HomeMy WebLinkAbout1983 01-27 PCP Planning Commission Information Sheet
Application No. 83003
Applicant: City of Brooklyn Center
Location: Southeast corner of I-94 and Highway 100
Request: Rezoning
The applicant requests rezoning from R3 to R6 of two parcels of land totaling 7.15
acres in area at the southeast quadrant of the intersection of I-94 and Highway 100.
The two parcels in question are Lots 1 and 2, Block 1 of the proposed Brookwood
Addition plat (see Application No. 83005) . The land is currently zoned R3 and is
bounded by Highway 100 on the west, by Lilac Drive on the southeast and by a 6.12
acre parcel (Lot 3, Block 1 , Brookwood Addition) of R3 zoned land on the northeast.
The rezoning is requested in order to allow the construction of 138 units of
elderly housing in two buildings over three storeys in height on the two parcels
(see Application No. 83004) .
Mr. Brad Hoffman, Administrative Assistant to the City Manager, has submitted a
letter requesting the rezoning (copy attached) . Mr. Hoffman explains that the
proposal is consistent with the Housing Plan element of the City's Comprehensive
Plan by providing affordable housing for the elderly. Mr. Hoffman points out
that the housing in the southeast neighborhood is among the oldest in the City
and would be more suitable for and better maintained by younger families. Mean-
while, older residents can find suitable housing within the same neighborhood. A
market analysis done by the City in January 1982 verified the need for elderly
housing called for in the Comprehensive Plan. Mr. Hoffman points out that the
gross land area (including Lilac Drive right-of-way) could support roughly 150
townhouse units. Although the proposed development is 170 units (138 elderly) ,
he points out that the amount of traffic generated by elderly housing is approxi-
mately half that generated by townhouses on a per unit basis. Therefore; less
traffic will actually result from more units . Mr. Hoffman also notes than
traffic from the development will be diverted in three directions with minimal
impact on the neighborhood.
Mr. Hoffman also points out that there is no R6 zoned land available in the City
and that such land is necessary to build the kind of project proposed. Mr.
Hoffman argues that the project meets a public need for elderly housing and,
at the same time, is compatible with the neighborhood and the physical surround-
ings. He adds that the land involved is so clouded with title problems that
development of the property would be nearly impossible without the assistance
of the City. As the Commission may know, the Brooklyn Center Housing and
Redevelopment Authority intends to declare a tax increment district to include
the rezoned area and will use the increment basically to make both new and exist-
ing housing more affordable.
Not surprisingly, the planning staff concur with the rezoning request and the
arguments made to support it. We feel that the design of the entire project is
such that there will be significant public benefits. Although the Comprehensive
Plan recommends mid-density residential development in this area, the Plan also
recommends the supply of more elderly housing and does not specify where it
should be built. It is logical that some amendment of the Plan is necessary to
accommodate affordable housing for the elderly somewhere in Brooklyn Center. It
should also be stressed that the overall housing density is not that much greater
than if the land were developed under its existing zoning. Consequently, even
though there are more units , because of the 138 elderly units , the resulting
traffic, noise, etc. will actually be less than if the land were fully developed
under its existing zoning classifcation.
1-27-83 -1-
Application No. 83003 continued
It Is also important to note that the number of units to be constructed on the
entire Brookwood development (see Application No. 83004) will be limited through
deed restriction to 170 units. The deed restriction keeps the property from
being developed to its maximum potential in keeping with the City's desire to
minimize the impact of the development on the adjacent neighborhood. The City's
HRA is also entering into a contract with the developer, Brutger Company, re-
quiring elderly occupancy for Building B and condominium form of ownership for
Building A and the townhouses.
Attached for the Planning Commission's review are the Guidelines for Evaluating
Rezoninds from Section 35-208 of the Zoning Ordinance. Most of these guidelines
have been addressed by the applicant. Guideline (g) , which asks whether the
current zoning classification is inappropriate for the property, has not been
dealt with since over 6 acres of the Brookwood development will remain zoned (and
developed) R3. The R3 zoning classification is not considered inappropriate for
this location. However, it may be noted that recent rezonings of land to R3
in the northeast and southeast neighborhoods more than make up for the land area
lost from the R3 classification in this rezoning. What is more, the land in
question will be the only R6 zoned land in the City.
As with all rezonings, it is recommended that the Commission open and continue a
public hearing on the proposal , table the rezoning and associated applications,
and refer the matter to the Southeast Neighborhood Advisory Group. The rezoning
will also require an amendment to the City's Comprehensive Plan. It is recommended
that such an amendment, along with the rezoning, plat, and site and building plan,
be given final consideration at the Commission's March 3, 1983 meeting. We .recom-
mend that the Commission's referral to the Southeast Neighborhood Advisory Group
speci;=ically stipulate that the neighborhood group's action be conveyed to the
City offices in writing by February 28, 1983 for prompt review by the Commission
on March 3 and direct the staff to prepare the necessary Comprehensive Plan
amendment.
A public hearing has been scheduled and notices have been sent.
1-27-83 -2-
Planning Commission Information Sheet
Application No. 83005
Applicant: Brooklyn Center Housing and Redevelopment Authority
Location: . Southeast quadrant of I-94 and Highway 100
Request: Preliminary Plat
The applicant requests preliminary plat approval to subdivide into three lots and
right-of-way the 14.58 acre triangular area of land at the southeast corner of
I-94 and Highway 100. The land is presently zoned R3 and is bounded by Highway
100 on the west, by I-94 on the north and by North Lilac Drive on the southeast.
The current legal description of the property is a metes and bounds description
far too lengthy to quote here. The property is partially owned by the City
(about 4.5 acres) . The remainder is being acquired by condemnation proceedings
implemented b y y
the Brooklyn Center Housing and Redevelopment Authority. The
proposed legal description is Lot 1 , 2, and 3, Block 1 , Brookwood Addition.
The 14.58 acres are apportioned to the lots and right-of-way in the following
manner:
Lot 1 142,070 sq. ft. = 3.26 acres
Lot 2 169,470 sq. ft. = 3.89 acres
Lot 3 266,455 sq. ft. = 6.12 acres
Lilac Dr. 57,162 sq. ft. = 1 .31 acres
Total 635,157 sq. ft. _ acres
Lots 1 and 2 are the subject of rezoning (to R6) Application No. 83003. Lot 1
is proposed for a 65 unit 3 plus storey elderly rental building. Lot 2 is proposed
for a 73 unit condominium building. Lot 3 will be a 32 unit townhouse project
under a condominium form of ownership (separate ownership of units , but no division
of land) . There will also be a dedication of 30' for additional right-of-way along
Lilac Drive to make that street a full street width of 601 .
There presently exists a 33' right-of-way for Fremont Avenue North through part of
Lot 2 and Lot 3 of the proposed plat. This right-of-way will be vacated by the
City prior to final plat approval . No utility easements are presently shown on
the preliminary plat. The City is preparing site utility plans for the develop-
ment and it is expected that a 10' wide utility easement will be needed along
North Lilac Drive and also utility easements 10' on either side of property lines
separating Lots 1 and 2 and Lots 2 and 3. Utility structures such as manholes
will be located in these easement areas. Meanwhile, under the condominium form
of ownership, the City will have a legal right to repair on-site utilities in the
event they are not properly maintained by the private associations.
As has been noted, Lots 2 and 3 will be held in condominium form of ownership.
The condominium will not be declared, however, until construction is completed
and the physical locations of various units can be certified. During construction,
the land will be owned by Brutger Company, the developer. The condominium form
of ownership is stipulated in a contract which the City is entering into with
the Brutger Company.
Altogether, the plat appears to be in order and approval is recommended, subject
to at least the following conditions:
1 ) The final plat is subject to review and approval by the City
Engineer.
1-27-83 -1-
Application No. 83005 continued
2) The final plat is subject to the provisions of Chapter 34 of
the City Ordinances.
3) Condominium association documents for Lots 2 and 3 are subject
to review and approval by the City Attorney.
4) The Brooklyn Center Housing and Redevelopment Authority shall
enter a contract with the developer stipulating condominium
form of ownership for Lots 2 and 3 prior to final plat approval .
5) Fremont Avenue North right-of-way shall be legally vacated by
the City prior to final plat approval .
6) The preliminary plat shall be modified to indicate appropriate
utility easements in accordance with the City's site utility
plan prior to final plat approval .
7) Building permits shall not be issued until the final plat has
been filed at the County.
i
1-27-83 -2-
Planning Commission Information Sheet
Application No. 83004
Applicant: Blumentals Architecture
Location: North Lilac Dr. between Humboldt and Dupont
Request: Site -and Building Plan
The applicant requests site and building plan approval for a three
part development consisting of a 73-unit elderly condominium build-
ing, a 65-unit elderly apartment building, and 32 townhouse units,
all on the land lying east of Highway 100 , south of I-94 , and north-
west of North Lilac Drive. The total land area is 13. 27 acres and
is presently zoned R3 . Of the 13 .27 acres , 7 . 33 acres are proposed
for rezoning to R6 under Application No. 83003. The maximum number
of units which can be built on the two R6 parcels are 65 units (84
with an under-building parking credit of 500 sq. ft. per unit) on
Lot 1 and 77 units (100 with an under-building credit of 500 sq. ft.
per unit) on Lot 2 . The maximum number of townhouses permissible on
Lot 3 (6 . 12 acres) is 49 units without an under-building parking
density credit. The 170 units proposed is , therefore, well within
the potential of 233 units which could be built, given the same
design concept and respective land areas in the R3 and R6 zones .
It is substantially more units than the 107 townhouse units (131
with maximum under-building parking density credit) which would be
allowed without the rezoning to R6 of over 7 acres of this site.
Access to the development will be at three distinct points along
North Lilac Drive. North Lilac Drive is proposed to be cul-de-saced
at its intersection with Fremont Avenue North , From the north,
Lilac Drive will stop at 62nd Avenue North, leaving a break in North
Lilac Drive just south of 62nd Avenue North. This break is in-
tended to prevent through traffic along North Lilac Drive from
Humboldt Avenue North to Dupont Avenue North and vice versa. The
townhouses and the 73 unit condominium building will access north
of 62nd Avenue North; the 65 unit rental building will access south
of the break.
Parking for Building A (the condos) will be 74 spaces either under
the building or under a raised plaza area southwest of the building
and 32 stalls outside the building for a total of 106 stalls . In
addition, the plan provides for 40 proof-of-parking stalls south-
east of the building to meet the ordinance requirement of two stalls
per unit. Likewise , for the rental building (Building B) , there
will be 66 interior parking spaces and 27 exterior spaces for a
total of 93 spaces . In addition, the plan shows 38 deferred spaces
to exceed by one the total requirement of 130 for the building. Two
outside handicapped stalls are provided for each building. There
will be four interior handicapped stalls in Building B and two in
Building A, providing one for each handicapped unit. Parking for
the townhouses will include 44 garage stalls (not under-building)
and 52 exterior stalls , including 16 "guest stalls" . This provides
a total of 96 stalls or three stalls per unit. We feel this is
just about right, although the ordinance requires only 64 stalls.
The drainage plan for the development is rather complex and will
not be reviewed in detail here. Of note is the fact that drainage
will be managed on-site and will not drain out onto public streets .
It should also be noted that there will be a number of low areas
around the site to collect drainage, but none of these low areas
1-27-83 -1-
Application No. 83004 continued
will act as a holding pond. Rather, there will be catch basins
within these low areas to collect the runoff and convey it through
storm sewer to the state 's storm sewer in the I-94 right-of-way.
Utility plans for the site are being designed by the City 's
Engineering Department and are general in nature at this time,
indicating to the Planning Commission necessary service to the
project site.
The landscape plan is generally designed to preserve good solar
orientation for the structures. Shade trees tend to be planted
south of structures to provide shade in summer and allow sun light
to pass through in winter. Coniferous trees which are full year-
round -and act as wind-breaks are planted north of structures. There
is a good variety of plantings overall, though the sizes tend to
be on the small side (shade trees: lh"-1k" diameter; conifer and
decorative trees: 3' to 6 ' high) . Shade trees include Marshall's
Green Ash, Redmond Linden, Red Maple and Hackberry. Decorative
trees include: Mountain Ash, Russian Olive and Radiant Crab.
Conifers consist of Black Hills Spruce and Ponderosa Pine and are
located adjacent to the freeway right-of-way and north of Building A.
(Note: we have experienced some difficulty with these two conifers
on previous projects and would recommend considering a different
specie of spruce and pine. ) In addition, there are smaller shrubs
including 'VanHoute Spirea ( ) , Honeysuckle ( ) and Mockorange ( )
located primarily adjacent to parking lots and pedestrian ways.
Finally, there are 11 trees of unspecified variety which will remain
primarily on the townhouse site.
The Zoning Ordinance requires 10 six-inch diameter trees for Building
B, 11 for Building A, and 5 for the townhouse project. These have
not been provided. Vegetable garden plots are planned in the area
north of Building B. Landscaping for the plaza area, south of
Building A, has not yet been specified, but generous planting areas
are shown on the ground floor plan.
The building exterior of the two main buildings will be brick. The
color is not yet specified. Building A (the condos) is a five storey
building;. Building B is three storeys above grade. Each of the units
will have a triangular screen porch which protrudes out from the main
wall of the building. One face of this screen porch will be walled
off to allow maximum solar exposure and minimize winds from north,
east, or west. Another face will be window space to allow entry
of the sun's rays. The last face opens to the apartment or condo
unit. Building A will have 48 two-bedroom units, 10 one-bedroom, ,
and 15 one-bedroom-with-den units. Building B (apartments) will
have 33 one-bedroom units , 6 one-bedroom-with-den, and 26 two-bedroom
units. Both buildings will be equipped with an automatic fire ex-
tinguishing system. A landscaped plaza, 72 ' x 108 ' in area, and
raised to first floor level is proposed south of Building A.
The townhouses are in clusters of four and six units. All have two
bedrooms; twelve also have .dens. There are two handicapped town-
house units. The exteriors will be horizontal wood siding with
Cedar trim. Garages will be the same exterior treatment, detached,
and situated, to the north of the respective townhouse units to
serve as a partial wind-break. The open area will be occupied by
a patio and a small green space. - Staggered board Cedar privacy
1-27-83 -2-
• Application No. 83004 continued
fences will extend between units and garages to separate each
patio area.
Altogether, the plans appear to be in order and approval is recom-
mended, subject to at least the following conditions :
1. Building plans are subject to review and approval by the
Building official with respect to applicable codes
prior to the issuance of permits.
2. Grading, drainage, utility and berming plans are f
subject to review and approval by the City .Engineer,
prior to the issuance of permits .
3. A site performance agreement and supporting financial
guarantee (in an amount to be determined by the City
Manager) shall be submitted prior to the issuance
of permits to assure completion of approved site
improvements.
4 . Any outside trash disposal facilities and rooftop
mechanical equipment shall be appropriately screened
from view.
5. Building A and Building B are to be equipped with
an automatic fire extinguishing system to meet NFPA
standards and shall be connected to a central
monitoring device in accordance with Chapter 5
of the City ordinances .
6 . Plan approval is exclusive of all signery which is
subject to Chapter 34 of the City ordinances .
7. B612 curb and gutter shall be provided around all
parking and driving areas.
8. Building permits for Buildings A and B are subject
to completion of the rezoning process (description
of the land in the Zoning ordinance) and filing
of the plat at Hennepin County.
9 . Plan approval acknowledges proof-of-parking for
40 spaces on Lot 2 (Building A) and 38 spaces on
Lot 1 (Building B) . These parking stalls shall be
installed if the City determines that installed
parking spaces are insufficient to meet demand.
1-27-83 -3-
Planning Co[imlission 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 PAIN/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 forth 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.
1-13-83 -1-
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 t;!e 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-expansioi, 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
1-13-83 -2-
of the nonconforming use. It should be noted that the Howe, Inca 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 annearances 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 77039.
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.
1-13-83 -3-
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2000 First Bank Place West February 10 , 1983 C
Minneapolis
Minnesota 55402
Telephone 612-333-0543
Ronald Warren
Clayton L.LeFevere Director of Planning
Herbert PLefler
J. Dennis O'Brien City of Brooklyn Center
John E.Drawz 6301 Shingle Creek Parkway
David J.Kennedy Brooklyn Center, Minnesota .55430
John B.Dean
Glenn E. Purdue
Richard J.Schieffer Re: Response to Questions of Planning Commissioners
Charles L.LeFevere Regarding Howe, Inc. Right-of-Way Acquisition
Herbert P Lefler III
Jeffrey J.Strand
Mary J.Bjorklund Dear Ron:
John G.Kressel
Dayle Nolan
Cindy L.Lavorato You have requested that I respond to questions put to
Michael A.Nash you by the Planning Commission regarding any possible
R. Komarek legal disadvantages to a proposal by Howe, Inc. to
J ethD.Moran acquire a parcel of land from the Minnesota Highway
Department which lies adjacent to the Howe property at
Brooklyn Boulevard and 49th Avenue. My understanding is
that this small parcel of property was purchased by the
Highway Department approximately ten years ago with the
intention that the property would be used for right-of-
way for T.H. 152 in the vicinity of the Howe fertilizer
site. This property was at that time, and remains zoned
for industrial purposes in the same classification as
the Howe fertilizer site.
The questions which I see arising are as follows:
1. The right-of-way parcel being acquired has never
been used for the production of fertilizer and
therefore has no status as a nonconforming use. If
it is annexed to the Howe site, will it acquire
status as a nonconforming use?
2. A related question is •whether or not the acquisi-
tion and annexation of the parcel to the Howe site
will constitute an expansion of a nonconforming
use.
3. What means of analysis do we have to determine
these questions?
February 10, 1983 Page 2
Ronald Warren
First, we must recognize that the Howe property and the
proposed right-of-way acquisition parcel are zoned for
industrial purposes and approximately 90% of the acti-
vity which goes on at the Howe fertilizer site is per-
mitted under c-,ur zoning ordinance. The only function
which is not permitted, and is therefore a nonconforming
use, is the production of ammoniated fertilizer. There-
fore, our inquiry should be related directly to the
ammoniation process which is basicly a mixing and heat-
ing process which results in a chemical reaction to the
product. (For our purposes here we can ignore the
structural nonconformities as to setback, buffered
areas, and other matters. )
I have reviewed my research notes and have updated my
research which was originally done in 1979 with respect
to the expansion of a nonconforming use. There are
additional cases but none of them deal with an expansion
by the acquisition of land. From those cases,` Freeborn
ys.' Claussen, 203 N.W. 2nd 323 (1972) West Zoning Key
Number 329, together with a couple of cases from other
jurisdictions yields the following principals:
1. Any change in operation or function, and any con-
struction which extends the useful life of the non-
conforming use is considered to be an expansion and
is prohibited. This is the Claussen case in which
an excavator was using a parcel of land for the
storage and repair of his equipment. Thereafter,
the zoning ordinance restricted the land for resi-
dential purposes which made his storage and repair
operation a nonconforming use. He sought to build
a building to house the equipment while he was
making repairs and the Court ruled that this was an
expansion of his nonconforming use.
2. If there is an increase in the volume which is
traceable to the additional land, this could be
considered an expansion of the nonconforming use.
There are no specific cases dealing with volume and
this is a weaker argument than the previous one but
it nonetheless does exist.
3. Changes which increase the profitability of the
nonconforming use may be considered to be an
expansion, particularly where physical changes are
made for the purpose of meeting competitive advances
of other installations in the same industry.
February 10, 1983 Page 3
Ronald Warren
One of the problems in dealing with this proposed acqui-
sition is that without some prior agreement, it is very
speculative as to what this additional land will be used
for and it is even more speculative to try to determine
what effect that might have on the production of ammoni-
ated fertilizer. As you know, we have explored with Tom
Howe the possibility of removing most of this specula-
tion by entering into an agreement regarding the proposed
use of the right-of-way parcel and the effect of that
use on the question of expansion. Those discussions
with Tom Howe are . summarized as follows:
Howe, Inc. will agree with the City as follows:
1. The right-of-way parcel will be used exclusively
for parking, landscaping, access and driveway
purposes;
2. The size of the present parking variance (which we
believe to be a reduction in required parking
spaces from 110 to 68) will be decreased by the
number cf additional parking spaces made available
by the right-of-way parcel acquisition;
3 . The area to the west of the so called middle
building which is currently designated for employee
parking will be used for setback, buffer or access
road purposes in the event that parking is dis-
continued at that location because of the addi-
tional parking made available by the right-of-way
parcel;
4. No additional storage, sales, storage of rental
equipment or other active uses will be made of any
of the Howe .fertilizer site which is made available i
as a result of the increased parking facility being
provided by the right-of-way parcel;
1
5. • The right-of-way parcel would be platted and com-
bined with the main Howe fertilizer plant site;
6 . Howe, Inc. would discontinue its present appeal and
waive the right to challenge the propriety, author-
ity and reasonableness of the stipulation agreement,
but would not waive its right to sue if the City
were to violate the agreement.
February 10 , 1983 Page 4
Ronald Warren
The City, as its part of the bargain would do the
following:
1. Make a finding that no expansion has occurred under
the circ,umstances 'set out in the stipulation agree-
ment;
2. Make a finding that the life of the nonconforming
use (the ammoniated fertilizer process) has 'not
been extended as a result of- the right-of-way
acquisition;
3. Make a finding that no increase in volume of
ammoniated fertilizer is directly traceable to the
right-of-way acquisition;
4 . Make a finding that no increased profits from the
ammoniated fertilizer are directly related to the
right-of-way acquisition;
5 . Agree to process the acquisition of the right-of-
way by Howe , the platting of the property and any
other ordinance required approvals in accordance
with City ordinances.
If both parties enter into these agreements it is my
opinion that the acquisition and proposed use can be
accomplished without violating our ordinances or jeo-
pardizing the gains which we obtained in the previous
lawsuit. Please give me a call if you have any ques-
tions or comments.
Sincerely,'
LeFEVERE, LEFLER, KENNEDY,
'BRIE & DRAWZ
Ric and J. c ief
RJS/cd