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HomeMy WebLinkAbout1987 08-13 PCP Planning Commission Information Sheet Application No. 87012 Applicant: Bill Kelly House Location: 5240 Drew Avenue North Request: Special Use Permit This application for a special use permit to operate a residential treatment facility for 23 mentally ill and chemically dependent adults was considered and tabled by the Planning Commission at its July 16, 1987 meeting. The purpose of the tabling was to gather further information on the proposed residential treatment facility, to give concerned neighbors additional time to further review issues raised and to present this to the Commission for consideration. Pursuant to the request to gather further information, we have already provided the Commission with the following since the July 16 meeting (and also have attached copies with this report) : 1. A judgment in a Connecticut court case: the Connecticut Council of Community Mental Health Centers, Inc. vs. Board of Tax Review for the Town of Greenwich. 2. A July 23, 1987 letter from the Fayor of Golden Valley regarding the Oasis Group Home in Golden Valley along with a memo regarding same from the Golden Valley Human Rights Commission to the Mayor and City Council. 3. A July 20, 1987 letter from Felix M. Phillips, attorney for Bill Kelly House, and an annotated bibliography on the effect of group homes on neighboring property. 4. A copy of Rule 35 governing residential programs for chemically dependent persons. 5. A copy of Rule 36 governing residential facilities for adult mentally ill persons. 6. A list of facilities licensed under Rule 36. 7. A copy of the Public Welfare Licensing Act from Flinnesota Statutes 1986. Fore recently we have received additional information (attached) which is also being brought to the Commission for consideration: 1. An August 3, 1987 letter from Felix M. Phillips, attorney for Bill Kelly House reiterating his objection to the tabling of this application; inferring some questionable interference with his client's contract rights to purchase the property in question by someone apparently involved with the City; noting the dangers this delay is causing his client; and citing the responsibility for damages the City may incur if the applicant is not successful in obtaining the special use permit. 2. An August 7, 1987 letter from the City Attorney regarding the law applicable to the regulation by the City under the Zoning Ordinance, of licensed residential facilities. 8-13-87 -1- Application No. 87012 continued The Commission is encouraged to review all of the information thus far submitted. We have had an opportunity to meet with a group of people representing the neighbors of the proposed facility to review in more detail the nature of the proposal and to discuss their main concerns and objections to the proposal. That group stated they are attempting to research the issues and intend to present to the Planning Commission their findings which they believe will support a denial of this application. The Commission's attention is next directed to the City Attorney's letter which addresses the legal issues relating to this application. First of all, he reviews Minnesota Statutes relating to residential facilities, noting how they are defined and pointing out that requirements of the Statute depend, in part, on the number of residents at such a facility. Licensed facilities serving six or fewer persons must be considered in all respects as though they were a single-family unit. Licensed residential facilities serving from 7 through 16 persons must be considered a permitted multiple-family residential use of property. The City Attorney states ". . .the City must consider residential facilities serving from 7 through 16 persons to be permitted or conditional multiple-family residential uses in all respects as though they were facilties used by other permitted or conditional uses such as ordinary apartment buildings. The City does have the authority to impose additional conditions which are necessary to protect the residents of the facility. However, this authority is extremely limited." He goes on to cite the Northwest Residence Case relating to conditions which can be imposed. He adds that in order for additional conditions to be valid, the City would have to establish: 1. That the condition is necessary for the protection of the residents, rather than the public at large; 2. That the requirement is appropriate due to the characteristics of a particular site rather than one which is felt to be necessary to all such facilities in the City; 3. The regulation would have to relate to a matter which is not already subject to regulation by the Department of Human Services, such as floor space requirements. The City Attorney's letter goes on to note that with regard to residential facilities serving more than 16 persons (as is the case with this application) that the Statutes do not impose any additional constraints on regulation by the City, although, he cautioned that the general policy statement of Minnesota that ". . .handicapped persons and children should not be excluded by municipal zoning ordinances or other land use regulations from the benefits of normal residential surroundings" should be kept in mind. He adds that the City is limited both by the doctrine of State preemption and constitutional guarantees of due process of law and equal protection in regulating these facilities. The City Attorney's letter goes on to explain the doctrine of State preemption by noting that cities are creatures created by the State and have only those powers 8-13-87 -2- Application No. 87012 continued which are delegated to them by the legislature. Cities may not impose regulations or requirements in areas where the State legislature has intended to preempt the field of regulation. Certain aspects of the regulation of residential facilities have been preempted by the State of Minnesota. The City Attorney cites, in his letter, various examples. The City Attorney goes on to note a second limitation on the City that being constitutional. He states "both the due process and equal protection clauses require that laws and regulations be rationally and reasonably related to the accomplishment of a legitimate public purpose and that any difference in the treatment under the law can be explained in terms of the accomplishment of that purpose." His letter goes on to cite various examples regarding this constitutional doctrine. The letter goes on to discuss the concerns which have been expressed by opponents of the Kelly House, namely adverse affect on property values and public safety concerns. He points out that both of these issues are matters which are valid considerations in approving or denying special use permits. The letter implies that at least on a theoretical basis the City could deny a special use permit on the ground that there is substantial and credible evidence that would show that the location of this residential facility in the neighborhood would undoubtedly cause diminution in values of neighboring properties or that it represents an unacceptable threat to public safety. He goes on to state that in order for such findings to be sustained in court, a decision denying a permit on these grounds would have to be supported by credible and substantial evidence rather than unsubstantiated fears. He points out that any given land use may represent some incidental adverse impact on property values or some incidental threat to public safety. The reason for such a denial must again be on the basis of credible and substantial evidence to support the finding. The letter concludes with some cautions and some misgivings he has about how a court might regard the denial of a special use permit and offers this for the Commission's consideration as well. The two chief concerns expressed thus far by those opposed to this application are again adverse effect on neighboring property values and safety concerns posed by the location of this residential facility in the neighborhood. These two points relate to Standards a and b of Section 35-320, subdivision 2 of the Zoning Ordinance which are the Standards for Special Use Permits which the Commission must base its recommendation to approve or deny. Using the information the City Attorney has provided, to deny this application a finding would have to be made on the basis of substantial and credible evidence, rather than speculative and unsubstantiated fears, that the location of this facility would either cause a substantial diminution in surrounding property values and/or it represents a substantial and unacceptable threat to public safety. To date the applicant has provided a bibliography which they purport reviews every available study and demonstrates that group homes do not adversely affect property values or destabilize the neighborhood. The Commission must weigh the facts presented thus far, or seek additional facts they feel are relevant to the issue and make their recommendation to approve or deny on that basis. It is my understanding that neighboring property owners have not yet totally assembled their research on the subject and may request some additional time. The Commission may, or may not, desire to proceed in this manner. It should be kept in 8-13-87 -3- Application No. 87012 continued mind that the Zoning Ordinance allows the Commission up to 60 days to make its recommendation to the City Council before an applicant can demand the matter be put on the City Council agenda without a recommendation from the Commission. Thus far, a little less than 30 days of that time has been used. Whether such a request should, or should not, be granted should be dependent on whether or not the Commission believes additional pertinent information can be provided to make a sound recommendation to the City Council. The Commission should not be intimidated in its deliberation by the threat of a lawsuit. The Commission's concern should be to gather the necessary information and weigh what is considered conflicting data, before making a recommendation. The likelihood exists that the City could be drawn into a lawsuit regardless of the decision made. Careful and thoughtful deliberation is the most important aspect of this application at this time. We have included a copy of the previous report given to the Planning Commission on July 16 and also a copy of the Planning Commission minutes from that meeting. The report describes the site and building modifications proposed by the Kelly House and also lists various conditions which had been recommended should the Commission determine to recommend approval of this application. Review and consideration of these matters is also in order. The City Sanitarian has advised me that Condition No. 10, listed in the July 16, 1987 report, should be revised to state that "The facility shall be subject to a City board and lodge license and compliance with these requirements." The Sanitarian has informed me that the Department of Health, in a July 8, 1987 memorandum, has clarified that under State law and rule, medications are not to be delivered by staff of any facility except in a licensed healthcare facility. If a person residing in a board and :Lodging facility (such as Kelly House) needs assistance with medications, that assistance cannot be provided by the facility staff. Someone else, such as, a family member or a public health nurse, has to provide that assistance. A copy of this memo is attached for the Commission's review. This may have some affect operationally on Kelly House with respect to the dispensing of medications. The public hearing on this matter has been continued to this evening and notices have been sent. 8-13-87 -4- Planning Commission Information Sheet Application No. 87018 Applicant: CSM Corporation Location: 3220 County Road 10 Request: Determination The applicant requests a determination that a dance studio use is similar in nature to other permitted uses in the CIA zoning district, or for an ordinance amendment to allow that use in the CIA zone. The use in question is proposed at 3220 County Road 10 in the Brooklyn Crossing office park. The location is zoned CIA and is bounded on the north by single-family homes, on the east by the old F and M Bank building and Northway Drive, on the south by County Road 10, and on the west by the Brooklyn Crossing office tower (5 storeys) . Dance studios are not expressly permitted in any zoning district, but have been treated in the past as an educational use, permitted in the C2 zoning district. Uses permitted in the CIA zoning district are the same as those allowed in the CI zoning district, except there is no height limitation. The applicant has submitted a letter (attached) in which he makes brief arguments as to why a dance studio should be permitted in the CIA zoning district. He argues first of all that, in the opinion of CSM and the Fred Astaire School of Dance. dance studios are simply similar in nature to other uses permitted in the CIA zoning district. Secondly, he argues that, like other uses permitted in the zone, the dance studio will be a destination type business and will not be catering to "drop in" type traffic. All sessions are to be by appointment only and not open to the general public. Finally, the applicant states that the dance studio is a service business like other service businesses allowed in the CIA zoning district. Probably the best argument for allowing the dance studio in the CIA zoning district is that it is a destination type of business with no walk-in traffic. In this way, it is similar to a photography studio where a service is rendered generally on an appointment-only basis. Other than educational uses and medical and health uses, the uses permitted in the C2 zoning district generally involve walk-in traffic. It would appear that the reason educational uses, hospitals, and medical and dental laboratories are allowed only in the C2 zoning district is the scale of such uses as compared to a studio or a clinic. The proposed dance studio would offer instruction to groups of 1 to 5 persons during the week and then open up the dance floor on Friday nights to groups as large as 50 people. While this is a large number of people at one time, it is not expected to create parking problems as long as other uses in the complex of buildings are primarily office in nature. To recommend in favor of the applicant, the Commission must either make a determination that the proposed dance studio is similar in nature to other uses permitted in the Cl zoning district (see section 35-320 attached) , or recommend an ordinance amendment to allow dance studios (or some encompassing category of uses) as a permitted or special use in the Cl zoning district. To recommend against the applicant, the Commission should make a finding or determination that dance studios are educational uses which are only permitted in the C2 zoning district. As presently written, staff feel that the Zoning Ordinance supports the latter determination. We would, therefore, recommend an ordinance amendment if the Commission agrees with the applicant that this use should be permitted in the C1 zoning district. Such schools are allowed by conditional use permit in Brooklyn Park and Plymouth, but are only allowed in the B-3 zone in Bloomington. 8-13-87 G f C F I i k F