HomeMy WebLinkAbout1983 01-13 PCP Planning Commission Information Sheet
Application No. 83001
Applicant: Howe, Inc.
Location: 4821 Xerxes Avenue North
Request: Appeal
The applicant appeals a determination by the City staff that acquisition and use of a
parcel of excess right-of-way at the southwest corner of 49th Avenue North and Brooklyn
Boulevard for parking and landscaping would constitute an expansion of the nonconform-
ing use at Howe, Inc. and is, therefore, prohibited by the Zoning Ordinance.
The land in question is approximately 30,000 sq. ft. and is located northeast of the
existing Howe, Inc. site. The parcel was created in 1972 when MN/DOT acquired
additional land for right-of-way to construct a bridge over the Soo Line tracks. It
is presently used primarily to provide access to Howe, Inc. off 49th Avenue North
at an appropriate distance back from the intersection with Brooklyn Boulevard. The
applicant wishes to use this area for additional parking adjacent to its office on
the east side of the site and to landscape the entrance to the site. City staff,
in a letter dated September 24, 1982 (attached) have informed the applicant that
such an expansion is not permitted under Section 35-111, Subsection (1 ) which reads :
"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." (The City Council has made a finding, based on a recommendation from the
Planning Commission that Howe, Inc. became a nonconforming use under the Zoning
Ordinance in 1957) .
The applicant has submitted a letter (attached) in which he explains the background
of the issue and sets fortis a number of arguments summarized below:
1 ) The land is excess right-of-way which Howe, Inc. has been using
for access since 1972 anyway.
2) To add the land to the existing site would not enlarge the area
occupied by the nonconforming use in 1957, but would replace
other land taken in 1972 for right-of-way.
3) Allowing the additional parking would be a greater convenience
and would reduce the hardship cited when Howe, Inc. was granted
a variance for parking in 1979.
4) Conforming uses at Howe, Inc. should be distinguished from the
nonconforming use which is the manufacture of fertilizer.
Parking is a permitted accessory use for any business in
Brooklyn Center. Howe, Inc. is not being allowed to fulfill
parking needs because of a nonconforming aspect of its operation.
5) The proposed parking and landscaping on the land in question
would enhance the appearance of the area, benefitting the City
and the neighborhood as well as Howe, Inc.
The applicant' s arguments have some merit,though some are more relevant than others.
The fact that Howe, Inc. has been using part of the land for access is not an issue
here. It may continue to use the access drive whether the land is owned by the
State or not.
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Application No. 83001 continued
It may seem noteworthy as the applicant argues, that the land in question would
replace land that was taken in 1972 (actually only about 15,700 sq. ft. was taken
from Howe in 1972 compared to the potential gain of about 30,000 sq. ft. now).
However, it must be understood that the land in question was owned and occupied by
two other businesses at the time MN/DOT acquired the property and access to Howe
has been provided over a portion of the area. The land area presently used for
access is roughly equivalent to the amount of land acquired from Howe and damages
have been awarded.
We believe the intent of the City's nonconforming use ordinance, as with all such
ordinances, is to eventually phase out nonconforming uses. Any diminution in the
land area of a nonconforming use - whatever the cause - should serve to accomplish
the ultimate goal of phasing out nonconformity and should not be reversible later on.
This policy is evident in subsection (2) of Section 35-111 which reads:
"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."
and Subsection (4) of Section 35-111 which states:
"If a nonconforming use occupies a building and ceases for a continuous
period of two years, any subsequent use of said building shall be in
conformity to the use regulation specified by this ordinance for the
district in which such building is located."
Even though the present application deals with the use of land and not a building,
it seems clear that the basic policy of the Zoning Ordinance is to phase out non-
conformity and not allow re-expansion many years after a loss in building or land
area.
Point No. 3 does point up some irony in the City staff's position: that Howe, Inc.
should not be allowed to expand even if the expansion serves to reduce one type of
nonconformity (lack of parking) . What the applicant's letter does not mention
clearly, but which has been communicated to staff, is that the applicant does not
wish to increase parking area so much as shift it from the area west of the middle
building to the area north of the office building. This would free up the area
west of the middle building for storage of trailers and fertilizer spreaders, an
area which the variance granted under Application No. 79069 reserved for employee
parking only. Staff regard this as a clear expansion of the operation and not a
reduction in the parking deficiency.
The applicant cites the fact that parking and landscaping are permitted accessory
uses and are not an expansion of the nonconforming aspect of the operation which is
the manufacture of fertilizer. Actually the ordinance does not prohibit Howe, Inc.
from providing more parking and landscaping on their site. What it prohibits is
the enlargement of the site of a nonconforming use. Any such expansion is likely
to extend the life of the nonconforming use rather than lead to its phasing out
and is , therefore, contrary to the intent of the ordinance. The Zoning Ordinance
does not restrict or bar the expansion of conforming uses. The applicant also
argues that the nonconforming manufacturing aspect is not expanding, that the
new parking would serve the office and distribution aspects of the business
rather than manufacturing. However, office and distribution functions, along with
parking, are accessory to and supportive of the nonconforming activity of manufact-
uring fertilizer. Any expansion of the existing site cannot be divorced from expansion
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of the nonconforming use. It should be noted that the Howe, Inc. operation was
viewed as a whole when a determination was made that a building could be rebuilt
on the site following the 1979 fire. The City Council on May 14, 1979 made the
following finding:
There was a motion by Councilmember Kuefler and seconded by Councilmember
Lhotka to recognize and concur with the Planning Commission action that the
Howe building destroyed by fire on January 6, 1979 was part of the entire
complex, that less than 60% of said complex was destroyed by the fire and
that, therefore, the applicant is entitled to rebuild a similar warehouse
on the site. Voting in favor: Mayor Nyquist, Councilmembers Kuefler,
Fignar, Lhotka, and Scott. Voting against: none. The motion passed
unanimously.
Finally, the applicant argues that the proposed parking and landscaping improvements
would enhance the appearance of the area. We certainly don't disagree that the area
would be enhanced by more landscaping; and, if Howe, Inc. wishes to plant more trees
in the right-of-way at 49th and Brooklyn Boulevard, we see no reason why they should
not be allowed to do so. Enhancing the appearance of public as well as private
property is always a welcome improvement, provided lines ofsight.are preserved for
traffic safety. We see no need to expand parking into this area in order for neigh-
borhood appearance to be enhanced. In general, we feel the applicant has made some
good points and we acknowledge that there may be real practical benefits resulting
from the proposal . However, we believe that it is contrary to the provisions of
Section 35-111 of the Zoning Ordinance..
The issue of expanding the Howe, Inc. site was thoroughly reviewed in 1977 when the
company wished to rezone from R1 to I-2 the two residential lots immediately west of
the site. It should be noted that many of the same arguments were made at that
time about how the expansion would improve appearances and would allow Howe, Inc.
to conform to buffer, setback, and parking requirements. The expansion at that
time was denied as being inconsistent with the Comprehensive Plan. Although, the
updated Comprehensive Plan does not recommend conversion of the industrial site to
residential , it does recommend the phasing out of the Howe, Inc. fertilizer manufact-
uring operation.
Any expansion of the Howe site along the lines presently proposed would require
replatting of the new parcel with the Howe site into a single parcel , site plan
approval for parking and landscape improvements and a variance from the ordinance
requirement for a 15' greenstrip adjacent to Brooklyn Boulevard. The Planning
Commission should be aware that all these other matters would have to be considered
(and ultimately given at least conditional approval ) should the appeal be granted.
Such an action we feel , would be inconsistent with the precedent established in
1977 by denial of Application Nos. 77037 and 77038.
We do not believe the proposed expansion is consistent with either the City's Zoning
Ordinance or its Comprehensive Plan. For that reason, we recommend that the appeal
be denied.
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t
Planning Commission Information Sheet
Application No. 83002
Applicant: Gary Uhde
Location: 6900 Unity Avenue North
Request: Sign Variance
The applicant requests a variance from Section 34-140.2 1 (2) to allow a two-year
continuation of a real estate sign for the Island Ponds Townhouses past the two
year limitation imposed by the ordinance. The sign is located on the northeast
corner of 69th Avenue North and Unity Avenue North, adjacent to the new model
homes for Plat 5 that have recently been built at 6900 Unity Avenue North. The
lots in Plat 5, as the Commission may know, are located about three blocks up
Unity Avenue North along 72nd Circle. Plat 5 was approved in 1979. However,
no units have been built because of financial problems and a deteriorated market
brought on by high interest rates. The sign has remained up since 1977 (about
4 years beyond its original deadline) basically as a result of an oversight by
the staff.
The applicant has submitted a letter (attached) in which he explains his position
and argues that the standards for a sign variance (also attached) are met in the
following manner:
1 . A hardship is created because the lots in Plat 5 are all located
in the interior of the project, well off any major thoroughfare.
It will take considerably longer to market the townhouses if the
sign is not up.
2. The situation is unique in that the applicant is not the original
developer/builder, but a creditor who did not receive the lots
voluntarily. There has been a three year delay in completion of
the project, the continuation of which causes a hardship for
existing Ponds' residents.
3. The granting of the variance will not be detrimental or injurious
to the public since it will cut down unnecessary traffic by
having the model and sign at the project entrance. (A letter from
the president of the Ponds Homeowner's Association in favor of the
variance is also attached) .
Staff agree with the applicant's arguments insofaras they lead to the conclusion
that a sign at the entrance to the Island Ponds project is necessary and useful
to the completion of the project which is in the public interest. The question
that must be addressed, as it must with all variances , is whether necessary visual
communication can be accomplished within the limitations of the ordinance. The
ordinance presently allows for one permanent identification sign, 36 sq. ft. in
area, not over 10 ft. above ground level or two identical freestanding signs located
at opposite sides of the project entrance, each not greater than 18 sq. ft. in area
and not more than 5' above ground level . Individual units for sale may have one
real estate sign up to 10 sq. ft. in area. Whether this amount and type of signery
is adequate to let people know that a number of new units in the complex are for
sale is debatable. The permitted signery would allow for adequate identification
of the project, but does not include centralized advertising of units for sale.
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,
Application No. 83002 continued
We are forced to conclude that centralized advertising of units for sale does con-
stitute "necessary visual communication" and that a hardship will result if there
is no such signery allowed at the entrance to the project. The uniqueness of the
applicant's situation and the overall public benefit are also conceded in the
applicant's favor. Staff recommend that the Commission review the ordinance I
provision in question and consider whether an amendment is in order before granting
the variance as requested. We feel there are more limited means of advertising
the sale of townhouse units in conjunction with a permanent identification sign
than are suggested by the variance application. The Conunission may also wish to
set a time limit more flexible than the two years requested, more related to the
number of units remaining to be sold.
A public hearing has been scheduled and notices have been sent.
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