25, 1979 memo (attached) as his position. I explained that based on the direction I had received from the Planning Commission : i. r past precedent where the City has required compliance with current Zoning Ordinance Standards when major. structural alterations were undertaken, that I would only accept an application showing that the requirements were met- or a variance from these standards was sought. I added that the City Attorney had reviewed his May 25, 1979 memo and had advised me that I was proceeding properly. I also informed Mr. Russell of his right to appeal my decision not to accept .a plan inconsistent with current Zoning Ordinance requirements without a variance request. In a notice of appeal dated June 4, 1979 (attached) , Howe, Inc. appealed the administrative determination. The May 25, 1979 memo from Mr. Russell serves as their basis for the appeal . Attached is a copy of a memo from City Attorney Richard Schieffer regarding the appeal of the administrative ruling. His opinion indicates that the application of certain ordinance requirements regarding setback, landscaping, buffering, parking, and other matters, result in no significant loss of investment and that a building of the same size and general configuration can be built on the site ` while adhering to buffer and setback requirements. He adds that there is no unconstitutional taking of property or property rights without compensation; t erefore,-- the basis- for justification for permitting --the- building to be e-rected —in violation of these requirements do not exist. It is also the City Attorney's opinion that it must be recognized that nonconforming use provisions simply do not provide the property owner with the justification to ignore all regulations which have come into being after 1957. Only those regulations which deprive __ the property owner of a substantial investment must be relaxed. The applicant's attorney will be present to provide additional information and respond to Commission inquiries. A recommendation by the Planning Commission to overturn the administrative ruling, if concurred with by the City Council , would have> the affect of permitting Howe, Inc. to rebuild the structure as it existed without applying any of the current Zoning Ordinance Standards. 6-14-79 -2- SRUCE E.RUSSELL PHONE: 545-5653 JAMES H.RUSSELL RUSSELL, RUSSELL & M C L E O D AREA CODE 612 R.JEFFREY MC LE00 ATTORNEYS AT LAW 202 THORPE BUILDING 8085 WAYZATA BOULEVARD GOLDEN VALLEY, MINNESOTA 55426 June 4, 1979 Board of Adjustment and Appeals City of Brooklyn Center 6301 Shingle Creek Parkway --- - -� Brooklyn Center, MN 55430 NOTICE OF APPEAL BY HOWE , INC . Gentlemen: This is your notice that Howe, Inc. , appeals from a determination by the City Planner that, although the Howe , Inc. , buildings and land uses were established under an earlier zoning ordinance and were legal thereunder and the current zoning ordinance exempts such established uses from its regulations (Sec. 35-111) , Howe, Inc. , is nevertheless bound by the regulations of the current zoning ordinance. Yours very truly, ames H. Russell JHR/mp 2188 1,4 51 JUN 1979 . a u,/� MEMORANDUM RE APPLICATION OF HOWE, INC. FOR BUILDING PERMIT Section 35-111 NONCONFORMING USES provides : Section 35-111, NONCONFORMING USES. Unless specifically provi ed otherwise herein, the lawful use of any land or building existing at the 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) 1, , , . 2, 000 30 000 4. 5. Any nonconforming use shall not be continued following 60% destruction of the building in which it was conducted by fire, wind, earthquake, or explo- sion, according to the estimate of the Building Inspector, approved by the City Council, The point is made by the City Manager in his letter of April 17 , 1979, that no distinction is made by the nonconforming _--use—ordinance--between nonconforming- use- and _nonconforming struc.-___ _ tunes, The language of the ordinance shows that both kinds of nonconformity are contemplated and accords them both the same treatment, The Howe case demonstrates both kinds : a. Land or structure nonconformity -- The Howe, Inc. , buildings were built when either there was no restric- tion on industrial construction or the restriction was that buildings could occupy no more than a certain percentage of ground area. Later setback and green strip requirements were imposed which made the indus- trial use of the west and north portions of the land nonconforming, The land west of the build- ings has always been used for traffic circulation, loading and unloading activities , storage, rail car movements and parking. The present ordinance requires a 100 foot green strip to buffer an indus- trial use from land zoned residential. bo Use nonconformity -- The manufacturing of ammoniated . fertilizer was in conformity when commenced and made nonconforming when omitted as a permitted use under a later zoning ordinance, Since Section 35-111 exempts both legal nonconforming land and buildings from the regulations of the zoning ordinance when the use of the land and buildings was legal at the time of the adoption of the ordinance and when less than 60% has been destroyed by fire, it follows that : a, Howe, Inc. , has a right to rebuild its burned building which, although totally destroyed, repre- sented less than 60% of the total building complex. b, Howe, Inc. , has a right to the use of its land which was dedicated to an industrial use before the fire because less than 60% destruction of the total building complex took place, -2- If the above position is correct, then special permission for variance from the Zoning Ordinance is unnecessary. Section 35-240 deals with discretionary variances from the regulations of the zoning ordinance from which Howe, Inc. , is exempt ,by reason of the application of Section 35-111. bated: May 25 , 1979 . ,T�a.�ce s H. Russell 67 for Russell , Russell & McLeod Attorneys for Applicant 202 Thorpe Building 8085 Wayzata Boulevard Golden Valley, MN 55426 Tel . (612) 545-5653 f -3- ` CITY OF 6301 SHINGLE CREEK PARKWAY -fr y BROOKLYN CENTER, MINNESOTA 55430 TELEPHONE 561-5440 CE I``V 'I EMERGENCY-POLICE-FIRE 561.5720 May 17, 1979 Mr. Bill Howe Howe, Inc. 4821 Xerxes Avenue North Brooklyn Center, MN 55430 Dear Mr. Howe: This letter is to inform you of the procedure for Planning Commission and City Council review of site and building plans for the construction of a building to replace the building destroyed by fire on January 6, 1979 at Howe, Inc. At the City Council meeting on Monday, May 14, 1979, your attorney, on behalf of Howe, Inc. , withdrew Planning Commission Application No. 79016 which was a re- quest for site and building plan approval , and Planning Corrimission No. 79017 which was a request for a variance. Your attorney indicated that Howe, inc. would be submi i tti ng a new plan for review. The City Council , by consensus, acknovledged the withdrawal of these applications. Based on that acknowledge- ment, Appplication Nos. 79016 and 79017 have been closed. The City Council proceeded to make certain findings relating to the matter of rebuilding. The action taken by the City Council was as follows: 1 . That Howe; inc. was a valid use in 1946 and became a nonconforming use under the City Zoning Ordinance in 1957. 2. That the building destroyed by fire on January 6, 1979 was part o,f._the entire complex, that less than- 60% of--sa-id complex was - - - — - -- - destroyed by the fire' and that, therefore, the applicant is entitled to rebuild a similar warehouse on the site. The City Council also requested the City Manager and the City Attorney to review and report on any options available to the City to set a specific time for the phasing out of nonconforming uses and any potential City liability under such a plan. Following the April 19, 1979 Planning Cornnission meeting, the staff had the opportunity to meet with you and your representatives to discuss and review the Planning Commission 's recommendations and a possible new site plan that you were then considering. The following is a list of items relating to either previously discussed ratters or inatters which should be kept in mind when sub- mitting a new plan for Planning Corim•ission and City Council review: "fly ��rsretl:iru %i�aar ��tt6 Mr. Bill Howe Page 2 May 17, 1979 1 . A full set of drawings including a site plan, drainage plan and landscape plan should be submitted which comprehends all current ordinance standards such as parking provisions land- scaping, buffering and setbacks. 2. A certified site survey drawn by a registered engineer or land surveyor showing pertinent existing conditions accurately dimensioned should be submitted. 3. Copies of any agreements or lease arrangements Howe, Inc. has with the Soo Line for use of certain portions of the Soo Line property must als.o be submitted . Presently Howe, Inc. uses Soo Line property for outside storage as well as vehicle access to some of the buildings on the site. It has also been noted that a portion of the south building is on Soo Line property. 4. Copies of any agreements or arrangements Howe, Inc. has with MN/Dot for use of, or access over, highway right-of-way property by 49th and Brooklyn Boulevard. Any correspondence or documentation from MN/DOT that would indicate the property is considered something other than highway right-of-way property should also be submitted. 5. A new application for site and building plan approval will have to be executed at least two weeks prior to the Planning Commission's next regular business meeting, which is June 14, 1979. 6. A replatting of the Howe, Inc. site will also have to be undertaken as per City Ordinance which states: "multiple parcels 6fland which are contiguous and adjacent and which are proposed to serve a single development and which are under common owner- ship shall .be combined into a single parcel through platting or registered land survey. " 1. The City staff will be reviewing the plans and ordinance require- - ---------n----meats- in-terms-of the--entire- si-te which is -in--keeping- with the finding made by the City Council that the building destroyed by fire on January 6, 1979 was part of the entire complex. This is also in keeping with past City policy dealing with similar matters . 8. The size and type of material , as well as uses permitted in the building, are matters not yet clearly defined and are subject to further clarification and/or review. 9. Any requests for variances will have to meet the ordinance Standards for Variances contained in Section 35-240 (2) (copy attached) . We received a preliminary site plan submitted by Cletus Klein on May 10, 1979 and, it is my understanding, he will be submitting preliminary drainage and landscaping plans shortly. The staff will review these preliminary drawings as soon as possible and attempt to arrange a meeting to discuss any needed revisions prior to submitting the matter for. the Planning Commission's review. Mr. Bill Howe Page May 17, 1979 The City Manager has requested me to inform you that he will be researching various alternatives associated with an accelerated phase out of nonconforming uses. Also, the City Manager is prepared to review and discuss further the matter of the dynamiting permit which was deferred by the City Council , at your request, on May 14, 1979. If you have any questions or comments regarding these matters, please contact either Gerald Splinter, or myself. Sincerely, t000l f Ronald A. Warren Director of Planning and Inspection RAW:mlg cc: Gerald G. Splinter, City Manager Richard J. Schieffer, City Attorney James Russell Cletus Klein MEMO To: Ron Warren, Director of P1anriing and Inspections From: R. J. Schieffer, City Attorney Re: Appeal by Howe, Inc . from Administrative Rulings (Planning _ __Commission Application No. 79037) The essence of the Planning Director' s decision, as set forth in Item 9, Page 2, of his letter to Howe, Inc. , dated May 17 , 1979 , is that structural non-conformity, including setbacks , landscaping, parking, buffer zones , etc. , which existed on the Howe site prior to the fire on January 6th must be either corrected, or variances obtained from such ordinance standards. Accordingly, the Director of Planning advised Howe, Inc. that variances from these ordinance requirements should be sought. The position of Howe, Inc. , pursuant to its attorney' s letter of May25, 1979 , and its notice of appeal of June 4, 1979, is that Howe has the right to re-establish and continue both the use non-conformity, and the structural landscaping, parking, and other kinds of non-conformity which existed in the past. As we have previously noted, in the City Manager' s Memorandum of April 17, 1979 , our ordinance does not set forth specific pro- visions for the treatment of structural non-conformity, at least in the general way. (There are some specific provisions dealing with, e. g. , substandard (non-conforming)lots in Section 35-500 of the zoning ordinance. ) We noted in that same memo that the Planning Commission and City Council have permitted the alteration of struc- tural non-conformity when the structure contained permitted uses . The procedure followed was the simple expedient of a variance, where the standard of variance could be met. Where the standard of vari.-_ ance could not be met , the proposed construction or alteration was not permitted. The attorney for Howe, Inc. , in his memo of May 25 , 1979, quotes the following language from Section 35-111 of the zoning ordinance: " . . . the lawful use of any land or building existing at the time of adoption of this ordinance may be continued even if such use does not conform to the regulations of this ordinance . " (emphasis supplied by Mr. Russell) . Mr. Russell takes the position that the use of the word "land or building" means that the rules under that section of the zoning • r 1 ordinance apply to both structural non-conformity and use non- _ conformity equally. This view is not warranted, either by the language of the ordinance, by Minnesota Statutes , or by the theory of non-conforming use. The City has interpreted this section of the ordinance to permit the granting of a variance for the extension or expansion of a non-conforming structure if the standards for variance can be met. This action is permitted by the ordinance. Also, Minne- sota Statutes Section 462. 357 Subd. 6 (2) specifically forbids granting a "use variance" while placing no restriction on the granting of variances as to setback, dimensions , etc. Therefore, ' --- -- -- - the Planning- Commission may recommend and the City Council may grant a more liberal interpretation of the non-conforming use provisions by granting such variances from structural require- ment. The essential and universal purpose of all non-conforming use provisions is to prevent an unconstitutional taking of pro- perty without paying compensation for it. Zoning regulation of bare land does not violate the constitution because mere ownership of land, without further investment, does not create a vested right to a particular kind of zoning. This issue was decided in the first zoning case, Euclid vs . Ambler Realty Co. 272 U. S . 65 , (1926) . Going slightly beyond that , .zoning ordinances have been applied retroactively even after permits have been issued, to pre- vent the construction of non-permitted uses as long as there has been no "substantial prejudice" to the proper owner. Hawkinson vs . County of Itasca 304 Minn. 367 , 231 NW 2nd 279 (1975) ; Almquist vs. Town of Marshan 308 Minn. 52, 245 NW 2nd 819 (1976) . In--t-He Hawkinson case, property which was partially developed for a resort was rezoned to residential. This was a large tract of land, con- sisting of many different projects such as townhouses , recreation facilities, retail establishments , and other types of uses . The Court picked those which were substantially complete and declared them to be non-conforming uses. Other projects which had a minimal investment, were ordered discontinued pursuant to the new zoning ordinance. Although these cases are not directly relevant to our problem, they illustrate that the Court takes a very practical approach, protecting investment where investment exists , and permitting the ,ordinance to operate where there is no substantial destruction of existing investment. Another illustration is found in the comparison of two recent Minnesota cases , Connor vs . Township of Chanhassen 249 Minn. 205, -81 NW 2nd, 789 (1957) and State, by Lord vs . Pahl 254 Minn. 349 , 95 NW 2nd, 85 (1959) . Both of these cases involve land partially destroyed by a condemnation. Although. condemnation is not directly " s analagous to a fire, both destroy value, and both raise questions of whether or not setback and other non-conforming use provisions apply to partially destroyed property. In the Connor case, the highway took a small building site but left a small remainder tract . The building was moved back to another part of the site which raised the question of whether a non-conforming use could be moved to an- other part of the site in spite of the non-conforming use ordinance _ which prevented it. The Court held that if the building could not be moved, a taking of property without giving compensation would result. Apparently the condemnation had occurred a few years earlier and the highway department did not pay for the taking of the building itself. In the Pahl case, the highway department took the front 35 feet of a large building. Because the taking established a new property line, the front 60 feet of the remaining building was in the setback urea. The Court ruled that the highway department would have to pay for the 35 feet it actually took plus the 60 feet which was "taken by the setback ordinance. Therefore, the setback provisions of the ordinance were enforced but the State of Minnesota paid for the loss . In discussing these two cases , the Court simply stated that in the Connor case they could not enforce the non-conforming use ordin- ance because a substantial loss would result to the property owner. In the Pahl case the setback provision was enforceable simply be- cause the highway department was in Court and the Supreme Court could require them to pay for the owner' s loss of investment. Thus , we can see that the Courts will put aside the complexi- ties of zoning ordinances , setback provisions , non-conforming use requirements , construction formulas , and get down to the basic material at hand: Has the property owner suffered a significant loss of investment as a result of the zoning ordinance? As the Planning Director' s memorandum indicates , the application of certain ordinance requirements regarding setback, landscaping, buffering, parking, and other matters , result in no significant loss of investment. In short, a building of the same size and general . - 7 - - configuration can be built on the sit-e while adhering to buffer and - - - 1 - -configuration requirements. Traffic circulation can continue although the main traffic artery through the site will be.moved somewhat southerly to run between the north and the middle building. The imposition of ordinance requirements does not reduce the size or usage of the building as it existed in 1957 . There is no unconstitutional taking of property or property rights without compensation; therefore, the basis or justification for permitting the building to be erected in violation of these requirements do not exist. Finally, it must be recognized that non-conforming use provisions simply do not provide the property owner with the justification to ignore all regulations which have come into being after 1957 . Only those regulations which deprive the property owner of a substantial 10 investment must be relaxed. R.J. S. June 11, 1979 � -�. ,. 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