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HomeMy WebLinkAboutPC79017 - 3/15/79 - 4821 Xerxes Ave1 i ! f:.r r i• :fir. .r. �..y/ ,, •., o, i? r/ � t �rl 1 i Ca t i ;; 1 r , M79017 Pl �asc ;'1^i nt C:'I cn: i, - u!^ it ; S1:r: i.oc•.t ?;. or r',''�!)��^' y _ 4821 Xerxes Ave. No _.--- _.-•----.____ ____..._._ __�.___ _._------._..._____..__. __..__ ,,. -,,;?, of r'; oE;C, 1,j Lot 1 to 4 - Blcok 4 Brooklyn anor Add, es s 4821 Xerxes Ave . No . " • ,rI. William Kranz, Inc. Phone?., 535-1030 1c�.. r� 8424 Noble Ave. No. r.0110 425-5262 t`o • _....._____.________.___..__-_: X— 1r�C'iur'c'Ce ----- Site !'.'rlt,. Iar; P" jit Spocial Use Permit Other: Description ol' Pc c._,r'sz: Variance from zoning ordinance to rebuild a non -conforming use xes Aveements nue Northset back and buffer requir other than that contained in e:, p ,r �I iya 1. e PLAi\IN i''; r Cn;,A:.', Q.•Q_�l', Il :; it P.0 CI- '�!:i1CC'.Ciil.?+:ri': Ip �^��'i•;yCl Ll:�r,"j�:� E.i;-1 � J/j day of '?.'7 `�-� `��ii�`fc�Gt l(_� •!..i'� � -I l.l� l ii�'�.. Cha i 1 i?=!Ii �1 1 •i�t�r �•U t.'r,..i 1�C.: il1l'�.! �Lli�1 � � CI r3 � t?T ��� .. �'� / �� v'� L�.?'� .il(.. �l?l i U!: lo. ii t _ Planning Commission Information Sheet Application Nos. 79016 and 79017 Applicant: Howe, Inc. Location: 4821 Xerxes Avenue North Request: Site and Building 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 • i r i L the l ..... J. t o .. L. .: l .,I r. r. n v. v 1% v % /1 cViiS iSt c, a request, by the apNi scant w r�.wu � �� u�� u�.r.� v.. building constructed in similar design, runction ana iocaLiun i.0 Ww L ui 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. Presently, 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 1' 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 because 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 literal 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 the C i Ly Cuune i i 5iia i i in nu case JJerui i L as a var i aiit,e, any use Lila L i� iiG L 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 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. 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 �,.. Lhe neiyhburnuud in which the parcel of land -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 CITY OF OOKLY C EN.L.Vin i May 17, 1979 Mr. Bill Howe Howe, Inc. 4821 Xerxes Avenue North Brooklyn Center, MN 55430 Dear Mr. Howe: 6301 SHINGLE CREEK PARKWAY BROOKLYN CENTER, MINNESOTA 55430 TELEPHONE 561-5440 EMERGENCY -POLICE -FIRE 561-5720 This letter is to inform you of the procedure for Planning Commission and City Council review of site and building plans for the construction of a building to replace the building destroyed by fire on January 6, 1979 at Howe, Inc. At the City Council meeting on Monday, May 14, 1979, your attorney, on behalf of Howe, Inc., withdrew Planning Commission Application No. 79016 which was a re- quest for site and building plan approval, and Planning Commission No. 79017 which was a request for a variance. Your attorney indicated that Howe, Inc.. would be submitting a new plan for review. The City Council, by consensus, acknowledged the withdrawal of these applications. Based on that acknowledge- ment, Appplication Nos. 79016 and 79017 have been closed. The City Council proceeded to make certain findings relating to the matter of rebuilding. The action taken by the City Council was as follows: 1. That Howe, Inc. was a valid use in 1946 and became a nonconforming use under the City Zoning Ordinance in 1957. 2. That the 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. The City Council also requested the City Manager and the City Attorney to review and report on any options available to the City to set a specific time for the phasing out of nonconforming uses and any potential City liability under such a plan. Following the April 19, 1979 Planning Commission meeting, the staff had the opportunity to meet with you and your representatives to discuss and review the Planning Commission's recommendations and a possible new site plan that you were then considering. The following is a list of items relating to either previously discussed matters or matters which should be kept in mind when sub- mitting a new plan for Planning Commission and City Council review: Mr. Bill Howe Page 2 May 17, 1979 1. A full set of drawings including a site plan, drainage plan and landscape plan should be submitted which comprehends all current ordinance standards such as parking provisions land- scaping, buffering and setbacks. 2. A certified site survey drawn by a registered engineer or land surveyor showing pertinent existing conditions accurately dimensioned should be submitted. 3. Copies of any agreements or lease arrangements Howe, Inc. has with the Soo Line for use of certain portions of the Soo Line property must also be submitted. Presently Howe, Inc. uses Soo Line property for outside storage as well as vehicle access to some of the buildings on the site. It has also been noted that a po-rtion of the south building is on Soo Line property. 4. Copies of any agreements or arrangements Howe, Inc. has with MN/Dot for use of, or access over, highway right-of-way property by 49th and Brooklyn Boulevard. Any correspondence or documentation from MN/DOT that would indicate the property is considered something other than highway right-of-way property should also be submitted. 5. A new application for site and building plan approval will have to be executed at least two weeks prior to the Planning Commission's next regular business meeting, which is June 14, 1979. 6. A replatting of the Howe, Inc. site will also have to be undertaken as per City Ordinance which states: "multiple parcels 6fland which are contiguous and adjacent and which are proposed to serve a single development and which are under common owner- ship shall be combined into a single parcel through platting or registered land survey." 7. The City staff will be reviewing the plans and ordinance require- ments in terms of the entire site which is in keeping with the finding made by the City Council that the building destroyed by fire on January 6, 1979 was part of the entire complex. This is also in keeping with past City policy dealing with similar matters. 8. The size and type of material, as well as uses permitted in the building, are matters not yet clearly defined and are subject to further clarification and/or review. 9. Any requests for variances will have to meet the ordinance Standards for Variances contained in Section 35-240 (2) (copy attached). We received a preliminary site plan submitted by Cletus Klein on May 10, 1979 and, it is my understanding, he will be submitting preliminary drainage and landscaping plans shortly. The staff will review these preliminary drawings as soon as possible and attempt to arrange a meeting to discuss any needed revisions prior to submitting the matter for the Planning Commission's review. -44r . Bill Howe Page May 17, 1979 The City Manager has requested me to inform you that he will be researching various alternatives associated with an accelerated phase out of nonconforming uses. Also, the City Manager is prepared to review and discuss further the matter of the dynamiting permit which was deferred by the City Council, at your request, on May 14, 1979. If you have any questions or comments regarding these matters, please contact either Gerald Splinter, or myself. Sincerely, Ronald A. Warren Director of Planning and Inspection RAW: mlg cc: Gerald G. Splinter, City Manager Richard J. Schieffer, City Attorney James Russell Cletus Klein Section 35-240 (continued) (h) The applicant or his agent shall appear at each meeting of the Board of Adjustments and Appeals and of the City Council during which the application is considered. Furthermore, each applicant shall pro- vide for the Board or the City Council, as the case may be, the maps, drawings, plans, records or other information requested by the Board or the City Council for the purpose of assisting the determination of the application, (i) The Secretary of the Board of Adjustments and Appeals following the Board's action upon the application, the City Clerk, following the City Council's action upon the application, shall give the applicant a written notice of the action taken. A copy of this notice shall be kept on file as a part of the permanent record of the application. 2. Standards for Variances The Board of Adjustments and Appeals may recommend and the City Council may grant variances from the literal provisions of this ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique and distinctive to the individual property under con- sideration. However, the Board 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. A variance may be granted by the City Council after demonstration by evidence that all of the .following qualifications are met: (a) Because of the particular physical surroundings, shape, or topo- graphical 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 persons presently or formerly having an interest in the parcel of land. Section 35-240 (cont'd) (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. 3. Conditions and Restrictions The Board of Adjustments and appeals may recommend and the City Council may impose conditions and restrictions in the granting of variances so as to insure compliance with the provisions of this ordinance and with the spirit and intent of the Comprehensive Plan and to protect adjacent properties. Section 35-251. APPEALS 1. Appeal Matters The Planning Commission acting as the Board of Adjustment and Appeals shall hear and recommend and the City Council shall make a final deter- mination in the following appeal matters: (a) Appeals from the denial of a building permit made pursuant to the adoption of an official map as provided for in Minnesota State Law. (b) Appeals from an order, requirement, or deter- mination made by an administrative officer in the enforcement of the zoning ordinance, where it is alleged that some error in'interpretation or judgment exists as provided for in Section 462.357, sub- division 6 (1) , Laws of Minnesota. 2. Procedures (a) A written appeal stating the position of the appellant shall be filed with the Secretary of the Board of Adjustment and Appeals at least fourteen (14) days prior to the next regular, meeting of the Board of Adjustment and Appeals. (b) The Secretary shall refer the matter to the Board by placing the application upon the agenda of the Board's next regular meeting. . p, M & C No. 79-9 ..April 17, 1979 FROM THE OFFICE OF THE CITY i,1ANAGER CITY OF BROOKLYN CENTER Subject: Howe, Inc. Variance, Non -Con- forming Use, Site and Building Plan Approval To the Honorable Mayor and City Council: Zoning History of the Howe Fertilizer Site. Ordinances of the City of Brooklyn. Center were investigated, commencing on the date of incorporation in 1911 and continuing through the present date. 77he first ordinance governing the use of land and the construction of buildings was passed on July 10, 1926. It contained typical provi- sions regarding construction, requires a 25-foot setback from any street, and contained a provision which the city attorney interprets to be a forerunner of the Special Use Permit Provision. Such a permit was required for boilers, fuel storage, foundaries, and the like. There is no mention of manufacturing or fertilizer producticn. The information which we have from the applicant is that during the period from 1926 until 1940 when the first comprehensive zoning plan was adopted, the Howe site was used as a transfer point for organic f�rfii 1 i mar (maniirr�l and as n ,toracro and transfer Doint for Dotatoes. •I 111b Ll.'JG W0.J LLV V L l l..lVtll. ll V1 ll�f'�utul�l�t1 Vy l- +� iJ.-v iui-+• •+�+�- u++`' the concept of permitted uses had not yet been established.+ Brooklyn Center's first comprehensive zoning ordinance was passed on April 4, 1940. The 1926 ordinance was not repealed but presumably it ceased to be enforced. The 1940 ordinance carried the typical provisions on non -conforming uses, defined accessory uses as a subordinate building on the sane lot as the main building and clearly incidental to the use of the main building, and specifically stated that no industrial district was being created because the village council found that the general welfare of the community does not require any zoning for industry. However, the ordinance does contain regulations for the industrial district to be used "when and if an industrial district is hereafter described or delineated." The regulations for the industrial district established the concept of permitted uses and included such things as coal yards, truck terminals, warehouses, feed mills, and "other enterprises which the council would find no more obnoxious or detrimental." On June 19, 1946 the village council established the first industrial zone in Brooklyn Center. This land consisted of lots 1, 2, 3 and 4 of Brooklyn Manor Addition except the North 150 feet thereof. The village council minutes state that it was being zoned for "heavy industry". We are informed by the applicant that Howe Inc commenced the production of Chemical Fertilizer in 1946. The ordinance existing at that time did not specifically permit the production of commercial fertilizer. Council minutes and other city records do not indicate the proposed use for the site when the land was rezoned. Commerical fertilizer production could have been approved by the city council by making a finding that it was no more obnoxious than other uses already permitted in the industrial regulation. On the face of the city records the rezoning of the property to heavy industry would permit those industrial uses outlined in the 1940 ordinance, only. On August 14, 1946 Roy Howe was issued a building permit to erect a building on lots 1 , 2, 3 and 4 of Brooklyn Manor. There is no indication of the size of the building or its proposed use. Counsel for Howe Inc. has informed the city attorney that the company began to manufacture chemical fertilizer in 1946. Further information should be obtained from the applicant, including any company records, regarding the use and the building which was established in 1946. Also on August 14, 1946 the Northerly portion of Lot 1, Block 4 of Brooklyn Manor Addition was rezoned to "heavy industry". The counsel minutes state that this lot contains a cement block building. It appears to be unrelated to the Howe operation. On August 31, 1950 a new comprehensive zoning ordinance was adopted. r. ,_• _,_ _, �L ni.n This ordinance carried forward the Nrinuiplc es Lab,lleu Ln l z renardinry industrial uses. Althoi1alh an o c> v was established, the ordinance further stated that "manufacturing and processing or any other use within the industrial district may be permitted upon approval by the village council following at least one public hearing on the grant of the permit." The 1940 ordinance was repealed. This ordinance remained in effect until 1957 when it was replaced by a new comprehensive zoning ordinance. That zoning ordinance established a Limited Industrial District and included the Howe Site within the Limited Industrial District. A review of the permitted uses in the Limited Industrial District indicates that it permitted only "clean" industries, such as food products, electrical appliances, metal finishing and plating, stamping, rubber products and the like. It also permitted offices, warehousing and storage. The manufacturing of chemical fertilizer was not a permitted use. The procedure of special use permits was established and special uses in the Limited Industrial District included fuel storage, chemical research, and "other manufacturing". The records indicate that Howe Inc. did not apply for a special use permit under the "other manufacturing" provision while the 1957 ordinance was in effect. - 2 - The comprehensive zoning ordinance which was adopted in 1968, while it'established other uses in the industrial districts did not include chemical fertilizer manufacture as.a permitted use. The city attorney's rc,.- 'of these various -ordinance provisions reveals that chemical "_ _ilizer manufacturer has never been a permitted use within the City of Brooklyn Center. Assuming that the chemical fertilizer plant was established in 1946, in order to do so legally, Hoy-,e Inc. was required to obtain a permit from the city council which was based on a finding that the production of chemical fertilizer was no more obnoxious or detrimental to the welfare of the community than enterprises or businesses already enumerated in the zoning ordinance. As previously stated, these uses included coal yards, van and storage yards, warehouses, feed mills, gasoline and oil storage, blacksmiths' shops, and the like. Although there is no formal recognition by the city council of a fertilizer processing plant, the city has apparently acquiesced for many years in the continued operation of the plant. The planning commission should direct further inquiry to the applicant regarding the establishment of the chemical fertilizer business in 1946 and specifically request any records the company may have would indicate that when the property was rezoned for heavy industry in 1946 the city council was made aware of the fact that the manufacture of chemical fertilizer was contemplated. Such information, coupled with the city's long acquiescence in the operation of the plant, would; in the opinion of the city attorney, be the legal equivalent of a 47 4 +-,+ I +- �-, v, t t h n T Y /� 1� /, fertilizer wasrno more obnoxious than the other uses which were permitted under the 1940 and the 1950 zoning ordinances. Assuming that the chemical fertilizer plant was established as a lawful use in the 1940's, under the existing zoning regulations, it became a non -conforming use when the 1957 ordinance was passed. At that time, as previously stated, various light industrial uses replaced the previous ordinance provisions. The section of the ordinance permitting the city council to make a finding that a particular use was no more obnoxious than other permitted uses was eliminated. The operation- of Howe fertilizer became a non -conforming use at that time. - 3 - The status of the north building as a non -conforming use. Assuming that the planning commission finds that the production of chemical fertilizer was lawfully established in the 1940's and early 50's, since it appears that Lots 1, 2; 3 and 4, Block 4, Brooklyn Manor, are being used as a single industrial complex_ for the production of chemical fertilizer, the North Building falls into the category of an accessory use.The 1940, the 1950, and the 1957 ordinances all defined accessory building and accessory use in the typical fashion, with language to this effect; a subordinate building or use which is incidental and customarily associated with the principle use or building. This point is raised to squelch the argument that the North Building is merely a warehouse and storage facility and therefore a permitted use in the zone. Building permits issued during the 1950's for several additions to the Howe Fertilizer Plant site carried the description of "warehouse and storage". Although these buildings may be used for that purpose, they are accessory buildings to the production of chemical fertilizer since that is the principle use of on the site. The applicant cannot have it both ways. The North Building must be viewed in one of the two following ways: (1) If the building in its reconstruction is to treated as a storage and warehouse building, then it'must be replatted and separated by description from the remainder of the site. The site for the warehouse building must meet all setback provisions for an individual lot and house uses unrelated to the production of chemical fertilizers. '2 j T:-: �.. :?: ,- t. T1B-4-1 dln .:,",C : tV tr`-at C ._.. n.r i... +-n�r..-n I r�nrt of the production of fertilizer and thereby retain its no-n-conforming use status as an integral part of a complex of buildings used for the production of commercial fertilizer. If the production of chemical fertilizer on the site is a valid non -conforming use, and if the North Building is an accessory building to that use, the building, as it existed in 1957 when the zoning ordinance was passed, will govern some of the issues which the planning commission must address. Non -conforming uses which have not been 60% destroyed by casualty, may be rebuilt, but may not be expanded beyond their size and use as of the date on which they became non -conforming. Building permit number 3443 was issued on September 22, 1955 for the construction of the first portion of.the North Building. Although the building permit authorized a warehouse building to be constructed of steel, one story in height and 60 feet by 100 feet.in area, area photographs taken thereafter indicate that the -size of the building as constructed was 62 feet by 138 feet. The building hz'.7e constructed also encroached into land which was zoned for residential purposes. The building inspector, Nr. Edwin C. Peterson, notified Howe Inc. and on October 17,.1955 Roy M. Howe wrote a letter to the city stating that it was an oversight on the part of Howe Inc.that the building was so placed and in the same letter requested rezoning of the northerly150 feet of the Howe site to industrial purposes. The city council granted a portion of this request,. by rezoning the south 50 feet of the north 150 feet of the site which was apparently just enough to legalize -the encroachment. Final action was taken on this - 4 - rezoning on December 28, 1955. At that same meeting a "special permit" was issued for the construction of a building approximately 60 feet by 165 feet for warehouse purposes in connection with existing operation, provided that suitable fencing be installed on the 1.00 foot line between the residential and industrial property and this "buffer strip fence" was to be completed within one,year. Although the dimensions of the building do not precisely square with the aerial photograph, this provision appears to meet the ordinance requirement for authorizing industrial uses. 11owever, there is no indication in the record describing what the "existing operation" really means. As a practical matter, at the end of 1955, the North Building consisted of a structure 62 by 138 feet to be used for warehouse purposes in the existing operation on the site. On September 1, 1956 Howe Inc. petitioned the village council for a rezoning of Lot 5, Block 4, Brooklyn Manor, a lot which lies to the west of the existing Howe site. The purpose of this rezoning was apparently to expand the North Building in a westerly direction. This rezoning proposal was either denied or withdrawn (the records are not clear) and a substitute petition was submitted requesting a Special Permit for an addition to the easterly end of the North Building to be used for warehouse purposes. This addition consisted of a 62 by 80 foot frame and steel warehouse. The planning commission approved and the city council adopted the planning commission recommendation on September 13, 1956 issuing an "industrial special permit" for an addition to the present warehouse to be 62 by 80 foot in size and to be used for warehouse purposes. This addition brought rile Nrtri.it ritdicli.ti,2 i.o a size o% bZ big 216 iecC wIL 11 W&a ivil9, _L itssize on the date of the fire. There is an additional building permit number 9032 and dated October 30, 1961 which was issued to Howe Inc. The description in the permit is for a building "attached to the north side (open)". .The size was 12 feet by 218 feet, one story in height, of frame construction with a metal roof. A proposed use was for warehouse purposes. This permit was issued after the 1957 zoning ordinance declared the production of chemical fertilizer be a non -conforming use. There is no corresponding action by the city council authorizing the permit. There is an indication of that such an addition could have been made either to the South Building or to to North Building but there is insufficient evidence to justify such a finding. Inquiries should be directed to the applicant.regarding any information or records the company may have with respect to that permit. In summary, in 1957 when the production of chemical fertilizer became a non -conforming use, the North Building consisted of a one-story steel building, 62 feet by 218 feet in size (13,516 square feet) to be used for warehouse purposes in connection with the operations existing on the site in 1955, presumably the production of commercial fertilizer. It is the recommendation of the city attorney that the North Building be treated as a part of the total complex. The planning commission is free to accept or reject that recommendation based on all of the facts which it reviews as a result of this application. Assuming that the North Building is part of the total complex, Howe Inc. should have a right to rebuild the same hind of - 5 - building for the same use subject to the following: (1) Since the use is the warehousing of material used in connection with fertilizer production, the size of the building should be looked at on the basis of its volume in order to pro- vide more flexibility to the applicant. The building inspector will be prepared Thursday evening to discuss the size of a building of various configuration which does not exceed the volume for storage purposes of a one-story building 62 by 218 feet in size. (2) Because the purpose of non -conforming use provisions is to eventually eliminate the use through obsolescence, it would defeat the purpose of non -conforming use provision to permit the construction of a building with a useful life longer than the building as originally constructed. The building inspector indicates that the concrete building proposed would have a useful life of at least twice as long as the original building. The original building appears to have been of wood frame construction covered with sheet metal. The foundation consisted of poles approximately 12 inches in diameter set in the ground without concrete. The floor was gravel in some places, asphalt and concrete in other places. The applicant appears to be entitled to a building of that type or its equal in useful life. (3) The use of the building should be for the warehousing and storage of materials used in connection with the production n-F nhAmi -,al -FArt-i 1 i for Thi c rinac nnt- i,n(-1 i1r1P fi 1 e str rake t'riick LlldL11LC1IiA-II Ut:� d1Lct btJ[ld11LL VL.11C1 LL0Gb W111111 i11Ciy Z,& uLGL1. introduced into the building after its construction in .1956. If the City Council adopts an ordinance regulating the storage of toxic materials as proposed in the Hickok Study, the applicant should be made aware that all storage in all building, including the north Building must conform to the requirements of that ordinance.. (4) The 1957 zoning ordinance distinquishes between non- conforming structures and non -conforming uses. Although that distinction was not carried forward in the 1968 code revisions, the planning commission and city council have continued to permit alterations ina non -conforming structure which contain permitted uses. The vehicle to accomplish this result is the granting of a variance. Assuming that Howe Inc. is a valid non -conforming use, it can be treated a a permitted use for the purpose of applying the non -conforming structure requirements. This means that to the extent the standards for variance can be met, such issues as setback, screening, landscaping, parking and other site review matters should be considered for a variance. Based upon the staff review of exist- ing information, the standards for variance have-not been met as to screening, parking and setback. Staff review of landscaping requirements must be deferred until the planning commission receives and deals with a site plan showing screening, parking and setback which meet the code . • - 6 - It is clear that the expansion of the fertilizer business at the site over the past 22-30 years has resulted in severe crowding on the site. Howe Inc. has clearly grown beyond the dimensions of its present site. If the plant were to be constructed today the applicant would no doubt choose a larger area and the zoning regulations would clearly dictate a much larger site for the many operations which are contained within the fertilizer plant and its accessory buildings. Therefore, in dealing with screening, parking, setback, landscaping and the size of the building, the applicant may wish to re-evaluate the plans submitted. (5) The staff recommends that tre plans as submitted not be approved. At this time, the staff is not persuaded that the production of chemical fertilizer as it is conducted on the site of Howe Inc., can be modified to the extent that it should be treated as a permitted use under the comprehensive zoning plan and under the zoning ordinance. The intensity of use, and the variety of operations are simple incompatible with a site of that size adjacent to a residential area. Even without the complication provided by the residential neighborhood, Howe Fertilizer has clearly outgrown its present site. Respe fully submitted, Gerlt, nG. Splinter Cityager City of Brooklyn Center - 7 -