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HomeMy WebLinkAbout1986 02-27 PCP Planning Commission Information Sheet Application Nos . 85038, 85039 Applicant: Robert E. Schell Location: 412 - 66th Avenue North Request: Site and Building Plan/Variance These two applications were submitted in December of 1985 seeking approval for an expansion of the dental clinic at 412 - 66th Avenue North. The clinic is made a nonconforming structure by MnDOT's acquisition of the former Sinclair station at the northwest corner of 66th Avenue North and West River Road, and by the widening of 66th Avenue North to the north. The required setbacks from the newly established right-of-way lines (50' from the new Highway 252 and 35 ' from 66th) make the entire building nonconforming as to setback. Both applications were tabled at the Com- mission 's December 17, 1985 meeting with direction that further information be sought from MnDOT as to the eventual location of the Highway 252 right-of-way line (see minutes attached) . The Commission indicated on December 17th that it could not recommend approval of the variance and site and building plan as submitted. City staff contacted the District 5 office of MnDOT on January 23, 1986 (after the minutes of the December 17th meeting were approved) and requested further definite information on the eventual location of the right-of-way boundaries. On February 4, 1986, staff received a letter from Gregory Felt of the MnDOT District 5 office. Mr. Felt transmitted a map of the area showing the Highway Department's planned roadway layout. On it, Mr. Felt indicated a "possible new right-of-way line. " The letter (attached) indicates that the line shown on the map is "an approximate location. An exact location will not be determined until after construction of T.H. 252 has been completed." The map transmitted does not give any dimensions to indicate the precise location of the "possible right-of-way line." It scales about 50' from the east lot line of the clinic property for the north portion of the lot, but tapers to zero at the southeast corner of the lot. The possible right-of-way line, as scaled, would still leave a large portion of the existing buildina within required setbacks . The proposed addition to the north side of the building would probably meet set- back requirements . Our response to the information provided by MnDOT is that it is too approximate, in that it gives no specific dimensions to locate the right-of-way line, and that it is too tentative. There is no commitment in the letter that this approximate line will , in fact, be the future right-of-way line. Based on the uncertainty of the information at this time, we must recommend denial of both the site and building plan and variance applications . After the right-of-way lines for Highway 252 and for 66th Avenue North have definitely been established, we would suggest that the applicant resubmit his plans with any necessary variance requests. 2-27-86 Planning Commission Information Sheet Application No. 86007 Applicant: City of Brooklyn Center Location : Summit Drive and Earle Brown Drive Request: Preliminary Plat This application by the City is for preliminary plat approval to resubdivide into four parcels the area of land containing and surrounding the Earle Brown Farm. The land in question is zoned I-1 and is bounded on the south/southwest by Summit Drive and on the west, north and east/southeast by Earle Brown Drive. Most of this land was recently subdivided for conveyance purposes into nine tracts of a Registered Land Survey (R.L.S. ) under Application No . 85041 . The proposed subdivision would be a plat known as Brooklyn Farm. Lot 1 is the site of the Earle Brown Farm. Lots 2 and 3 are parcels on the west side of the plat and will be developed in a two-phase office complex by Ryan Construction Company. Lot 4 is the southeasterly parcel containing the old Summit Bank building. This lot is presently being planned for development with a high-rise elderly housing complex. The lot areas are as follows: Lot Area Proposed Use Lot 1 6.5 acres Mixed Uses Lot 2 6.2 acres High-rise Office Lot 3 5.9 acres High-rise Office Lot 4 7.1 acres High-rise Residential The proposed plat shows an existing utility easement across the southeastern tip of Lot 3 and roughly the middle of Lot 4, running from Summit Drive across to Earle Brown Drive. The development of the property with high-rise residential buildings closely associated with the Farm complex will require the relocation of these utilities southward. A recommended condition of approval is that the new utility easement be shown on the preliminary plat prior to final plat approval (easements are not shown on final plats) . Another important planning issue for this entire plat is impact of the interim regulations of the Shingle Creek Watershed Management Agency. These regulations require that both the quality of stormwater runoff and its rate of flow be controlled. To meet the regulations will require the development of a ponding system for water retention and skimming devices to insure an acceptable level of water quality. This areawide grading and drainage plan must be approved by the Shingle Creek Water- shed District. Such approval should be obtained prior to final plat approval . Also necessary before final plat approval will be the execution of necessary ease- ments for stormwater retention areas throughout the plat. Such retention will primarily be provided by a holding pond within the Ryan office development. However, a secondary pond may be necessary within the residential development on Lot 4. 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. 2. The final plat is subject to the provisions of Chapter 15 of the City Ordinances . 2-27-86 -1- Application No. 86007 continued 3. The following easements shall be indicated on the preliminary plat prior to final plat approval : a) A utility easement for sanitary and storm sewer through Lot 4. b) Stormwater retention areas for ponding of runoff. 4. The plan for grading, water retention and water quality for the entire plat shall be approved by the Shingle Creek Watershed Management Commission prior to final plat approval . 2-27-86 -2- 1 Planning Commission Information Sheet' Application No. 86009 Applicant: John B. Lescault Location: 6142 Brooklyn Boulevard Request: Appeal This application is an appeal by John B. Lescault of a determination in 1984 that the chiropractor's office in his residence is a special rather than a permitted home occupation. The chiropractor's office is located at 6142 Brooklyn Boulevard. The property is zoned R1 and is bounded on the west by Brooklyn Boulevard, on the north by 62nd Avenue North and on the east and south by single-family homes. Dr. Lescault's chiropractic office was treated as a special home occupation following a request by Dr. Lescault to expand his office and residence in the spring of 1984 which initiated a staff evaluation of the operation and a discussion with the Planning Commission on June 14, 1984 as to how to respond to the proposed expansion. Dr. Lescault filed a special use permit application on July 11, 1984. The permit was approved by the City Council on August 6, 1984, subject to certain conditions, among them that the home occupation could not expand beyond its existing limitations in the dwelling. Other conditions pertained to the hours of operation, parking, the employment of a non-resident, the requirement for a fire extinguisher, and to signery. The appellant has submitted a letter (attached) in which he argues that the reclassification of his home occupation from a permitted use to a special use is "unreasonable, arbitrary, capricious, unlawful, unconstitutional and void." He states that he moved to Brooklyn Center in 1975 and set up a chiropractic office in his home as allowed by Sections 35-900 and 34-110 of the City Ordinances. The office, he states, was 489 sq. ft. and consisted of three treatment rooms, a reception area and secretarial area. He points out that the remaining floor area of the house, including basement was 2,081 sq. ft. He goes on to explain that the expansion he proposed in the spring of 1984 would have added two rooms within an area of 12' x 20' to the home occupation area. The appellant's letter goes on to say that the home is located on Brooklyn Boulevard which has traffic volumes of 23,000 to 28,000'cars per day. He next asserts that "on June 14, 1984, at a hearing of the Planning and Zoning Commission, the Planning and Zoning Commission apparently on advice of City staff, considered that my home occupation had gone beyond the point of being secondary and incidental to the residential use of the premises." (See minutes attached) . Dr. Lescault then states that he received a letter on June 26, 1984 informing him that his home occupation had been reclassified as a special home occupation (See letter attached) . Dr. Lescault then offers his chief argument. In essence, he states that: 1) my home occupation was considerd a permitted use in 1975 as a "professional office"; 2) the 1982 ordinance revisions relating to home occupations were merely a clarification and left the category of "professional office" in the permitted use classification; 3) my home occupation has not changed from being a professional office; 4) therefore, my chirporactic office should still be classified as a permitted use. Clarification of Certain Facts Before responding to Dr. Lescault's main argument, we would like to clarify certain 2-27-86 -1- Application No. 86009 continued matters referred to in Dr. Lescault Is letter. First, the proposed expansion of the home office area would not have been only the 12' x 20' area devoted to new rooms (the Plans submitted showed 14' x 201 ), but also an approximate 4' x 36' area devoted to hallway and restroom. The gross floor area devoted to the home occupation, as shown on the plans submitted by Dr. Lescault on July 11, 1984, amounts to over 860 sq. ft. (an area slightly larger than 23.5' x 36' as shown on the plans) . Second, the discussion of the Lescault home occupation at the June 14, 1984 Planning Commission meeting did not take place in the context of a formal hearing or review of a formal planning application. The discussion was initiated by the staff who sought direction on how to proceed in response to Dr. Lescault's proposed building expansion. There was no vote by the Planning Commission and no formal action was taken. This discussion was purely advisory in nature, on the question of procedure. It was not an action of the Commission to approve or disapprove, to classify or reclassify. Finally, the Commission made no finding or conclusion, either at the June 14, 1984 meeting or at the July 26, 1984 meeting (See minutes attached) that Dr. Lescault's home occupation, as it existed, had "gone beyond the point of being secondary and incidental to the residential use of the premises." The Planning Commission and City Council did conclude, in their actions of approval of the special use permit, that no expansion of the home occupation could be allowed (even this action was based on the standards in Section 35-220, not on the specific restrictions of home occupations in Sections 35-405, 35-406, and 35-900) . However, it is inaccurate to suggest, as Dr. Lescault does, that his reclassification from permitted to special home occupation was based on a finding that the home occupation was no longer secondary and incidental. Such a finding would have required the diminution or elimination of the home occupation since both permitted and special home occupations must be secondary and incidental to the residential use of the premises (See Section 35-900 attached) . Such a finding was never made by the Planning Commission or City Council. The findings on which the reclassification from permitted to special use was made are contained in the first condition of approval of Application No. 84024 by both the Planning Commission and City Council. That point reads as follows: 111. Special use permit approval is deemed necess for the home occupation in question in light of the following factors: a. the extent of the home occupation use within the dwelling unit b. the level of traffic generated by the home occupation c. the use of equipment not normally found in a residential dwelling unit d. the employment on the premises of one nonresident employee." Analysis The appellant argues that nothing substantial has changed about his home occupation or the City's ordinance since 1975. Therefore, there are no grounds for a reclassification. The action to reclassify Dr. Lescault's chiropractic office from a permitted to a special home occupation was based on a combination of interpretation of the ordinance's intent and the evidence that was available on August 6, 1984 (the date of the City Council action) . a) Interpretation Findings (a) and (b) of point #1 of the Council's action are not factors explicit in the Zoning Ordinance for distinguishing between permitted and special home 2-27-86 -2- Application No. 86009 continued occupations. We believe that at least point 1 (traffice generation) is implicit in the overall scheme of the ordinance's home occupation provisions. Those home occupations listed as permitted in Section 35-900 -- dressmaking, secretarial services, individual music or art instruction, individual hobby crafts, professional offices, etc. -- are businesses which have only occasional customer traffic. In such businesses, the person performing the activity is about as likely to go out to the customer as for the customer to come to the premises. In special home occupations -- barber and beauty shops, photography studios, group instruction, saw sharpening, small engine repairs, etc. -- the customer traffic is more regular and directly related to the success of the business. Dr. Lescault's chiropractic office has been classified as a special home occupation partly because it generates customer traffic (20-25 patients per day) which is at least as much as, if not more than, most special home occupations. Traffic is an implied concern of Sections 35-405 and 35-406 by virtue of the regulation of on-street parking (see attached) . We would like to state clearly for the record that the City's grouping of the chiropractic office with home beauty shops and other special home occupations is in no way based on the assumption or meant to imply the idea that Dr. Lescault is not a professional. We concede that Dr. Lescault does operate a "professional office," but we feel that a more general reading of the City's ordinance would support the conclusion that this type of professional office is more akin to a special than a permitted home occupation. Staff would concede that the area devoted to the home occupation, while perhaps indicative of a level of activity, is nowhere expressly employed as a factor for distinguishing between permitted and special home occupations. It must also be acknowledged that permitted home occupations may involve a great deal of time spent and may be the sole source of income. A home occuation is considered permitted or special on the basis of land use impacts, not income derived or even hours worked. We would, therefore, recommend that the point (a) be eliminated from the Council's reasoning in determining that the chiropractic office is a special home occupation. b) Evidence Dr. Lescault was contacted by letter of June 26, 1984, informing him that it was "the judgment of the staff and of the Planning Commission, at this time, that your home occupation is more similar in its land use effects to those home occupations classified in our ordinance as special home occupations than to those classified as permitted." Dr. Lescault was told that the proposed expansion would be evaluated as part of the special use permit application and was asked to provide information on the nature of the business, hours, parking, plans for a nonresident employee, a survey of the property and other items. Dr. Lescault was also informed in the letter of his right to appeal the determination contained therein (namely, that his home occupation was a special use) . Dr. Lescault chose not to appeal at that time, but has been directed by the district court to exhaust such an administrative remedy before concluding his lawsuit against the City. Dr. Lescault responded to the June 26, 1984 staff letter by filing an application for a special use permit with an informational letter, building plans, and a site survey on July 11, 1984. The letter submitted by Dr. Lescault (see attached) contained the following points which were taken into account in ultimately classifying the home occupation as a special use: "Regarding the question of whether I desire to have a nonresident employee or would it be my desire sometime in the future to have a nonresident employee: Part of my tentative plan is to bring in an intern from our local college." 2-27-86 -3- Application No. 86009 continued It was primarily the above statement of the appellant that was relied upon to determine that a nonresident employee would at sometime be present in the home occupation. A nonresident employee is not permitted in a permitted home occupation. It has always been City policy and a part of the ordinance in effect in 1975, to classify any home occupation with a nonresident employee as a special home occupation, even if the person were engaged in activity otherwise listed as a permitted home occupation (such as dressmaking, secretarial services, etc.) . Dr. Lescault has since stated in court that an intern would not be paid directly, would not add clients, and would be present for an educational experience only to exchange information about the practice of chiropractic. It has also been revealed through court testimony that another chiropractor comes to the home when Dr. Lescault is out of town to take over patient appointments. Staff have also noted that the daughter of Dr. Lescault's wife has come to the home to answer the office phone and takes messages when the Lescaults are out of town. Staff's interpretation of the ordinance has generally been that anyone who lives off the premises and comes onto the premises to be engaged in the activity of a home occupation, other than a customer, is a nonresident employee. The City does not investigate into the contractual arrangement between such a nonresident and the resident operator. Basically, if a nonresident is on the production end, as it were, of a good or service rather than the consumption end, he/she has been considered an employee of sorts. It seems clear to us that the activities of nonresidents at Dr. Lescault Is office clearly indicate that a nonresident is often employed on the premises in the home occupation. There is even a question of whether more than one nonresident may at times be working in the office when Dr. Lescault and his wife are not present. This would exceed the limitations not only of Section 35-405 under which Dr. Lescault wishes to operate, but Section 35-406 governing special home occupations as well. Another piece of evidence which was considered by the Planning Commission and City Council in reclassifying the chiropractic office as a special home occupation was the fact that Dr. Lescault uses an x-ray machine in diagnosis of patients. This fact was reported by former Building Official Will Dahn who had visited the property in the spring of 1984 in a private capacity as a patient. The x-ray equipment has been considered to be "equipment not customarily found in a residential dwelling unit" which is allowed under Section 35-406 in special home occupations, but is not allowed under Section 35-405 for permitted home occupations. Dr. Lescault also has indicated that he uses a thermography device which checks temperature variance on the surface of the skin. Staff certainly feel that x-ray equipment and a thermography device are equipment not normally or customarily found in a residential dwelling unit. The use of such equipment was cited by the City Council in point 1 d of its action approving Application No. 84024. Many home occupations involve somewhat unusual equipment such as: drafting table, special sewing machine, word processor, metronome, special tools, etc. We believe x-ray equipment is unusual enough that it would classify a business as a special home occupation. If, however, the Commission feels that noise and odor are the real concerns, the ordinance might be amended to address a narrower range of equipment or leave equipment out as a consideration altogether. Nevertheless, under existing ordinance, staff feel it is reasonable to consider the chiropractic office a special home ocupation because of the use of x- ray equipment. 2-27-86 -4- Application No. 86009 continued Conclusion The argument can certainly be made (and probably will) that the Planning Commission discussion of June 14, 19824 and the staff letter of June 26, 1984 relied solely on interpretation of implicit factors in arriving at the position that the chiropractic office at 6142 Brooklyn Boulevard should be considered a special home occupation. It will also probably be argued that such interpretations were erroneous and that the entire procedure of acting on a special use permit application was invalid. Staff would acknowledge that the interpretation of the chiropractic office as a special use is reasonably debatable. The letter of June 26, 1984, implied as much by saying that: "it is the judgment of the staff and of the Planning Commission, at this time" (emphasis added) "that your home occupation is more similar in its land use effects (emphasis added) to those home occupations classified in our ordinance as special home occupations than to those classified as permitted." Dr. Lescault was also told of right to appeal that determination and chose not to do so at that time, but complied with the special use permit process. Staff would still argue that the judgment contained in the June 26, 1984 letter was sound. However, even if the initial judgment based on an interpretation of implicit factors were ruled invalid, the evidence which has been provided in the course of the special use permit process and in court testimony leads us to consider that the explicit factors in Sections 35-405 and 35-406 relating to a nonresident employee and equipment have been satisfied, that the home occupation is a special use because of the use of equipment not normally found in the home and because of the employment of nonresident persons in the function of the home occupation. Accordingly, staff would recommend that Application No. 86009 be denied and the ruling that the chiropractic office at 6142 Brooklyn Boulevard is a special home occupation be affirmed on the following grounds: a. The chiropractor's office which draws 20 to 25 customers per day and as many as three (3) at a given time is more similar, in terms of traffic generation, to home occupations classified as a special uses than those classified as permitted uses because of the high level of customer traffic. b. Having a nonresident intern working in the office; having a nonresident take business calls when the Lescaults' are not in town; and having a nonresident chiropractic attend patients in the Lescault office when the Lescaults' are not in town: all constitute the employment on the premises of at least one nonresident at a time in the activity of the home occupation. Such activity on the premises by nonresidents is deemed to require the classification of the home occupation as a special use under the provisions of Sections 35-405 and 35-406 of the Zoning Ordinance. c. The use of x-ray equipment and a thermography device in the home occupation is considered to be the use of equipment not normally found in a residential dwelling unit. The use of such equipment in the home occupation is deemed to require the issuance of a special use permit under the provisions of Sections 35-405 and 35-406 of the Zoning Ordinance. 2-2.7-86 -5- 1 1