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HomeMy WebLinkAbout1979 03-22 PCP r i { • PLANNING COMMISSION AGENDA SPECIAL SESSION March 22, 1979 3 1 . Call to Order: -8:00 p.m. 2. Roll Call 3. 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. 4. Howe, Inc. 79016 Site and Building Plan approval to construct an approximate 217' x 74' precast concrete warehouse, garage and maintenance shop building to replace the building destroyed by fire on January 6, 1979. 5. Howe, Inc. 79017 Variance from Section 35-11) to rebuild a noncon- forming use at setbdck dnd bu 1 C1 1 CyU 11 CIIIC111�.� vtiia.� than that contained in the current Loning urainance. 6. Adjournment 1 k Planning Commission Information Sheet t Application Nos. 79016 and 79017' Applicant: Howe, Inc. Location: 4821 Xerxes Avenue North Request: Site and Buildi,.ng Plan Approval (79016) and a Variance from Section 35-111 to build a Nonconforming Use at Setback and Buffer Requirements other than that contained in the Zoning Ordinance (79017) Applications 79016 and 79017 were tabled by the Planning Commission on March 15, 1979 and continued to a special meeting to be held on March 22, 1979 to allow further time for the preparation of various reports considered to be essential in the Commission's review of these applications. The City Attorney is address- ing a number of legal issues relating to the request to rebuild a structure which was destroyed by fire on January 6, 1979 at the Howe Fertilizer plant. This report is expected by Thursday evening's meeting. Consultants have also been retained by the City to evaluate the current operations of the plant, in- dicate the potential dangers involved with the operations, review current City and State regulations relating to the operations and make recommendations to help ensure the health, safety and general welfare of people on or near the site. The staff has had an opportunity to review the preliminary report of Hickok and Associates relating to chemicals and water quality. The final report is expected by Friday of next week. A report from William H. Bruen, Fire Protection Consult- ant, regarding a general fire safety inspection on the site and a report from R. L. Loofbourow regarding blasting to loosen piles of fertilizer are included with your agenda materials for your review. The site and building plans submitted for review under Application No. 79016 n 1 4.. 1 1 l.. nr�n 1 117 v 7n ' (;ilIIJ IJ L U1 d i'egiJrs L by l.rie appl 7Cdi�C w rebuild uii uFF CXifi�c.tE �l n r building constructed in similar design, function and location to that of the building destroyed by fire. The building housed maintenance operations, chemicals, and fertilizers and was also used for storage of vehicles and equipment. . He proposes to construct a precast concrete building with fire wall separations be- tween the warehouse area and the maintenance and garage areas. The previous building was a metal pole barn type building. The plan also shows* an approximate 37' x 74' lower level located approximately in the middle of the building to be used as a dead file storeroom. The plan indicates a 25' separation between the new and the existing middle building, rather than an approximate 11 ' separation which existed at the time of the fire. The applicant is also seeking, under Application No. 79017, a variance from Section 35-111 of the City Ordinances to allow reconstruction of a nonconforming use as well as variances from the setback and buffer requirements contained in the current Zoning Ordinance. Pres.ently, the Zoning Ordinance requires a 100' buffer strip where I-2 abuts R-1 , and this protective strip cannot be used for parking, driveways, off-street loading or storage and is required to be land- scaped and contain an 8' high opaque fence or wall . It also requires a 50' building setback from the property line where it abuts a major thoroughfare (Brooklyn Boulevard) . The building destroyed by fire was located approximately 85' from the R-1 zoned property at 3129- 49th Avenue North and was 82' from that property at the closest point. Because the applicant proposes a 25' separation between the buildings, the new building would be located approxi- mately 55' from the same residential property and would be 50' at the closest point. The proposed building would be set back l ' at the closest point from the property line where it abuts a major thoroughfare. A 50' building setback is required in this instance by the current ordinance. -1- 3-22-79 ` Applications Nos. 79016 and 79017 The following are points that the staff feels have an affect on the consideration of the variance questions related.to this application. First of all , the Howe Fertilizer operation is a nonconforming use becau.se the manufacturing, wholesale trade, warehousing and storage of fertilizers are. not .listed as either a permitted or special use in the I-2 zoning district. This is consistent with the City's Comprehensive Plan Policy Statement relating to the fertilizer plant which says on page 67 "Recognize the existing fertilizer plant and other nonresidential uses located just off Osseo Road next to the Soo Line Railroad, but prohibit any further expansion of their operations. If at all feasible, the eventual re- location of these uses to more compatible sites should be undertaken thereby permitting a rounding out of the existing residential area." In reviewing the variance requests, particular attention must be given to the Standards for Variances contained in the Zoning Ordinance. Section 35-240 states that: "In instances where the strict enforcement of the literal provisions of this Zoning Ordinance would cause undue hardship because of circumstances unique and distinctive to an individual property under consideration, the City Council shall have the power to grant variances, in keeping with the spirit and intent of this ordinance. The provisions of this ordinance, considered in conjunction with the unique and distinctive circumstances affecting the property must be the proximate cause of the hardship; circumstances caused by the property owner or his prede- cessor in title shall not constitute sufficient justification to grant a variance." The ordinance goes on to state at Section 35-240 2, that: "The Board of Adjustments and Appeals may recommend, and the City Council may grant variances from the lateral provisions of this ordinance in instances where their strict enforcement would cause undue hardship because of curcumstances unique and distinctive to the individual property under consideration. However, the Board shall not recommend and -he C ty Counci 1 shall in no Case permit as a liai"iurwe, any use that is �i�t permitted under this ordinance in the district where the affected persons land is located. A variance may be granted by the City'Council after demonstration by evidence that all of the following qualifications: (a) Because of the particular physical surroundings, shape, or topographical conditions of the specific parcels of land . involved, a particular hardship to the owner would result, as distinguished from-a mere inconvenience, if the strict letter of the regulations were to be carried out. (b) The conditions upon which the application for a variance is based are unique to the parcel of land for which the variance is sought, and are not common, generally, to other property within the same zoning classification. (c) The alleged hardship is related to the requirements of this ordinance and has not been created by any person presently or formerly having an interest in the parcel of land. (d) The granting of the variance will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel of land is located. -2- 3-22-79 Application Nos. 79016 and 79017 It would seem inconsistent to recommend that the building be allowed to be re- constructed in light of the Comprehensive Plan Policy which addresses the eventual relocation of this use to a more compatible site. To allow reconstruct- ion of the building in question, or any other building on the site following its total destruction by fire, `would seem to prolong the life of the nonconforming use and, therefore, be contradictory to this relocation policy. It would also seem that an amendment to the Comprehensive Plan would have to be undertaken to rectify this inconsistency. The Standards for Variances seem quite clear when addressing variances regarding uses not permitted in a particular zoning district. The ordinance states: " The Board (Board of Adjustments and Appeals) 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 district where the affected person's land is located. " It is also felt that all four of the standards cannot be met, particularly Standard (d) which -states: "The granting f the variance will not be detrimental 9 to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel of land is located. Independent of the variance request to rebuild a nonconforming use, we have also looked at the applicant's request to rebuild the structure at setback and buffer requirements other than that contained in the current Zoning Ordinance. Again, the Standards for Variances must be applied to the situation and it is felt that the current setback and buffer requirements should not be varied ,from. A hard- ship in this case could not be demonstrated because the setbacks could be met as a matter of design. The situation would not be looked at as being unique and to build the building at other than these minimum requirements would be considered detrimental to the public welfare and injurious to other land or improvements in the ^ciy"bor"oo4 iii which the parcel Of lu ld is located. As requested, I have supplied copies of the Planning Commission and City Council minutes relating to two Planning Commission Applications reviewed in the fall of 1977 regarding a rezoning request and site and building plan review. We will be prepared to review these matters in more detail at Thursday evening's meeting at which time the City Attorney's report will be presented. -3- 3-22-79 i f j # I i a y, l { 9 I # i Application No. 77037 and The next item of business was consideration of Appli- cation No. 77037 and of Application No. 77038 submitted Application No. 77038 (Howe, Inc.) by Howe, Inc. The item was introduced by the Secretary who stated the applicant seeks rezoning, from R-1 (Jingle family Residential) to 1-2 (General industry), of the two lots immeaiately west of the Howe rerziiizer site. He explained that both properties, addressed as 3129 and 3135 - 49th Avenue North, are owned by Howe, Inc. and each contains a single family dwelling. The Secretary also explained the applicant proposes the erection of a new building on the north side of the site parallel to 49th Avenue North; the addition to the west end of the southerly building near the railroad right- of-way; and demolition and replacement of the building at the southeast portion of the site informally known as w the "potato shed." He stated also proposed are paving, curbing, and screening improvements including the in- stallation of the ordinance required buffer zone greenstrips. The Secretary commented that there are several non complying features of.the -present site; a major one being the lack of buffer zones or greenstrips rewired by the present ordinance wherever industrial uses abut residential uses. He stated also that there were a number of noncomplying building setbacks, unpaved and uncurbed-driving and parking areas, and unsodded areas. ' I ` The Secretary also reviewed the Comprehensive Plan guidelines for the Southwest Area and specifically for the subject property. The Plan states, at page 67: Recognize the existing fertilizer plant and other nonresidential uses located just off Osseo Road next to the Soo Line Railroad, but prohibit any further expansion of their operation. If at all feasible, the eventual relocation of these uses to more compatible sites should be undertaken thereby permitting a rounding out of the existing residential area. -9- 8-25-77 The Secretary explained that the other nonresidential . uses referred to had since been eliminated through Highway Department taking for purposes of creating an access to the Howe site. He also stated that prior to any rezoning, it would be necessary to review and revise or'eliminate the _ Comprehensive Plan recommendation which represented an established planning guideline for the neighbor- hood. He suggested that a key determination in disposing of the Application is whether the proposal represented an expansion of the operation or an up- grading of the present site. Chairman Scott reiterated the procedures for a public hearing and recognized Mr. Robert Kuebelbeck, an i architect representing the applicant, and Mr.•Bill Howe. Mr. Kuebelbeck commented on the proposed plans amplifying' the Secretary's remarks about the proposed construction and installation of greenstrips and buffer zones. He stated that if the applicant were permitted to utilize the two adjacent properties and upgrade the existing industrial operation, various benefits would be realized by the surrounding neighborhood and by the community, namely, the installation of the required buffer greenstrips and the paving, curbing and land- scaping of the site in general. Mr. Kuebelbeck also reviewed the history of the Howe operaion noting that it had been established for many years. His comments were broadened by Mr. Bill Howe who stated the present operation had expanded substantially, with the company's service area extending beyond the original local farming community. Mr. Howe stated the proposed structures were desired with the means to provide proper storage for existing equipment and vehicles and to allow an upgrading of the present operation with respect to warehousing and storage. Chairman Scott then announced that the public hearing Public Hearing Wotl1.1 be Cnnn for rnmmante from nprgpnc with interest :S: thc 3rpl y'at:..... ?•ti,. nL*off that a wrli'+orb response had been received from the Director of Planning and Development for the City of Minneapolis who supported the Comprehensive Plan language and recommended that j further expansion of the Howe, Inc. operation be pro- hibited. The letter was read and placed into the file. Chairman Scott then recognized Mr. Virgil Linn, 3112 - 49th Avenue North, who stated that he would present ! comments which he believed were representative of himself j and of others throughout•the neighborhood who had met w to discuss the proposal, in light of previous experiences with the applicant's operation. Mr. Linn cited a number of concerns including air pollution, odors, noise, vibrations, dust, unaesthetic outside storage and piling of debris, and truck traffic in the area. Mr. Linn continued that he and other neighbors objected to the proposed rezoning and the proposed expansion of the property. He stated that they believed that there had been a lack of cooperative attitude on the part of the applicant over the years, and that it was doubtful I the proposed benefits would outweigh the substantial i disadvantages experienced in the area as a result of the applicant's operation. Mr. Linn also stated concern with the possiblity of `- future expansion on the same grounds that the rezoning would allegedly result in an upgrading of the operation. • He also stated that he was concerned with the bulk storage of various chemicals and gasoline on the property, and he inquired as to what protective measures existed for residents of the area, should an industrial accident occur resulting in spillage or leaks. 8-25-77 -10 Mr. Linn concluded that perhaps the major concern over the years had been with the pollution which the appli- cant's efforts had failed to resolve, and he stated ` that the slides of the site which had been presented did not adequately reflect the pollution and odors generated by the operation. Mr. Linn submitted a summary of his comments to the Secretary to be placed in the file. Chairman Scott then -recognized the following Brooklyn Center residents who had been sent the required notice of public hearing: 3141, 3201, 3205, 3211 - 49th Avenue North; 4903 Brooklyn Boulevard; 4900, 4901, 4911, 4912, 4929, and 4928 Zenith Avenue North. Each expressed opposition to the proposed rezoning and pro- posed construction and cited a variety of concerns including air pollution, noise, unaesthetic outside i storage of debris and vehicles, and storage of fuel and chemicals. r Chairman Scott then recognized the following additional residents of Brooklyn Center: 3301, 3320, 3334, 3337 - 49th Avenue North; 4900, 4917, -5000 Abbott Avenue North; 4944 and 4948 Zenith Avenue North. Each ex- pressed opposition to the proposed rezoning and ex- pansion and. cited similar concerns relative to pol- lution and other activities related to the operation. Mrs. Scott then recognized Ms. Alice Rainville, 4th ! Ward Alderwoman from Minneapolis, who recited the i. concerns stated in the letter from the Director of Planning and Development. She also commented on the experience the City of Minneapolis had recently had with the Fry Roofing Company regarding air pollution in the area, and she suggested that the long-term com- plaints against Howe Fertilizer Company should be documented,and that the Minneapolis Pollution Control Department would be prepared to provide the document- ation they had developed over the years. She stated _ -..-- Fi Na O, YJ 4 representative UI the City U) MinrlCaaUllj,- �4 WUJ tier I C,_v,,uiierlUd l.i Ull that, the CVIIip rehErlsiVe rldil should not be amended and that the proposal should not be granted approval on the basis that the Plan had re- ceived extensive public input and represented sound planning. i i Chairman Scott then recognized the following residents from the City of Minneapolis: 812 - 42nd Avenue North; 4723, 4901, and 4904 Washburn Avenue North; 4726 and 4730 Xerxes Avenue North. Each stated opposition to the proposed rezoning and development plans citing w reasons of pollution and lack of improvements by the applicant over the years. . Chairman Scott then determined that all parties present who wished to speak had spoken, and she again recog- nized Mr. Virgil. Linn who reiterated several concerns and requested the Commission to recommend denial of the application. Close Public Hearing Motion by Commissioner Horan seconded by Commissioner Book to close the public hearing. The motion passed unanimously. j Chairman Scott then recognized Mr. Bill Howe who re- sponded to several of the concerns cited during the public hearing. He stated that it was the applicant's feeling the construction and site improvements compre- hended by the applications would correct most of the problems and would, for the most part, bring the operation within the existing zoning standards of the City. He also stated that there would be no increase in production levels; that the bulk storage liquids are of the no pressure/low pressure variety and were not considered hazardous; that there was no use of i • -11- 8-25-77 anhydrous ammonia; that the plant had recently passed an OSHA inspection with few minor problems; that there was an exterminator contracted to treat the premises for pests. and the plant does not operate 24 hours a day. Mr. Howe also commented that he or members of the firm were available for consultation with neighbors about existing problems; that improved pollution control equipment was planned,and that the firm was actively working on the design of such equipment to further diminish the emissions from the plant; and that the company was operating under a current permit issued by the. State Pollution Control Agency. .� Chairman Scott stated that a basic issue represented by the applications was the public welfare for both the immediate neighborhood and of the community. She stated that the basis for the Comprehensive Plan guide- line for the Southwest Neighborhood was clearly founded j on that concern and the apparent incompatibility of the fertilizer plant with the surrounding residential uses. She stated that, as with all rezoning matters, the item should be referred to the appropriate Neighborhood Advisory Group,and in this instance, the Southwest Neighborhood Advisory Group should be directed to con- sider the need to amend the Comprehensive Plan guide- line regarding the subject use as a prerequisite for amending the Zoning Ordinance. Chairman Scott stated that the City staff should be directed to secure input from appropriate related agencies, including the State Pollution Control Agency and City of Minneapolis offices regarding the pollution control efforts made by the applicant; any existing air pollution problems with the operation; and re- __ •__�j garding storage of chemicals and fuel on the site. She stated the applicant should also provide additional information r•eyarding Lhe r0iiuw4ig: LA 1. The types and amounts of chemicals stored on the premises. 2. The level of toxicity of the chemicals and the products. 3. Measures to be taken to eliminate unauthor- ized outside trash disposal and debris. 4. The intensity and-frequency of blasting w and other noise-producing activities related to the production. 5. Provision for emergency procedures including posting of after-hours telephone numbers on i the buildings. 6. Existing and proposed hours of operation. 7. A description of shipping and receiving activities, including the amount accomplished by over-the-road vehicles. Commissioner Horan suggested that as the information was obtained regarding air quality and current emissions, it should be made available to the Neighborhood Advisory Group. The Secretary responded that such information may not be currently available for review by the Ad- visory Group, but a summarization of that data should be available for the Commission. Commissioner Book agreed with the items of information required of the applicant by the Chairman and stated that he was particularly interested in the month-by-month hours of operation and the breakdown of use of rail and over-the-road vehicles for shipping and receiving. 8-25-77 -12- Commissioner Engdahl stated that at this point, the Commission should recognize that the applicant has rights to operate his plant within applicable laws and regulations and to make the request as provided in the i Zoning Ordinance. He stated that it was essential to gather more detailed information to reach a sound de- cision on this matter. The Acting City Manager stated that the Commissioners should carefully evaluate the Comprehensive Plan Ian- guage and particularly the reference to prohibition of ex ansion of the operation. He stated that it was v -to-T to determine whether the proposed construction in fact represents an expansion, versus an enclosure and upgrading of the existing operation primarily of j outside storage and parking activities. He cited the importance of clearly establishing the public good involved in realizing an upgrading of the premises as proposed, especially in the context that the applicant had stated there would be no increase in the production levels. He also explained that the applicant, under the present ordinance, could conduct { certain improvements now such as paving, and screening without the installation of the required buffer zone greenstrips. The Acting City Manager concluded there was a dilemma involved, namely, to not rezone would result in lesser I or no improvements to the present situation; whereas to rezone the adjacent property would allow for a sub- stantial improvement and upgrading of the present ; situation. jCommissioner Pierce inquired as to when the lest ex- pansion of the premises occurred, and Mr. Howe re- sponded that it was in the early 1960's. Several persons in the audience responded that there had been j many assurances made-at that time that a general up- _ grading of the site would occur and that experience had indicated nothing to that effect. IaDle Applications No. i7O37 ruiiuwiny rurther discussiui't there was njotiun by iuur and No. 77038 missioner Horan seconded by Commissioner Pierce to { (Howe, Inc.) table Applications No. 77037 and 77038 submitted by Howe, Inc. and to defer the rezoning and development request to the Southwest Neighborhood Advisory Group for review and comment; and, to specifically request that the Neighborhood Group review the proposals in the context of the Comprehensive Plan guidelines; and, further, to direct the staff and the applicant to de- velop the information cited by the Chairman. s s The motion passed unanimously. 1 i a • 1 I t I FS` 4 s i r . s The next item of business was review of Applications No. Applications No. 77037 . 77037 and No. 77038 submitted by Howe, Inc. The Secretary and No. 77038 explained that both applications were initially considered (Howe, Inc.) at the August 25, 1977 meeting and following the public hearing were tabled to permit the development of addi- tional information and to refer the rezoning request to the Southwest Neighborhood Advisory Group for review and comment. The Secretary reviewed the August 25, 1977 minutes and stated the applicant seeks rezoning, from R-1 to I-2, of the two lots immediately west of the Howe Fertilizer plant site. He explained that both properties are currently owned by Howe, Inc. and each contains a signle family dwelling. He stated the proposed rezoning is essential to the site and building plans submitted by the applicant so that ordinance required buffer zones and building setbacks can be met. He stated the rezoning request should be evaluated accord- ing to the recently approved Rezoning Evaluation Criteria to determine whether the request was consistent with the Comprehensive Plan which recommends a recognition of the existing fertilizer plant, but recommends that the City "prohibit any further expansion of their operation" He stated that the Plan also recommends that if at all feasible, the eventual relocation of the use to a more compatible site should be undertaken thereby permitting t a rounding out of the existing residential area. Q . The Secretary stated that a key determination was whether the applicant's proposal represented an "expansion of the operation" or whether it represented an "upgrading" _ of the existing operation as contended by the applicant. The Secretary stated that the Southwest Neighborhood Group had submitted a written recommendation to the file. He also stated that the applicant had submitted a written . response to a variety of concerns voiced by the Planning Commission at the August 25 meeting. He stated that research had teen conducted regarding compliance of the Howe operation :-:ith pollution control regulations and that the Minn__'Lta Pollution Control Agency had confirmed that Howe, Inc. was presently exceeding the capacity of the approved pollution control equipment, but was in the process of arranging for new equipment which presumably would bring the present operation into compliance with the regulations. The Secretary stated that the applicant had submitted a letter to the file indicating the proposed equipment could be installed by July, 1978. 11-10-77 r -6- The Secretary stated however, that the Pollution Control Agency had not responded to a letter asking for a verification of applicable pollution control regulations, and whether the proposed equipment would satisfy those regulations. ' t The Secretary presented slides of the site and briefly reviewed the proposed site and building plans. Chairman Scott recognized Mr. James Russell, an attornex representing Howe, Inc. who reviewed the applicant's proposal stating that the rezoning plan represents a °squaring off" of the Howe, Inc. site and that the proposed site improvements would be of benefit not only to the applicant, but to the immediate area. • He stated that the proposed construction and site - improvements were due to changes in the nature of the operation in terms of the type of materials handled and were also due to the impact of the Trunk Highway 152 bridge over the Soo Line Railroad tracks which was Imposed by the State Highway Department. He stated that bridge construction created a radically different access to the site, thereby creating certain problems and conflicts with respect to traffic and access to the plant. Mr. Russell stated that the proposed zoning would allow the creation of the ordinance required green strips and buffer zones which represented a substantial improvement where the heaviest industrial zoning abuts a single family residential neighborhood. He stated the basic purpose of the proposed buildings was for storage and that taken as a whole, the proposed up- grading would represent a substantial benefit to Howe, Inc. and to the community. He then concluded his presentation by showing a conceptual rendering of the building proposed on the north end of the site parallel to 49th Avenue North. Chairman Scott announced that the official public hearing had been held at the August 25 meeting, and she inquired whether anyone was present who desired to speak who had not had an opportunity to speak before. There being no response, she asked if anyone had any- thing further to add that had not been entered into the record. She recognzied Mr. Leo Hansen, 4903 Brooklyn Boulevard, who stated that with respect to traffic, substantial generation was due to the weigh-scale operations at the plant, some of which were related to the fertilizer q operation. He stated that in his opinion, there were potential access points to the plant other than from 49th Avenue North, one of which might be across Soo Line Railroad property to the south. He stated his second concern was with the continuing air pollution of the entire neighborhood. He stated the pollution had increased and had a detrimental effect on the quality of life throughout the neighborhood. He sug- gested that the resolution of the pollution problem should be a primary objective before any consideration is given to construction or site improvements. Chairman Scott also recognized Mr. Virgil Linn, 3112 49th. Avenue North, who offered some slides and photo- graphs of the Howe operation at different phases of their development. He stated that the pictures and slides presented did not fully represent the degree of the pollution problem which was not only visible, but was also detectable through smell and physical effects of the particulate fall-out. , Mr. Linn suggested that if the applicant was concerned in terms of upgrading the operation, the pollution should be resolved before any proposals to physically alter the plant site. -1- 11-10-77 I Mr. Linn stated that many of the proposed upgrading activities such as paving, screening, landscaping and correction of the pollution problem could have been and { could be accomplished by the appliant without the pro- posed rezoning and construction. He stated that in his opinion the applicant's performance in terms of assuring i compatibility with the residential neighborhood over j the years had been poor. i Chairman Scott also recognized the resident of 4900 Abbott Avenue North who stated he Vas concerned with the Secretary's comments that the Commission should make a finding whether the Howe application represented an up- grading of the existing facility or an expansion of the operation as cited in the Comprehensive Plan. He stated .• � that the City should be concerned with the effect the Howe operation was having upon the neighborhood and make a clear determination whether the proposal would resolve { that problem or whether it would intensify it. He also commented that the performance of the applicant in the past relative to upgrading the site and assuring com- patibility with the residential neighborhood had been less than satisfactory. He recommended that the South- west Neighborhood Advisory Group. recommendation should be ' strong direction to the Commission and to the City Council f that no expansion should be ronsidered until the applicant had actually performed a variety of possible upgrading activities on the site. He stated that one of his concerns was whether Howe, Inc. would actually perform the improve- i ments proposed in the pians, should they be approved. Chairman Scott responded that the item before the Commis- sion was a rezoning application and must be evaluated on its merits. She stated that while the operational aspects - of the plant were significant, especially as to the question of whether the proposed represented an expansion of the operation, the issue was whether the rezoning of additional land was warranted. She also explained that City when the . � y a pproved site and building plans the appii- cant is requirea to post a site improvement performance -- agreement and a supporting financial guarantee to assure I the completion of the approved site improvements. She 2; stated this requirement was not provided in the ordinance when Howe, Inc. had received previous approvals for development. An extensive discussion ensued and the Secretary again reviewed the Comprehensive Plan language and read the Southwest Neighborhood Advisory Grouo recommendation as I well as a petition submitted to the Southwest Neighborhood R I -Group by neighboring property owners. The Secretary also stated regarding the pollution concerns t that the Minnesota Pollution Control Agency regulations � f apply to Howe Fertilizer whether the subject zoning appli- cations were approved or not. He stated that it is his understanding if the applicant did not, in fact, comply with those regulations after reasonable time determined by the State Agency, then legal recourse was available to the Pollution Control Agency to enforce those regulations. Chairman Scott then recognized Mr. Bill Howe who briefly responded to several remarks made by members of'the audience regarding the type of chemicals used at the plant. Chairman Scott summarized the discussion stating that a finding must be made whether the proposed rezoning is consistent with the Comprehensive Plan, using the Rezoning Evaluation Criteria, and whether the proposal represents an expansion of the existing operation. 11-10-77 —8— a I In response to a request by Commissioner Horan, the Secretary read the rezoning evaluation policy and • review criteria adopted by the City Council in Resolution No. 77-167. The Secretary further commented that the rezoning application should be reviewed on i its merits as measured against the policy that the zoning should be consistent with the Comprehensive Plan and that it should not constitute "spot zoning" defined as a zoning decision which discriminates in favor of a particular landowner and does not relate to the Comprehensive Plan or to accepted planning principles. j Commissioner Horan Leaves Commissioner Horan left the table at 10:30 p.m. i Horan Returns Commissioner Horan returned at 10:35 p.m. Commissioner Pierce stated that it was important to consider the spirit and intent of.the"Comprehensive Plan which was concerned with assuring compati- "bility of the established residential use with f the industrial use. He stated that the industrial use hap an impact on the residential neighborhood and the pollution represented the major negative facet of that impact. He explained that if the pollution problem was reduced or eliminated, then the impact of the industrial use upon the neighborhood would be less. He continued, however, that the proposed improvements in the site and building-plans would not necessarily be a major improvement upon the compatibility since there was not assurance the pollution would be resolved. Commissioner Pierce stated that it was difficult to -distinguish between an "expansion of the operation" and an"upgrading of the operation." He stated that since the proposed upgrading and construction would lead to a more efficient operation, it could be reasonably expected that a more efficient operation would result in an expanded operation, thereby result- ing in potentially higher levels of pollution. He Stated that � in his mind t ;he ro;osal represented a l re negative impact upon the neighborhood. Commissioner Horan stated he shared Commission Pierce's concerns about the expansion and that it was not simply a matter of distinguishing between an "expansion" and an "upgrading." He stated that an expansion of the physical plant would result in an expansion of the operation and an intensification of the impact upon the neighborhood, which the Comprehensive Plan sought to diminish and/or phase out. Commissioner Book stated that while he appreciated the aesthetic benefits of the applicant's plans, the construction of a building addition and of a new building which would enlarge the existing facilities represented an expansion. He stated that the neighbor- hood should not be asked to take the risk that the proposed site improvements and building additions would resolve the negative impact of the operation upon the neighborhood. He stated that the applicant had the opportunity in the past and at the present time to upgrade the present operation and to enhance the compatibility, but little had been done until expansion of "the operation- was proposed. ; { Commissioner Jacobson stated that the applicant could have taken a variety of steps to upgrade the operation and eliminate many of the environmental problems in the area. She stated that the applicant has the opportunity and that until the existing operation was upgraded she could not support the proposed rezoning. She said that the proposal represented an expansion of the operation that was not essential to efforts by the owner to enhance the compatibility of the use with • the neighborhood. -9- 11-10-77 M { i j i Commissioner Engdahl stated that until the applicant could demonstrate that the existing problems could be f resolved, through actual site improvements and correct- ion of the pollution problem, it was difficult to find merit in the zoning proposal within the Comprehensive Plan Guidelines. He stated that he realized those ; improvements would represent an expense to the applicant, but that, until the neighborhood and the City saw that E the physical improvements resulted in d compatibility between the industrial use and residential use; it was I not reasonable to ask the neighborhood to assume further the risk that desired expansfon would result in resolution of ongoing problems. Following further discussion, there was motion by Com- Recommend Denial of ' missioner Book seconded by Commissioner Engdah: to Application. No. 77037 recommend denial of Application No. 77037 submitted by (Howe, Inc.) Howe,Inc. on the grounds that the proposal is not con- sistent and compatible with the surrounding use classi- fications; that the zoning proposal is not consistent I •' with the the Comprehensive Plan; and that the expansion of the zoning district is not warranted by the Compre- r hensive Plan or by the best interests of the community. The motion passed unanimously. Motion by Commissioner Engdahl seconded by Commissioner Recommend Denial of , Jacobson to recommend denial of Application No. Application No. 77038 77038 in that the proposed site and building plans are (Howe, Inc.) contingent upon the proposed rezoning. The motion passed unanimously. " F In other business the Secretary presented revised building Other Business exterior plans for the industrial building originally (Application No. 77053 approved under Application No. 77053 for JKH Construction. Revised Building Plans) He stated the design of the building remained the same, but there had been an alteration in the type of materials. 7 It was the consensus of the Planning Commission to approve the revised exterior finish for the proposed industrial building originally approved under Application No. 77053. In other business the Secretary reviewed several pending items stating they had been scheduled for the November 17 study meeting. In other business the Secretary responded to a question by Application No. 77034 Commissioner Jacobson as to the status of Application No. (Richard Rockstad) 77034 submitted by Richard Rockstad. He explained that the 3 City Council had tabled action on the request for a variance relative to the parking lot setback from Brooklyn Boulevard and had directed that the Planning Commission review the matter of setbacks along major thoroughfares as well as any I { w possible previous variance action in recognition of the highway taking on Brooklyn Boulevard. A brief discussion ensued and the Secretary stated that the { i matter could be considered further at the study session. I j In other businessit was the determination of the Commission that the December meeting dates should be December 8 and December 15. Motion by Commissioner Jacobson seconded by Commissioner Approve Minutes Engdahl to approve the minutes of the October 20, 1677 10-20-77 1 meeting as submitted. The motion passed unanimously. Y Notion by Commissioner Book seconded by Commissioner Horan Ajournment ` to adjourn the meeting. The motion passed unanimously. ` The Planning Commission meeting adjourned at 11:10 P.M. . . 11-10-77 -10- i j Chairman i j i t j ,i d j i :1 d r } , j Planning Commission The City Manager introduced the next item of business bn the f Application Nos. 77037 agenda, that of Planning Commission Application No. 77037 and 77038 (Howe, Inc.) and 77038 submitted by Howe, Inc. ! The Director of Planning and Inspection proceeded with a review of the two appl,cations and the Planning Commission action at its August 25 and November 10, 1977 meetings. He stated that Application No. 77037 was a request by the appli- cant for rezoning from R-1 (single family residential) to I-2 (general industry) of the two lots immediately west of the i —9— 11-14-77 Howe fertilizer site. He explained that both properties, addressed as 3129 and 3135 - 49th Avenue North, are owned by Howe, Inc, and each contains a single family dwelling. lie added the rezoning is to allow some construction on the ' two properties and that Application No: 77038 comprehends site and building plans for the erection of a new building on the north side of the site parallel to 49th Avenue North; the' • addition to the west end of the southerly building near the railroad right-of-way; and demolition and replacement of the building at the southwest portion of the site informally known as the "potato shed".. He further explained the applicant is also proposing paving, curbing, and screening improvements including the installation of the ordinance required buffer zone greenstrips. He commented there are several noncomplying features of the present site because of its existence prior to the adoption of the City's Compre- hensive Plan and zoning ordinances which include the • following: the lack of buffer zones or greenstrips wherever industrial uses abut residential uses; a number of non- complying building setbacks; unpaved and uncurbed driving and parking areas; and various unsodded areas. The Director of Planning and Inspection briefly reviewed the Comprehensive Plan guideline for the southwest area j which specifically states "recognize the existing fertilizer plant and other nonresidential uses located just off Osseo Road next to the Soo Line Railroad, but prohibit any further expansion of their operation. If at all feasible, the eventual relocation of these uses to more compatible sites should be undertaken thereby permitting a rounding out of the existing residential area." He stated a key determination with _ regard to this application is whether the proposal repre- sented an expansion of the operation or an ugrading of the present site. He reported prior to any rezoning, it would be necessary to review and revise or eliminate the Comore- #_ hensive Plan recommendation which represented an established planning guideline for the neighborhood if it were determined the proposal represented an expansion of the operation and was approved. He reported that the Planning Commission had held a public hearing on the rezoning request at their August 25, 1977 meeting. He briefly reviewed the comments made at that public hearing. He stated the Planning Com- mission had tabled further consideration of the two applications at its August 25 meeting and had referred the rezoning and development request to the Southwest Neighborhood Advisory Group for review and comment in the context of the Comprehen- sive Plan guidelines and had directed further staff review to secure input from appropriate related agencies, including the State Pollution Control Agency.and the City of Minneapolis regarding the pollution control efforts made by the applicant, the existence of any air pollution problems with the operation, and the matter of storage of chemicals and-fuel on the site. The Director of Planning and Inspection reported the South= west Neighborhood Advisory Group had submitted a written recommendation to the file in which they did not recommend approval of the rezoning request and did not favor revision of the Comprehensive Plan. He pointed out that the group could not clearly determine whether the request was to "upgrade" or "expand" the present operations. He further S 11-1.4-77 -10- reported the applicant had submitted a written response to a variety of concerns voiced by the Planning Commission and that research had been conducted regarding compliance of the Howe oPeration with pollution control regulations. He stated the Minnesota Pollution Control Agency had confirmed that Howe, Inc. was presently exceeding the capacity of the approved pollution control equipment, but was in the process of arranging for new equipment which presumably would.bring the present operation into compli- ance with the regulations. He explained the applicant's letter also indicated the proposed equipment would be installed by July, 1978. He added that a letter had been sent to the Minnesota Pollution Control Agency asking for written verification of whether or not Howe, Inc, complied with pollution control regulations, and that to date no response has been received. The Director of Planning and Inspection next reviewed a transparency showing the location and configuration of the property in question and various slides depicting the area, and a brief discussion ensued relative to the application. He also reviewed the site and building plans relating to the proposed improvements and noted that the Planning Commis- sion had not reviewed these plans in detail because of their recommendation to deny the rezoning request. i; Mayor Cohen recognized Mr. Bill Howe, Vice President of Howe Fertilizer- introduced Mr. James Russell, an attorney representing Howe, Inc. Mr. Russell commented on the letter from the Southwest Neighborhood Advisory Group which recommended denial of the application and quoted the -� following from that letter; "To upgrade is desirable, if it is part of a plan which improves the visual appearance of the entire Plant and properly; there has been little evidence "VA1Av,tbuaLeu over the past ZO years or so that the visual appearance and enhancement of the community has weighed 'on the minds of Howe, Inc, management." He stated this attitude and feeling seemed to be prevalent also in the Planning Commission's review of the application and its subsequent recommendation for denial. He stated in summary the criticism expressed is based on a dust problem from traffic utilizing the facility, the visual aesthetics of the plant to the neighboring property owners, various piles of material that are stored on the property which are also 1 visibly unattractive to the neighboring property owners, the 1 feeling there is a lack of concern for the neighborhood and neighboring property owners on the part of Howe, Inc. and j that these are the primary reasons for denial of the applica- tion. He added it is unfortunate there is a lack of trust on the part of the neighboring property owners and that Howe, Inc. is not believed in this case. He stated what is pro- i posed for a solution to these dust, pollution, and debris 1 problems is tied into the applicant's request for rezoning. He pointed out with approval of these applications the i -problems expressed by the neighboring property owners can be addressed. Mr. Russell introduced Bill Kranz, a general contractor, and Bob Kuebelbeck, an architect, retained by Howe, Inc. to i develop plans for upgrading the site. Mr. Kranz reviewed an i -11- 11-14-77 aerial photo of the Howe, Inc, property taken in 1971 and commented on bridge construction that had taken place on Osseo Road which forced Howe, Inc. to use 49th Avenue North for ingress and egress purposes to the Howe property. Mr. Kranz stated the proposals to upgrade the plant would be in line with City requirements and that it is further pro- posed that the "potato. shed" be removed from the site and that a new building of "top of the line quality" be constructed. He also stated the proposal comprehends the building of a ` I machine shed to house some of the equipment that is presently stored outside. Mr. Kuebelbeck commented on the fact the building erected for storage would also serve as both a visual and noise buffer between the property and the neighboring property and would address a number of the problems expressed by the'neighbors regarding the visual effects of the site. He added the initial building would also serve as a buffer and would screen the Howe plant both visually and audibly from 49th Avenue North. He added there would be a 100 foot buffer requirement and the applicant also proposes an 8 foot high fence to screen the area. Mr. Kranz added the proposal comprehends the removal of two houses at 3129 and 3135 - 49th Avenue North. He explained the total cost of the project is estimated at 7 approximately $500,000 and that Mr. Howe is proposing grass, curb and gutter, blacktop and other visual improve- ments at a cost of approximately $100,000. He stated he felt it was a valid proposal and indicates Mr. Howe's sincerity to improve his plant for the benefit of himself Jas well as the neighborhood. I In response to an inquiry by Councilman Kuefler Mr. Kranz j stated the main reason for the expansion of one of the --� buildings will be to house new pollution control equipment and the expansion is not for the purpose of increasing nro luctinn nr nJant rararity, I In response to another inquiry by Councilman'Kuefler, the I Director of Planning and Inspection stated a portion of one ` of the buildings would be located on the rezoned property. Mr. Russell stated there is some doubt in the minds of the ` neighbors living in the vicinity of the Howe plant as to the i faith of the Howes in terms of addressing some of the problems associated with the plant. He then reviewed the efforts made by Howe, Inc. relating to pollution control equipment since 1971. He pointed out the total expenditure for Howe, Inc. in terms of pollution control equipment since 1971 has been over $230,000. He added Howe, Inc. has been some- what of a pioneer in pollution control rather than a laggard and cited various examples. He added according to the Minnesota Pollution Control Agency, Howe, Inc. has done everything they are required to do to meet pollution control regulations. Mayor Cohen then recognized Mr. R. W. Pearson, of Pearson I & Associates, Inc., an engineering firm retained by Howe, Inc. j which specializes in pollution control equipment. Mr. Pearson reviewed the type of pollution control equipment that has been purchased by Howe, Inc. toaddress the pollution problems r. associated with the operation. He stated Howe, Inc. has purchased good pollution control equipment and their plans include upgrading their present scrubber which had been purchased in 1974. He noted the Venturi scrubber to be purchased will increase the efficiency for controlling pollu- tion and will be installed by approximately July, 1978. 11-14-77 -12- A discussion ensued between Mr. Pearson and the City . Council relating to pollution control equipment, in particular ` the equipment used at the site and new equipment proposed for the site. In response to an inquiry by Councilman Lhotka, Mr. Pearson stated the reason Howe, Inc. is purchasing new equipment is to address complaints that there are ammonia smells in the area emanating from the plant. He added, by ' upgrading the Venturi scrubber the efficiency of that piece of equipment would be increased by approximately 25 - 30% i which would make the system about 90 - 95% efficient. He concluded his comments by stating he feels the equipment Proposed to be installed by Howe, Inc. is the best possible ` j system available at this time. • i t Public Hearing Mayor Cohen opened the meeting for purposes of a public hearing relating to Planning Commission Application No. 77037. Mayor Cohen recognized Mary Dodds, 4730 Xerxes Avenue North, Minneapolis, who stated she represents persons living on Washburn, Xerxes, and Vincent Avenues In Minneapolis who are located on the south side of Howe, Inc. She stated although representatives of Howe, Inc. claim they have done much to address the pollution problems associated with the operation, there is still much white dust and the smell of ammonia in the air. She claimed there have been five dynarkite blasts within the past week from Howe, Inc. and the operation often disturbs the neighborhood at t night. She also complained about truck traffic in her neigh- borhood because of Howe, Inc. and questioned why the operation would put so much money into upgrading its opera- tion if it did not intend to expand its operation. ` Virgil Linn, 3112 - 49th Avenue North, spoke against approval of the application. He stated although representatives of r _ Howe, Inc. claim they have done much to address the pollu- tion problems associated with the operation, he feels little has been accomplished. He cited nunierouc examples of uusL and ammonia smells coming from the plant and added he felt the only reason the company has installed any pollution control equipment is due to pressure from the PCA rather than to help out the neighborhood as was indicated. He concluded by stating he could not support the application in light of the Past operation and did not feel it would be worthwhile for the neighborhood to have an expansion of the plant without first addressing the pollution problems. i r Susan Forsmark, 4944 Zenith Avenue North, complained about ' the pollution emanating from Howe, Inc. and stated she would, s move if expansion of the plant was permitted. J Mr, Murto, 3205 - 49th Avenue North, stated he has heard i fertilizer chemicals are highly explosive and the storage of these chemicals might be dangerous to the neighborhood. He added based upon-the amount of air pollution that has �- come from the Howe operation, he feels it is possible the operation has bypassed its pollution control equipment on occasion. Mrs. Murto, 3205 -49th Avenue North, spoke against approv:: of the application and added the location of the Howe plant 1 has a negative effect on the value of their property. i i -13- 11-14-77 Leo Hanson, 4903 Brooklyn Boulevard, commented on floating particles that come from the Howe plant and stated this pollution has a detrimental effect on the neighborhood. He stated that he felt the proposal represented an expansion of the plant rather than an upgrading of the plant as indicated by the applicant and the pollution problems associated with Howe, Inc. should be cleaned up regardless of the applicant's proposals for construction or site improvements. Larry Butler, 3201 49th Avenue North, concurred the pollution problems should be solved prior to allowing any expansion of the plant. Bill Johnson, 4928 Zenith Avenue North, stated he has resided at his current address since 1951 and it was his opinion the pollution problems from Howe, Inc, have not gotten better over time. He expressed the opinion that to permit expansion of Howe, Inc. would only cause more and bigger pollution problems for the area. He spoke against approval of the appli- cation. Mrs. Linn, 3112 - 49th Avenue North, stated Mr. Howe's attorney had indicated there is a lack of faith on the part of the neighbors regarding Mr. Howe's intentions. She stated Mr. Howe has never spoke to persons in the neighborhood regarding the problems associated with the plant and seems to have no concern for the neighborhood. She stated perhaps the neighborhood is shortchanging itself by opposing expansion of the plant and possible site improvements, but she felt the pollution problems associated with the plant should be addressed prior to approving any expansion of Howe, Inc. Councilman Fignar left the table at 10:57 p.m. and returned at 10:58 A.m. I -'- ' ,+r__.4 •1n, n om.. r Xc;:t _13_. _ _. approval. wuFat V.w�++, z.iva -t- -i+..... ..v.ui, a+�uv vl+yUu.. :1 jt�+:7Vcaa —' of the application and commented on the ammonia smell that emanates from the operation. He also expressed concern regarding a black substance that is stored on the Howe pro- perty and stated children often play in this material. He too stated he felt the pollution problems should be addressed prior to permitting any expansion of the Howe plant. Councilman Britts requested further information or clarification relating to various comments that had been made. He inquired �1 if the plant operates 24 hours a day, if Howe, Inc. was under any court order to clean up its operation, and whether or not the substance in the air, complained about a number of the neighbors, is really ammonia. The City Attorney responded he is not familiar with any court orders pertaining to Howe, Inc. Councilman Kuefler inquired of Mr. Linn if the dust mentioned is yard dust or if it is plant dust. Mr. Linn responded there is road dust that emanates from the plant but there is also a dust that emanates from the plant as well. He added just this afternoon there was a cloud of dust which came from the Howe plant. �- Mayor Cohen again recognized Mr. Russell, attorney for the applicant, who stated he was not aware of any court order relating to Howe, Inc. but explained there had been a combined City of Minneapolis/City of Brooklyn Center suit in 1957 against Howe, Inc. He stated the case was tried and many of the same charges stated this evening were made at that time. He explained that a judgment 11-14-77 -14- was reached which said there wds not sufficient evidence Howe, Inc. was causing damage to surrounding properties. He added there was no court order and there has been no subsequent suit. He stated Howe, Inc. has an operating permit from the Pollution Control Agency and has recently passed OSHA 'inspections. He pointed out he does not doubt the sincerity of the comments made by the neighbors but emphasized a judge could not determine that Howe, Inc. was the cause of these problems. Mr. Russell stated the site of Howe, Inc. is appropriately i zoned industrial and the plant has been at that location since 1945. He added there will always be some conflict, as is ' in the case, when there is residentially zoned property and j industrially zoned property in close proximity. He further stated Howe, Inc. is attempting to alleviate as many of these problems as possible and the rezoning and subsequent upgrading of the site will have a positive impact on the neighborhood. Mayor Cohen recognized Mr. Bill Howe, who stated he felt the rezoning action would resolve a number of the problems that have been raised this evening,'and the upgrading of the site would be for the betterment of the neighborhood as well as the entire community. In response to a number of questions or statements made by neighboring property owners, Mr. Howe stated the plant does not run 24 hours a day, they have a PCA permit to operate, have passed recent OSHA Inspections and the black material sometimes stored on the site is a cinder and a slag material that is harmless. He added the pollution control equipment they propose to install is the best equipment available and will address the air pollution and other problems cited. He further stated his organization is undertaking these improvements of their own free accord and they are willing to take the necessary stepe to correct thpsp nrnh)crrl , A lengthy discussion ensued relative to the application and the various pollution problems associated with the Howe, Inc. operation. Councilman Lhotka noted it had been pointed out dynamiting occurs at the plant. He inquired as to the frequency and the reason for such dynamiting. Mr. Howe responded in storing some materials used for fertilizer there is often an overhang created which does.not come down as the material is removed requiring blasting to correct. He pointed out that they have obtained a permit for such blasting. He added the frequency is difficult to determine and in some j cases they are required to do it more often than others. He pointed out that Howe, Inc. uses less than 300 pounds of dynamite per year, which is not considered excessive. Also, in response to an inquiry by Councilman Lhotka, Mr. Howe stated the chemicals stored or used in their operation are not, if properly used, explosive. Further discussion ensued relative to the hours of operation at the plant with Mr. Howe explaining on occasion, approxi- mately two or three evenings a year, trucks will be unloaded I in the evening hours. Close Public Hearing Following further discussion there was a motion by Councilmar Fignar and seconded by Councilman Britts to close the public hearing relating to Planning Commission Application No. 7703'., Voting in favor: Mayor Cohen, Councilmen Britts, Kuefler, Fignar, and Lhotka. Voting against: none. The motion passed unanimously. i -15- 11-14-77 Mayor Cohen distributed copies of an article that had ` appeared in the Brooklyn Center Post on May 4, 1972, which reported Howe, Inc. was at the time installing pollution control equipment that was expected to elimi- nate the strong ammonia odors and other emissions which were prevalent in the air at the time. He stated it was obvious, based on the comments received this evening, • the equipment installed in 1972 had not fully addressed the air pollution problems. Councilman Kuefler left the table at 11:30 p.m. Mayor Cohen continued by stating the City has been ' handcuffed with regard to air pollution problems until ' the formulation of the Pollution Control Agency which now regulates such activity. He further stated he felt the Pollution Control Agency should respond to matters put before them. He also stated he was also concerned about comments indicating that Howe, Inc. was dynamiting in the area and added he felt a definite monitoring system should be established to determine the desirability of such activities. He commented he did not feel he could support approval of this application at this time. Councilman Kuefler returned to the table at 11:34 p.m. Mayor Cohen also stated he would like to see a licensing procedure established which would govern, to some extent, the operational aspects of such industries as Howe's. He also commented on complaints regarding vibrations emanating from the Howe site and stated the present City ordinance addresses such nuisances with regard to industrial property in the industrial park, and indicated he felt this should also be so with regard to the Howe plant. He concluded by stating he feit these issues should be addressed prior to consideration of the rezoning request. Councilman Fignar stated he felt there were two separate issues with regard to these applications, one being the rezoning request and the other being the complaints registered by persons living in the immediate area of the Howe plant with regard to air pollu- tion and other problems. He further stated he did not feel much consideration has been given to the merits of the rezoning pro- posal but rather to the other problems. He added he too felt the Minnesota Pollution Control Agency should address the pollution problems that have been cited. Regarding the concerns raised about the Howe's lack of concern for site improvements in the past, Councilman Fignar stated the City presently requires site improvement financial guarantees to assure the completion of various improvements and he felt this would be leverage to assure compliance if the site improvements were approved. He commented he felt the - proposed improvements would be beneficial to the neighbor- hood and the possibility exists these improvements would not be realized if the rezoning was not accomplished. He suggested perhaps the City Council should give some incentive to Howe, Inca to go ahead with these improvements. He again indicated there is also a need to address the pollution problems cited. Mayor Cohen inquired if approval of the rezoning request would require an amendment to the Comprehensive Plan. The Director of Planning and Inspection responded the City Council should make a determination as to whether the proposed rezoning and related site and building plans represent an expansion of the 11-14-77 -16- operation or an upgrading of the existing operation. He stated if it is determined it is an expansion the Comprehensive Plan would have to be modified. He added that a key determination, in this matter is whether the benefits derived from bringing the Howe operation into compliance with minimum ordinance standards is more in the public interest than achieving a long term planning goal of phasing out the operation by limiting or even prohibiting expansion such as that proposed. He ex- plained the Southwest Neighborhood Advisory Group, during their review of the request, was not able to determine whether it was ugrading or expansion that was being proposed. He added the Planning Commission had determined the proposal i represented an expansion not warranted by the Comprehensive Plan or by the best interests of the community. Councilman Fignar suggested perhaps a compromise was in E order stating to not rezone might result in lesser or no improve ments to the present situation, where a favorable rezoning might allow for substantial improvement and an upgrading of the present situation which would have a positive effect on the neighborhood as well as the community. Councilman Kuefler stated he felt the improvements proposed by the applicant would be of benefit to the neighborhood but the neighbors are very skeptical as to whether or not these improvements would be realized. He further stated one of I the rezoning criteria is that a potential rezoning should not j discriminate in favor of a particular land owner. He com- mented he felt in this case an action to rezone the property could be interpreted as discriminating in favor of a particular land owner because of the lack of support in the neighborhood for such a rezoning. He added he also felt the neighborhood _ would support a rezoning if they were convinced it would I benefit them, and perhaps the neighborhood could support this application and the subsequent improvements if there was further communication and understanding between the appli- cant and the neighborhood. He concluded by stating at this time the differences between the applicant and the neighbor- hood have not been resolved and that he could not support the rezoning request until there was such a resolution. In response to an inquiry by Councilman Lhotka, the Director of Planning and Inspection stated generally the site improve- q ment requirements in the present ordinance do not apply to the Howe site because it was in existence prior to the ordi- nance. He added with a change in use or the addition of buildings these site improvements can be required. He y pointed out this should not be confused with the fact that Howe must comply with pollution control regulations or other such operational requirements. He explained the zoning { control is over site improvements and is not necessarily related to the operational aspects of the plant. In response to an inquiry by Councilman Fignar, the Director of Planning and Inspection stated the Pollution Control Agenc, has informed him verbally Howe, Inc. does not meet present PCA regulations but they are in the process of complying with these regulations. He pointed out he has requested the Pollution Control Agency to verify this fact in writing, but they have not as yet done so. -17- 11-41-77 { Councilman Britts stated he felt the plans for improving the site are well drawn and could be of benefit to the neighborhood as well as the community. He further stated, however, the air pollution problems associated with the operation are still in existence and are still a nuisance to the neighborhood. He expressed the opinion he had hoped the problems between the ' y applicant and the neighborhood could have been worked out so as to show a unified support for the proposal. He explained there has been some effort put forth by Howe to address a number j of the problems associated with the operation but from the standpoint of working with the neighborhood not much has been accomplished. He further stated it was his opinion an attempt on the part of the applicant to address the concerns of the neigh- ' boyhood would indicate an effort on his part to resolve the matter. • i He added until there is a general consensus that the proposals would be of benefit to the area he could not support the applica- tions. Councilman Lhotka commented that basically there is no coopera- tion between the company and the neighboring residents to solve the problems indicated. He stated he was concerned with the j effect the Howe operation has on the residential area and he would welcome the comments from the Pollution Control Agency relative to the Howe operation. He added based on the comments made this evening there does not seem to have been an attempt ito establish lines of communications with the neighborhood. He explained he felt the proposals for improving the area were beneficial but he was concerned because of the lack of support for the proposals by neighboring property owners. He concluded by stating he too would like to see the applicant and the neigh- bors get together and resolve their differences and that he could not support the applications under the present circumstances. i' Mayor Cohen stated the City Council could not force the appli- cant and the neighboring property owners to get together in an t attempt to resolve hair differences but the City Council Could taine iurtner consiaeration of the applications to give the parties an opportunity to resolve their differences. He stated he felt there was a need for a response from the Pollution Control Agency with regard to whether or not the Howe opera- tion is in compliance with PCA regulations and suggested someone from the PCA be invited to the next City Council meeting to discuss this matter. He added he would like to see further research into the matter of requiring a stack monitoring device for the Howe opeartion which could be monitored by the police department and would indicate when air emissions at the plant reach dangerous levels. He further stated he would also like further research into the possibility of licensing such industries that emit high levels of air pollution or discharge and he would also like further information with regard to Howe's dynamiting permit and whether or not ordinance requirements pertaining to noise and vibrations apply to the Howe site. Councilman Fignar stated it seems the City Council is indicating if these matters can be resolved the appli- cant's proposals might be looked upon more favorably. Following further discussion there was a motion by Action Continuing Councilman Kuefler and seconded by Councilman Fignar Planning Comr.-Assion to continue consideration of Planning Commission Appli- Application Nos. 77037 cation Nos. 77037 and 77038 submitted by Howe, Inc. & 77038 (Howe, Inc.) until the November 28, 1977 City Council meeting to give the applicant and the neighborhood an opportunity 11-14-77 -18- - to resolve matters of disagreement and for the City to further research and review the following items as they pertain to this application: 1. A response from the Minnesota Pollution Control Agenc,; regarding whether or not Howe, Inc. complies with PCA air quality regulations and, if possible, have • PCA representatives available for the November 28, 1977 City Council meeting. # a • 2. The possibility of requiring a stack monitoring device at Howe, Inc. which could be monitored by the police department and would indicate when air emissions from the plant reach dangerous levels. l 3. The desirability of permitting dynamiting at the Howe • plant.j J t 4. Whether or not ordinance requirements pertaining to noise and vibrations in industrial areas pertain to Howe, Inc. S. The feasibility of a licensing procedure relating to j industries that emit high levels of air pollution or discharge, similar to that of the City of Minneapolis. Voting in favor: Mayor Cohen, Councilmen Britts, Kuefler, Fignar, and Lhotka. Voting against: none. The motion i 1 passed unanimously. t i I x 9 s i t i Mayor Cohen reported Planning Commission Application Planning Commission Nos. 77037 and 77038 submitted by Bowe, Inc. had been Application No. 77037 continued by the City Council on November 14, 1977 to and No. 77038 (Howe, give the applicant and the neighborhood an opportunity Inc.) to discuss matters of disagreement and for the staff to further research and review a number of items that { pertain to these applications. He explained a public . hearing had been held by the City Council-on November 14 and the public hearing had been closed. He further explained representatives of the Minnesota Pollution Control Agency (MPCA) are in attendance this evening to respond to various questions regarding MPCA air quality standards and the Howe operation. He stated a number of reports have been prepared which address other matters raised by the Council at the November 14 meeting. He further stated following the various presenta- tions the meeting will again be opened for various comments ' on new issues that might be raised but the public hearing would be limited to only new issues due to the already extensive comments received regarding old issues at the November 14 meeting. The City Manager reviewed a report relating to various questions which were raised at the last City Council meeting regarding the two applications. He reported the Council had inquired if the Howe operation presently complies with MPCA air quality standards. He stated it is our understanding this operation currently does not comply with these air quality standards but is taking steps to add equipment which will bring them toward compliance. He explained only testing after installation of this equip- _.._ ment will confirm whether or not they are in compliance and that the MPCA representatives present this evening will address this matter in more detail. The City Manager l explained the Council had also requested further research i_ J to determine if "stack" monitoring devices could be installed at Howe, Inc. to monitor pollution from the site. He reported particulate matter detection is available and can be installed to monitor levels of pollution. However, no such device exists to monitor odors. He explained to monitor odors requires hand taken samples by experienced personnel with these samples analyzed and submitted to a panel of people for a smell test. Regarding the request for information pertaining to the desirability of permitting dynamiting at A the Howe plant, the City Manager stated Howe, Inc. currently has a State dynamiting permit, approved by the Brooklyn Center police chief, which expires in May, 1978. He added while it might be possible to use this State , permit process to place certain limitations on the use of dynamiting at the facility, it may not be possible through this permit process to eliminate its use. He pointed out that it may be possible, through a licensing process, to control the deleterious effects of its use through control of noise and vibrations from the facility. The City Manager also reported current noise and vibration requirements in the City ordinances do pertain to the Howe operation and have been used to address certain vibration problems from some of their equipment. He added the current regulations would be more effective if updated and a moniotoring system were established as part of the licensing of the Howe operation. He further reported a licensing procedure relating to industries emitting high levels of air -2 - 11 77 - -8 8 pollution or discharge is feasible and is recommended. He explained that the MPCA has stated that the most effective way of enforcing MPCA regulations is for a City to adopt these regulations as part of a municipal ordinance. He pointed out that the City could not establish an ordinance that exceeds MPCA requirements and that it should also be understood that compliance with these regulations may not • eliminate the odor in the air around the Howe operation to a level acceptable to the neighborhood. He added that he has submitted a copy of a licensing ordinance from the City of New Brighton which is of the type which would fit E:ooklyn Center's needs as they relate to the Howe operation and othe offensive type uses. ' The City Manager stated it is recommended that the Howe rezoning request be denied. He explained although there are many reasons relating to the pollution issue which can enter into this recommendation, the recommendation is baser- primarily on the Comprehensive Guide Plan and the zoning- ordinance. He further explained the Comprehensive Plan calls specifically for "no expansion" and "if at all possible, eventual relocation" of the operation. He stated to apprcve the Howe request would allow expansion of the site and its physical facilities and also through approving of this invest ment on the site, extend the economic life of the Howe facility at its present location. He pointed out air pollutior. concerns can be addressed separately through the enforce- ment of MPCA regulations, monitoring and the establishment of licensing requirements. He added visual pollution, possibly some air pollution and traffic related poll-,:tion in the area can only be completely solved through the eventual relocation of the Howe facility and, thus, the recommendzti for denial of the applications. 7 The City Manager stated a meeting had been held +ah IiPC=. officials and that Mr. Jay Heffern, Assistant Executive Director of the Minnesota Pollution Control Agency, and Robert Meyers of the Enforcement Section, Divisior. of Air Quality, Minnesota Pollution Control Agency are present to discuss with the City Council the matter of Howe, Inc. and MPCA regulations. Mayor Cohen recognized Jay Heffern, who stated basicall_� there are two distinquishable issues relating to the Howe operation, one being the land use or zoning issue which the MPCA has no statutory or regulatory authority over and the other issue deals with MPCA criteria, rules and compli- ance. He stated that the MPCA issues two types of permits one an installation permit and the other an operatir.: permit. He explained that with regards to the installation permit an applicant requests permission to install various equip- ment to address certain pollution problems and that the Iv,?C would review their plans. If the plans meet various require ments an installation permit would be issued, and upon completion of the installation, the MPCA would req-,ire various testing and inspections to determine compliance wit applicable MPCA regulations regarding odors, visible emis- sions, dust and particulate emissions and noise. e. Mr. Heffern stated at the time pollution control equipment was installed at the Howe operation approximately three to four years ago, the MPCA felt that Howe was in compliance with various regulations and an operating permit was issued He pointed out that since that time there have been some questions as to whether or not they are still in compliance 1 i -9- 11-28-77 j _— with current MPCA regulations and whether or not their present ! pollution control equipment is efficient. He pointed out that the I enforcement section/surveillance group of the MPCA has been maintaining a surveillance program of unscheduled inspections and making observations of Howe, Inc. and its present operation. He added that their records indicate that since the installation { of a scrubber system citizen complaints still are received regarding orders and particulate emissions. He explained that the MPCA has talked with company officials regarding these concerns and has I 1 requested that they investigate further modifications of their present pollution control equipment, as well as installing additional equipment. He added the company has applied for an installation permit to install a fan to increase the f control efficiency of the Venturi scrubber and that the • company believes the proposed equipment and operational _1 changes will be a further step in reducing emissions from the facility. He added MPCA feels there is a need for a I test program upon the completion of the installation of the f j recommended equipment to see if the operation meets the standards prior to issuing an operating permit for Howe, Inc. He pointed out that the schedule indicates that the design jand installation of the equipment for Howe will not be ! completed until July, 1978, and that their tests are scheduled to be completed by August 15, 1978. ! Mr. Heffern then commented regarding monitoring equipment , for the Howe operation. He stated there is no unit capable 1 of monitoring odor emissions on a continuous basis but that presently there is an opacity monitor that has been certified for use by the Federal Environmental Protection Agency. He indicated that this unit indicates when opacity I levels are being exceeded and the cost of such a unit Is s approximately $20,000. Ile added that the only installations of this type at the present time are in large power plant stacks, such as those currently being installed in NSP facilities. I Mr. Heffern reported the MPCA, in dealing with compliance problems, depends heavily upon stipulation agreements with companies operating various plants that emit high levels of pollution. He pointed out the stipulation agreement is I basically an agreement which determines a schedule for an operation to come into compliance with MPCA regulations. He added the agreement involves a schedule for installing equipment, provisions for testing that equipment and determining whether or not the operation meets MPCA R I standards prior to issuing operating permits for the opera- tion. Mr. Heffern further stated MPCA is not the only agency in the State of Minnesota which can be involved in enforcing pollution control regulations. He pointed out t j that local governments should also be involved with this j enforcing aspect and should work closely together with ` the MPCA to do a better job in a cooperative effort. He added licensing of such operations by local governments is an alternative way to deal with enforcement problems. He reiterated the importance of local government working ': closely with the MPCA in addressing various pollution problems and dealing with operations that cause these problems. Councilman Kuefler inquired as to what options the MPCA has if an operation does not meet current standards. Mr. Heffern responded that the MPCA has the statutory authority to go to court to gain compliance with its 11-28-77 -10- regulations but that they do not always utilize this tool. j Rather, they consider a number of factors such as how severe the problem is, how cooperative the company is in attempting tp address these problems, the ability of the /company to provide solutions for these problems and also the attitude of the company. He pointed out that the MPCA prefers to use administrative tools such as the stipulation agreement to gain compliance with its regulations and generally does not seek court action unless it is the only alternative available. He added that if a stipulation agree- ment is executed, the MPCA agrees that it will not take a company to court over violation of MPCA regulations but ! rather will attempt to establish a schedule for installing new equipment to meet the problem, testing that equipment, monitoring the results and making an evaluation prior to considering whether or not an operating permit should be l issued. i Following further discussion between Mr. Heffern and the City Council, Mayor Cohen thanked Mr. Heffern for his appearance before the City Council. Mayor Cohen referred to a letter sent to the Minnesota Pollution Control Agency from State Senator Edward G. Geart•. who represents North Minneapolis, which urged the Minne- sota Pollution Control Agency to lend its good offices with respect to addressing the pollution control issues contained in the Howe request and also requesting a representative of the MPCA attend the Brooklyn Center City Council meetinc on November 28, 1977. The Mayor requested a copy of the letter be submitted to the file. - t The City Manager commented he realizes the Howe proposal e+rfli make the area nicer iuoking but that there still would be veaiuus visual, air and traffic related pollution problems in the area. He added approval of the applications would extend the economic life of the Howe facility and would further the time of its existence which would be contrary to the Comprehensive Plan. He stated the recommendation to deny the applications is based primarily on land use princi les and its relation to the City's Comprehensive Plan and zoning ordinance. He pointed out that he concurs with the recommendation of the MPCA that the Howe operation should be licensed. He explained that the Director of Planning and w Inspection is prepared to review in more depth the land use considerations relating to the two applications in question. 1 The Director of Planning and Inspection reported based on questions raised by the City Council at its last meeting, specific analysis in terms of the language of the 1966 ` Comprehensive Plan and the zoning ordinance which was initially adopted in 1968 as an implementation of the Com- prehenstve Plan was undertaken. He pointed out the importance of the zoning ordinance cannot be overlooked ! because it is an implementation tool for the Comprehensive Plan. He stated the Comprehensive Plan at page 67 states, ' "recognize the existing fertilizer plant and other nonresi- dential uses located just off Osseo Road next to the Soo Line Railroad, but prohibit any further expansion of their operation. If at all feasible, the eventual relocation of the uses to more compatible sites should be undertaken thereby permitting a rounding out of the existing residential area." He explained the other nonresidential uses referred -11- 11-28-77 - to in the Comprehensive Plan were eliminated in the 1970 condemnation action by the Minnesota Highway Department ' in preparation for the construction of the now built Soo Line Railroad overpass. The Director of Planning and Inspection stated the 'status of the zoning of the Howe property prior to 1968 has been inten- sively researched and that the language in the present zoning ordinance and its relationship to the quite explicit language of the 1966 Comprehensive Plan has also been carefully analyzed. He added in virtually all respects, the present zoning ordinance has been found to be compatible with the guide recommendations of the Comprehensive Plan,or, in ^� other words, the Planning Commission and the City Council �! in 1968 were cognizant of the Comprehensive Plan guidelines as the zoning of the entire City was reviewed. He reported it is apparent from the research that the 1968 and present zoning ordinance treat the fertilizer manufacturing operation as a "nonconforming use". He stated that Section 35-331 of the City Ordinances lists the permitted and special uses in the I-2 zoning districts and that none of the permitted or special uses include fertilizer manufacturing, warehousing, or distribu- tion and that none of the specifically listed uses appear to include such operations. He pointed out this section does i include a sentence which appears in all.of the zoning district sections which permits "other uses similar in nature to the j aforementioned uses, as determined by the City Council." G ` j He explained that there has been no specific finding by the City Council since 1968 that a fertilizer plant is similar in nature to the listed industrial activities in the City's zoning i ordinance. • a The Director of Planning and Inspection reported Section 35-111 of the City Ordinances which deals with "nonconforming uses" states that unless specifically nrniTided + e 1, the o_h_r<a ise .,y .he ardi � nance the lawful vs- of any 1-...,.a c, b,,;-,'- , -telly C:iiS ltic� at,tll@ time of the adoption of the ordinance (1968) may be continued even if such use does not conform to the regulations of this ordinance, provided certain conditions are met. He reported that the conditions which would apply to this particular appli- cation are as follows: 3 i. 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; 1 2. Such nonconforming 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 nonconforming use of a building existing at the j time of the adoption of this ordinance may be ex- t tended throughout the building provided no structural alterations except those required by ordinance, law I or other regulation are made therein. The Director of Planning and Inspection stated there appears to I be little question that Howe, Inc. represented a lawful use of land and buildings at the time of the adoption of the 1968 ordt- nance. He added the 1966 Comprehensive Land Use Plan specifically treated this operation by recommending that 11-28-77 -12- expansion of the operation be prohibited and that, if at all feasible, it should be relocated. He noted the.1968 zoning ordinance was adopted as an implementation of the Compre- hensive Plan and did not, and does not, include fertilizer manufacturing'or distribution as a permitted or special use in the I-2 zoning district. He stated the fertilizer manu- facturing operation constitutes a "nonconforming use" subject to restrictions which effectively prohibit expansion of the operation as recommended by the 1966 land use guide plan. The Director of Planning and Inspection concluded b stating 5 � that the research of the rezoning ordinance leads to the finding that unless the City Council determined Howe, Inc. to be a bona fide I-2 manufacturing activity similar in natur to other permitted uses in that zoning district, neither the rezoning proposal currently before the City Council or any subsequent proposal to construct buildings or substantially alter the existing buildings on the property could be per- mitted. He added that such a finding would necessitate an amendment to the Comprehensive Plan since, by law, zoning ordinances and decisions must be compatible with the established Comprehensive Plan. A brief discussion ensued relative to the Director of Planning " and Inspection's report. In response to an inquiry by Councilman Lhotka, the Director of Planning and Inspection reviewed from the zoning ordinance, the permitted activities in the I-2 zoning district. The City Attorney next reported on the rezoning at the Howe i fertilizer plant. He stated the current industrial operation -! at the Howe fertilizer site goes back as far as the 1940's and that although record keeping was somewhat haphazard, i it appears that the site was an agriculture accessory use involving the warehousing and sale of organic fertilizer. He explained the subject property, along with a much larger area surrounding it, had been zoned for industrial purposes under preceding zoning ordinances of the City going back to the late 1940's and early 1950's. He further explained that this larger industrial area had been gradually reduced in size by the construction of, and the rezoning to, single family dwellings apparently at the request of the then owners of Howe, Inc. He stated the present zoning status of Howe, Inc. is I-2, general industry, but the City's zoning ordi- nances does not permit fertilizer plants either as a permitter use or as a conditional or special use. He pointed out some special uses were granted in the 1950's during a time that City Councils operated under the philosophy that special uses could be granted as the Council saw fit. He added that in the 1960's this concept changed and special uses ha-: to be listed in the zoning ordinance before a City Council ; could permit them. The City Attorney reported the Howe fertilizer plant:ts a j "nonconforming use" under our zoning ordinance and is II recognized as such under the Comprehensive Plana He R explained that "nonconforming" does not mean it is an t illegal use but that the Council recognizes it as nonconform- Ing and that it will be eliminated at some time in accordance to certain rules. He further stated that the general policy of the law is to eliminate "nonconforming uses" as rapidly i as possible and that the generally accepted method for this I elimination is to prohibit any change, alteration, or expan- sion of the "nonconforming use". -13- 11-28-77 1 The City Attorney noted the applicant's request is to rezone, from single family residential to general industry, two standard size lots. He explained the rezoning would not bring about the desired result since the general industry zone does not • permit fertilizer plant usage. He added if the Council desires j to permit the request it would first of all have to amend the Comprehensive Plan, secondly, amend-the zoning ordinance to permit fertilizer plants in the I-2 district, and thirdly, the property in question would also have to be rezoned. The City Attorney reported that a zoning ordinance, and amend- ments thereto, must be based upon and must follow the dictates of the Comprehensive Plan which has previously been adopted by the City. He pointed out when the Comprehensive Plan is being amended, along with the zoning ordinance, it is presumed the change in the ordinance will conform with the change in the Comprehensive Plan, thus, the need for a Comprehensive Plan i amendment. He stated that there are a number of criteria which should be reviewed closely by the City Council when considering amendments to the Comprehensive Plan or the zoning ordinance. He listed the following as factors which the City Council should consider in reviewing the subject applications: 1. In considering zoning changes, the Council should consider all possible uses within the zoning classifica- tion rather than the specific use which is contemplated by the current applicant. This recognizes that an applicant is not bound to construct what is proposed in the plans before the City Council. 2. The proposed zoning changes must serve the public at large, rather than the private interests of the applicant. 3. Zoning changes which permit uses which are incom- patible with and decrease the value of surrounding properties are subject to being overturned by the courts. 4. If the subject parcels have a reasonable value as presently zoned and the rezoning request would serve only to increase their value to the applicant, the validity of the rezoning may be called into question. ' • S. If there have been changes in the general area which justify a general rezoning, such a general rezoning would have more apparent validity than a piecemeal zoning of one or two parcels where there have been no changes in the area. 6. The expansion of an existing zone generally has more validity than the rezoning of isolated parcels; even though the courts state that the City Council can draw the zoning line whereever they reasonably choose, a history of piecemeal strip zoning to accommodate the expansion of particular uses sets a precedent for continued expansion. The City Attorney reported that with respect to No. 5 it is important for the Council to consider if this is a changing neighborhood. He stated that it doesn't appear that there has been a demand, or a pattern, that this area be zoned industrial. 11-28-77 -14- i I _ i Regarding piecemeal or strip zoning, the City Attorney stated that it seems that the City Council in 1966, with the adop- tion of the Comprehensive Plan, attempted to stop piecemeal zoning and that it would n t be in the best interests of the • ' , City to revert to such a po icy. The City Attorney conclude his report by stating there are a j number of factors which may be considered in evaluating the proposed rezoning request ahich were mentioned at the public hearings and which bear or the compatibility of the fertilizer j plant with adjacent properties. He explained that these factors include noise, traf is congestion, traffic,dust, fertilizer dust, the corrosive effect of fumes and discharges, j ammonia and other objectic nable odors, unsightly and unkept grounds, attractive nuisances to children, late night lights, noise and activity and the lack of management cooperation in alleviating these problems. In response to an inquiry b Councilman Kuefler both the City Attorney and the Director of Planning and Inspection concurred that there have keen no rezonings in this area since the adoption of the City's Comprehensive Plan. Councilman Kuefler expressed the opinion that if the City . were to rezone this proper and the matter was challenged in court, the court might 1 ok unfavorably upon the City's action since the City has acted consistently with its Comprehensive Plan since is adoption and that the action to approve the rezoning request might seem inconsistent with this action. The City Attorney added that it would be difficult to defend the City s action if it were to approve the rezoning request becau a it would, in essence, be reverting back to piecemea or strip zoning. In response to an inquiry L i Councilman Lhoika, the Directs_ , of Planning and inspection stated that additional buildings at the Howe location were nade in the mid fifties to the mid sixties and that since 968 there have been no additionZ He pointed out that there were some alterations or repairs and interior remodeling to 1he office but that no structural additions have been made lo the property since 1968. In response to an inquiry by Councilman Fignar, the Directcc of Planning and Inspection stated that remodeling was per- mitted on the site but it wa s not a major expansion or additic. of any building. Councilman Fignar stated that it seems tha.: the applicant claims that t ere have been additions to the property since 1968. The Director of Planning and Inspec- tion commented that accor ing to the City's records a remodeling of the office space and a realignment of the lavatory was permitted sine 1968 but that no permits have been issued by the,City fox major structural alterations i since that time. Mayor Cohen suggested that the City Council reopen the { public hearing to allow for a response from the applicant an-- various comments on the additional information that has been presented. t I i Action to Reopen Closed Motion by Councilman Lho a and seconded by Councilman } Public Hearing Fignar to reopen the closed public hearing with regard to Planning Commission Application Nos. 77037 and 77038 limited to comments on the additional information that has been presented. Voting in favor: Mayor Cohen, Councilmen Britts, Kuefler, Fignar, an Lhotka. Voting against: none. The motion passed unanimously. -15- 11-28-77 Mayor Cohen recognized Mr. James Russell, an attorney representing Howe, Inc. Mr. Russell stated that i i reviewing the Planning Commission minutes and in particular the City Council minutes with respect to the Howe applications, he had concluded that there was a strong expression n the part of the City Council, with the possible exception o the Mayor, that the plan proposed had a number of good aspec s which would have been of benefit to the neighborhood. I a stated fthat the major concerns expressed at the last City ouncil' meeting had to do with pollution problems generate by the jplant, the Howe's efforts at addressing these problems, and I the need for more and better communication betwee i Howe, Inc. and the neighboring property owners. He further stated that a meeting was held with the neighborhood on November 22, 1977, and that representatives of the City and the PCA in J attendance. He reported that there were a number f questions put forth relating to the Howe operation and its att mpts at addressing various problems. Mr. Russell stated that the Howe operation has be n in existence since the mid 1940's and did exist prior o the residential property surrounding it. He explained that the Howe plant has been in existence for quite sometime and it is their intention to be in the fertilizer business at this location for sometime in the future. He added that he is su prised and somewhat distressed with the tone of the City's pr sentation this evening that suggests that the Howe operation should cease to exist. He stated that he concedes that the Howe operation is a "nonconforming use" as far as the C ty's zoning ordinance is concerned but that he cannot agree that it is in the best interests of the City to take a position that there should be no improvements made at the site because of this designation. He explained that the rezoning reque t is made - for the purpose of permitting Howe, Inc. to take measures to clean up the dust and pollutant problems associated with the site and that approximately 85% of the property requested I for rezoning would, hp fnr tha purprkap of 1-14fers that presently do not exist. Mr. Russell stated that if the City Council concur with the assumption put forth by the City Manager that the owe opera- xion is going to cease to exist, then no changes st ould be allowed. He added that if the Council adopts the i issumption that they will continue to exist, which the applicai it has every intention of doing, it would be in the best interest of the City and to the people living in the surrounding area to make the site improvements. He pointed out that the rezoning pr posal does not represent an expansion of the operation but is intended to permit the applicant to make various physical improvements, provide buildings to store equipment and provide a reenstrip buffer for the neighborhood. Mr. Russell further stated that he is also surprised at the opposition to the Howe req jest presented this evening by the City staff in that they had been encouraged to make their presentation in such a way as to show the benefit of the improvements to the neighborhood. He added that prior to this evening, there had been no opposition to th it proposal 1 by the City. nar. Russell further stated that Howe does not have any plans to love the plant from the present location and that 1:1 ey intend to aly comply with MPCA regulations relating to air pollution. He added that he feels that-the applicant has addressel the concerns raised by the Planning Commission and the concerns expressed by • the City Council at the last City Council meeting. He pointed out that the applicant has addressed pollution problems in the past and plans to further address these problems in the future and will participate in the tests previously described by MPCA representatives. He concluded by stating that the most important 11-28-77 -1 - point is not whether Ho is a conforming or nonconforming • use, but rather that it wc uld be in the best interests of the City to work with Howe, Inc. to make it possible to make various improvements to he property because the operation has no plans to cease it existence on the site. Councilman Fignar inquidad of Mr. Russell as to the number of employees employed at the Howe site and the amount of property taxes paid by•H we. Mr. Russell responded that there are 24 employees a d that Howe, Inc. pays approxi- mately $15,000 to $20,000 a year in taxes. In response to an inquiry by Councilman Lhotka, Mr. Russell stated that the white cloud in the air alluded to at the last City Council meeting was a powdery s ibstance which resulted from a bagging operation that H we had undertaken for another company. He pointed ou that they did not realize at the time that the operation w uld produce as much dust as it dic. • He explained that this w s a one time operation and will not reoccur. Also in response to an inquiry by Councilman Lhotka, Mr. Russell stat d that they were pleased with the results of the meeting he d on November 22. He stated that the exchange mostly consisted of questions from neighborinc_ property owners which were responded to by Mr. Meyers of the MPCA. He stated that he felt that there was more under- standing between the parties as a result of the meeting and that one of Howe, Inc's principal critics had stated that he would like to see the building built on 49th Avenue and also that Howe has made improvements in its operation over the last five years. Mayor Cohen pointed out that according to information sup- plied by the City Assessor, Howe, Inc. pays approximately $13,000 a year in property taxes. Mayor Cohen then recognized Mary Dodds, 4730 Xerxes I Avenue North, Minneapol's, who stated that she was not asked to attend the meet' g held on November 22. She stated further that the in rmation presented this evening only adds to the facts al ady presented against approval of the application. She spore in opposition to approval of the applications:. ' j Virgil Linn, 3112 - 49th P venue North, stated that he has be one of the principal critics of the Howe operation and that ii Mr. Russell was referrinc to comments he might have made, he would like to qualify I is statement. He further stated he is not certain that the advantages of the proposal out- weigh the possibility of f irther pollution problems and that he is not necessarily in f avor of approval of the applications He noted that there have :)een improvements to a truck scale located at the operation which has generated more truck traffic to the site and inq fired if this improvement represent: t expansion of the -site or r modeling. The Director of Plannin and Inspection responded that there is no permit involved with enlarging a truck scale. �++ i Mr. Reich, 3141 - 49th A enue North, stated that in the pa Z, the Howes have put up bt idlings on the site and then sought the permits after the fact He inquired as to how close railroad tracks can be to esidential property and noted that the Soo Line Railroad had moved a spur line after the Novem- ber 22, 1977 meeting. T e Director of Planning and Inspec- tion responded that if a railroad track were laid today it : would have to be built at least 100 feet away from residen- tial property. I c i -17- 11-28-77 ! Mr. Reich also commented on the pollution problems associated with the Howe operation and expressed the opinior that Howe has not paid attention to the problems associated with the neighborhood in the past. He also questioned why a repre- sentative of the Minnesota Pollution Control Agency was at • i4 November 22 meeting held between Howe and tie neighborhood. Mayor Cohen recognized Robert Meyers,of the Enf rcement Section, Division of Air Quality, Minnesota Pollut on Control Agency, who stated that he had been invited by the Howes to the meeting held on November 22 to answer variou questions which might be raised-by neighboring property own rs with regard to pollution problems associated with the H we operation. Mayor Cohen recognized Mr. Robert Kuebelbeck, an architect retained by Howe, Inc., who inquired if it was thE City's intent, once the "nonconforming use" was phased out, to revert this property to a residential use. He further inquired as to why the, City had zoned this property industrial if they wanted it eventually to be residential property. He added that it was his opinion that the property on which the Howe site is located wo ld not make good residential property. Mayor Cohen responded that the City's comprehensive plan was adopted after numerous Planning Com- mission and neighborhood advisory group meetings and hearings and it was the decision at the time that the fertili2 er plant should not be expanded but eventually relocated to a morc compatible site, thus, its designation as a nonconforming us . He explained that the Comprehensive Plan addresses this matter by stating that phasing out the fertilizer plant operation would permit a rounding out of this area. He stated that this wo d not necessitate this area being all residential but rather a use thal is more com- patible with tha existing residential area. He pointed out that the record relating to the adoption of the Comprehensive Plan and the City zoning ordinance is available for review. B!"I liian<., & gv'riG-'iiii IWIL1.LU(1 LUI ici:Cined Ly Howe, Inc., stated that a permit was issued for a major addition to th existing office building which included a basement and tha it was his recollection that this expansion occurred after 19 8. Lawrence Butler, 3201 - 49th Avenue North, inquired if the matter that comes from the Howe plant is detrimen al to a person's health. Mayor Cohen responded that it Was difficult to give a ciearcut response to this question and added that the Minnesota Pollution Control Agency has established 1► various standards to address this problem but that it cannot specifically say whether or not this matter is harrrful to a person's health. Mayor Cohen responded to comments that had been made regarding the City Manager's recommendation. He stated that the City Council had directed the City Manager to research a number of items that related to the subject'applications and to report this information to the City Council. He pointed out that the recommendation is not a matter of the staff invoking personal opinions or preferences, but rather reporting to the City Council with respect to the effect the City's ompre- `- hensive Plan and zoning ordinance have on the applications. Mayor Cohen recognized Tom Howe of Howe, Inc. who com- mented on the question raised regarding the effects the Howe operation has on a person's health. He explained that he has talked to doctors and persons operating other fertilizer plants with respect to the effect these operations have cn a person's 1 11-28-77 -18- i i t1 ' health. He pointed out that the Crystal Medical Clinic which ' takes care of employec s working at the Howe operation, indicates that no empl yees have been treated for respiratory problems. He added titat doctors have stated that there a-e • no documented cases of health problems for people living near such operations. He explained that he lives in the { neighborhood and that lie is concerned about the pollution problems as well as-a of the neighbors, and that he is convinced that it does not create health problems for people living in the vicinity oi working at the operation. The Director of Plannin I and Inspection stated that in Nov_m- ber, 1967, with the ap roval of Planning Commission Appl:- cation No. 67059, the Council had approved an addition tc the office building at t e Howe site. He explained that sine_ that time only building permits for code related bathroom remodeling improvemen s and roofing repairs have been Issued. He pointed oul that no permits for physical expan- sion of the Howe plant iave been issued since that 1967 approval and that if any expansions were undertaken since that time, it was done E o without the knowledge of the Cit;-. Dick Grones, 6100 Sum it Drive, was ruled out of order by the Mayor because he had no interest in the applications. Mrs. Murto; 3205 - 49t i Avenue North, cited various exam- Ales of people living in the neighborhood who had health problems which she felt might be attirbutable to the pollution problems. Mr. Russell stated that he Howe's have been in the fertilize- _ business at the present ite since the mid 1940's and have done well with the operation. He added that there major f neglect, if any, has rea ly been one of public relations. t added that the site has z lways heen an industrial location"J and that a Comprehensive Plan that says it should be rest- dential does not make s nse. He pointed out that their request is not, in his opinion, strip zoning and that the 'request is for the purpos of making improvements to the property which will benefit the neighborhood. He conclude= by stating that the Coun it should approve the applications in order that the improvements can be made, rather than to speculate that the Howe operation will some day cease to exist. In response to an inquiry by Mayor Cohen, Mr. Rus= q stated that Frank Howe h ad been the owner of the industria property which had been -ezoned residential and is the loco- : tion of many of the single family homes in the area. Close Public Hearing Motion. by Councilman Fignar and seconded by Councilman Kuefler to close the publi hearing. Voting in favor: Maya Cohen, Councilmen Britt , Kuefler, Fignar, and Lhotka, f Voting against:- none. T e motion passed unanimously, j A lengthy discussion ensued relative to the applications. Councilman Fignar inquir d if at the time preceding the adoption of the City's Co nprehensive Plan and zoning ordi- nance, there had been public hearings with respect to the plan that the applicants ould have been aware of. Mayor i Cohen responded that pub is hearings were held.by neigh- borhood advisory groups, the Planning Commission, and the City Council in accor ance to guidelines established for use of the Federal grar t that the City had utilized in developing the Comprehensive Plan. He added that the zoning map was published prior to the adoption of the zoning- i ordinance and that the Cit had paid for a special edition -19- 11-28-77 t relating to the Comprehensive Plan and the zoning ordinance which was distributed throughout the City. Councilman Lhotka inquired if the Howe operation 6vas considered industrial or commercial. The Director of Planninc and Inspection responded that the City Ordinance does not recognized the fertil- izer business in any zone but if it had'it, in all li elihood, would have considered it an industrial use. In response to an inquiry by Councilman Kuefler the Director of Planning and' Inspec- tion stated that zoning in Minnesota is "exclusion ry zoning". He stated that there are a number of homes on Brooklyn Bouelvard which are considered "nonconforming uses" and that expansions of these properties are also not permitted without modification to the Comprehensive Plan and the zoning ordinance. He commented that the Howe site, because of the location of the ailroad, was deemed to be best suited for industrial type uses bit that fertil- izer plants were specifically excluded from the zo ing ordinance and, therefore, are not permitted uses in the Indus rial zones. The City Manager commented that the Comprehensi a Plan speaks to "rounding out of the area" and at the time it might have been felt that some of this area would be rest ential but mostly industrial and that there are some industrial uses that could be developed on the site which would be com atible to the surrounding residential property. Mayor Cohen stated that he feels the issues are qu to clear and that expanding the "nonconforming use" is prohibit d. He added that to permit the rezoning would require an amendn ent to the Comprehensive Plan and zoning ordinance. He stat d that he feels licensing of this operation and similar operati ns that emit high levels of pollution should be undertaken. He further stated that a closer look as well should be given to the desir- ability of permitting dynamiting in industrial zones. The City Attorney stated that he did not feel that State statut s preclude the City from controlling the industrial use of dynamite. Councilman Kuefler stated that he had expressed thE opinion at the last City Council.meeting that the improvements proposed by the applicant could be of benefit to the neighborhood but that he felt approval of the rezoning request would constitu a "spot zoning" unless, and until, persons living in that ne ghborhood - supported the rezoning request. He explained to ap rove the application would only benefit the property owner if he neigh- borhood could not also support the rezoning. He further stated that the land use considerations and the fact that H we, Inc. is designated as a "nonconforming use" leads him tc support denial of the two applications. Councilman Fignar stated that, as he had expressed at the November 14 City Council meeting, there are two is ues with regard to these applications, one being the rezoning request and the other being the complaints registered by persons living in the immediate area of the Howe plant. He Jurther stated that the information presented this evening in icates that to approve the applications would constitute pie,emeal or strip zoning. He added that although he feels the improve- ments proposed to take place would be beneficial to I he �. neighborhood, he cannot, because of the land use t lications, speak in favor of the application. He commented tha Howe, Inc. has brought much to the area and that it does not seem ` appropriate that a small-business such as Howe, Inc should be pushed into a corner. 11-28-77 -20- i Action Directing the Following further disc. isc ssion there was a motion by Council- Preparation of a Resolution man Lhotka and secon ed by Councilman Kuefler to direct the City Manager to p epare a resolution denying Planning Commission Application Nos. 77037 and 77038 citing the history of the applications, the Planning Commission's I recommendation, the goints raised at the November 14, 1977 City Council meeting and the information presented at the November 28, 1977 Ci y Council meeting. Voting in favor: Mayor Cohen, Counci men Britts, Kuefler, Fignar, and Lhotka. Voting again t: none. The motion passed unani- mously. A brief discussion ens ied relative to developing a licensing procedure for establishments emitting high levels of air pollutants. Action Directing Prepara- Motion by Councilman Fignar and seconded by Councilmar tion of a Draft Ordinance Lhotka to direct the Ci y Manager to prepare a draft ordi- nance requiring licensing for establishments emitting high levels of air pollutant . Following the motion a id second thereof a brief discussion ensued with Councilman Britts stating that such a licensin: procedure might be construed as an effort on the part of the City to unnecessarily jenalize Howe, Inc. or force them c--t of the community through this procedure. Mayor Cohen commented that the the MPCA has indicated that the best way for enforcing air q ality regulations is through cooper_- tion with local units of government. He added that he considers a licensing rrocedure for such establishments as a means of gaining this cooperation. The City Manager commented that the monitoring aspect of the licensing pro- cedure is the basis for requiring such licensing. He noted that even without a 11c nsing procedure operations such a: T.-c,.vc, inc. mutt mace he MP%A regulations and also the requirements of any sti ulation agreement they execute wit^ the MPCA. Following the discussicn a vote was taken on the motion. Voting in favor: Mayor Cohen, Councilmen Britts, Kuefler, Fignar; and Lhotka. Voting against: none. The motion passed unanimously. Action Directing Further Motion by Councilman Ihotka and seconded by Councilman �l Research on the Use of Kuefler to direct the Citj Manager to further explore and Explosives research the possibility of establishing a licensing pro- cedure for the industrial use of explosives for further City Council review. Voting in favor:• Mayor Cohen, Councilm= Britts, Kuefler, Fignar, and Lhotka. Voting against: none. The motion passed unan mously. Recess The Brooklyn Center Cit Council recessed at 11:28 p.m. and resumed at 11:48 p.m. i Traffic Safety Advisory Mayor Cohen reported t at Mr. Arnie Foslien has submitted Committee an outline regarding the structuring of a Traffic Safety Ad- visory Committee which as recently been discussed by the City Council. Mayor Cohen further reported that Judge Johnston has agreed to serve as chairman of such a commit,--.. ff i Mayor Cohen recognized Mr. Arnie Foslien who commented that such committees op rate in the communities of Cottage Grove, Coon Rapids, anc Golden Valley, in addition to the City of Minneapolis. H stated that it is recommended that" the membership be selec ed from present organizations with- -21- 11-28-77