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2016-07-12 PC Agenda Packet PLANNING COMMISSION MEETING Tuesday, July 12, 2016 7:00 PM 1. CALL TO ORDER - ROLL CALL – ADOPT AGENDA 2. MINUTES June 14, 2016 Planning Commission Meeting (pages 1-7) 3. PUBLIC HEARINGS a. None. 4. OTHER BUSINESS a. Discussion of Temporary Family Health Care Facilities (pages 8-14) b. Planning Commission Training 5. ADJOURNMENT 1 ALBERTVILLE PLANNING COMMISSION TUESDAY, JUNE 14, 2016 DRAFT MINUTES ALBERTVILLE CITY HALL 7:00 PM 1. CALL TO ORDER – ROLL CALL – ADOPT AGENDA Chair Klecker called the meeting to order at 7:00 p.m. Becker conducted roll call. Present: Chair Klecker and Commissioners Dominick, Edgren, Barthel, Wegner, and Council Liaison Hudson. Absent: Commissioner Brempell. Others Present: City Planner Alan Brixius, Building Permit Technician Maeghan Becker, Barbara Schneider, Dean Mabson, Scott Dahlke, Ralph Munsterteiger, Mike Mcshane, Donald Savitski and Anne Savitski. Motioned by Dominick, seconded by Barthel, to approve the agenda as presented. Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTION DELARED CARRIED. 2. MINUTES Motioned by Barthel, seconded by Dominick, to approve the February 9, 2016 Planning Commission meeting minutes. Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTION DECLARED CARRIED. 3. PUBLIC HEARINGS: A. Request to Rezone Outlot A, Heuring Meadows from B-2, Limited Business to B-2A, Special Business District. Brixius explains that the Leuer-Munsterteiger Properties is requesting to change the zoning on Outlot A from B-2, Limited Business to B-2A, Special Business District to expand the range of commercial uses that may be approved for the property. Planning Commission Meeting Minutes 2 Regular Meeting of June 14, 2016 1. The proposed action has been considered in relation to the specific policies and provisions of and has been found to be consistent with the official City Comprehensive Plan. The Albertville Vision Study guides this site for future commercial land uses. This change in zoning will expand the scope of commercial businesses that may be approved for this site. 2. The proposed use is or will be compatible with present and future land uses of the area. The site is bordered by the following land uses: Cottages of Albertville/single family, 53rd Street NE/commercial, CSAH 19/commercial, and a single family neighborhood to the west. In 1989, Outlot A was created with the Heuring Meadows Subdivision with the B-2 zoning. At that time, the City Council created a 500 foot commercial strip along both sides of CSAH 19 between I-94 and 50th Street NE. Dominick mentioned that this was the property that West Bridge Church was considering using. 3. The proposed use conforms with all performance standards contained herein. The applicant has presented a concept plan for a combination of commercial and multiple family residential to the City Council. To date, nothing has progressed. Any future development plans must comply with City zoning performance standards. 4. The proposed use will not tend to or actually depreciate the area in which it is proposed. The change in zoning will not change the land use, therefore no additional impact is anticipated with the change of use. 5. The proposed use can be accommodated with existing public services and will not overburden the City’s service capacity. Future development will be within the capacity of available utilities, due to the area being planned for commercial development already. 6. Traffic generation by the proposed use is within the capabilities of streets serving the property. As development begins to arise, there will be a required study to determine the type and extent of transportation improvements that would be required to address both site access and egress and dispersal of traffic. The applicant has stated that the current zoning of B-2, Limited Business District is too restrictive for commercial development. The B-2A District would help expand the scope of uses and provides additional performance standards to protect the residential neighborhoods. Based on the above mentioned, we recommend approval of this request. Dominick asked about any potential suitors for the property. Ralph Munsterteiger responded that they have had multiple suitors for the property, but they have not worked out to date. Dominick asked how many suitors they have lost out on due to the current zoning on the property. Ralph Munsterteiger responded with about a half dozen within the last 15 years, due to the current Planning Commission Meeting Minutes 3 Regular Meeting of June 14, 2016 zoning. Munsterteiger gave an example that with the current zoning restrictions, any buyer would not even be able to put a drive-thru restaurant on the property. Klecker shows high concern for this property and what type of uses might come along with the change in rezoning to B-2A. Klecker is concerned for the residential houses on Kalland Avenue NE that come up to the property in question for rezoning. Wegner also expressed concern for any of those residents that might be opposed to the rezoning request. Klecker and the Leuer-Munsterteiger discussed the issues of why the property may not be selling. Motioned by Dominick, seconded by Edgren to open the Public Hearing. Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTIONED DECLARED CARRIED. No one wished to speak for the open hearing on this issue. Motioned by Barthel, seconded by Dominick to close the Public Hearing. Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTIONED DECLARED CARRIED. Motioned by Dominick, seconded by Edgren to approve the Request to Rezone Outlot A, Heuring Meadows from B-2, Limited Business to B-2A, Special Business District. Ayes: Dominick, Edgren, and Wegner. Nays: Klecker, Barthel. Absent: Brempell. MOTIONED DECLARED CARRIED. B. Public Hearing to Consider a Request by Taco Bell for Site and Building Plan and Conditional Use Permits for Joint Parking, Drive-Through Service Lane, and Outdoor Dining. A developmental application has been submitted by Border Foods to build a 2,690 square foot Taco Bell restaurant at 6040 Labeaux Avenue NE. The zoning is accurate for the restaurant request. The applicant will also need the following three conditional use permits to operate at the proposed site: 1. Conditional Use Permit for Drive-Through Service Lane 2. Conditional Use Permit for Outdoor Dining 3. Conditional Use Permit for Shared Parking The applicant will also need to obtain a demolition permit for the removal of the car wash and materials, which is currently on the proposed site. The zoning is B-3, Commercial Highway District, which allows restaurants as permitted use. Through the conditional use permits, the outdoor dining, drive-through, and shared parking will be allowed. The lot area and setbacks meet the B-3 District standards. Planning Commission Meeting Minutes 4 Regular Meeting of June 14, 2016 The lot coverage meets the City Code standards at 72.7% with the proposed project. The B-3 Zoning District allows up to 80% of the lot area to be impervious surface. The proposed site access will not change from existing conditions. There is access from CSAH 37 and there is also a right-in/right-out access point on CSAH 19. No changes in access points are being required. Parking will need to be completed through a conditional use permit as the site shares access and parking with DJ’s Hardware. Both of these sites are owned by Don Savitski. Border Foods will be holding a land lease with Mr. Savitski remaining the owner of the site. Provided that easements and leases are in place, the two lots may share access and available parking through the conditional use permit. The applicant states that the total parking on both sites is 114 stalls, and the site plan only shows 100 stalls. Staff’s estimate of required parking is 110 stalls for both of the sites. The applicant must confirm that the two sites have the required parking count. The site plan must be revised to show compliance with the required five foot parking setbacks. The drive-through service lane, the two easternmost and western parking stalls fail to meet the setbacks. City Code also requires that parking stalls must be 9 feet wide and 20 feet deep. After review of the site plan, the parking stalls along the building and the west lot line only have an 18 foot depth. This must be corrected to the 20 foot depth to meet code. The City will require DJ’s Hardware parking lots to be striped as a condition of the joint parking conditional use permit. Currently, The Taco Bell site provides two disability stalls and DJ’s provides one stall. To meet ADA requirements, this site needs to have one disability parking stall for every 25 parking stalls. This must be demonstrated in the site plan. Due to the City Zoning Ordinance, any parking lots of five plus cars need to be screened from the public street. Therefore, a landscape hedge will be required along the west end of the parking lot. The site plan must also identify the snow storage areas exclusive of the required parking. The snow removal cannot present a hazard to public streets or reduce the amount of required parking. Deliveries to the restaurant will be along the north side of the building. The applicant must describe the types of vehicles that deliver products to the restaurant and what that schedule will be. The current site design does not accommodate the turning of a semi-truck through the site. Brixius made the following comments for the drive-through service lane. 1. To move the menu board to the south side of the proposed patio would allow the stacking of four cars waiting to order. 2. The location of the menu board and intercom should be direct toward either CSAH 19 or CSAH 37 to prevent any noise issues. 3. The drive-through service lane is required to be screened and additional landscaping will be required along the south edge of the drive-through lane. Planning Commission Meeting Minutes 5 Regular Meeting of June 14, 2016 After staff discussion, there are going to be improvements made as a City/County project. These improvements are an additional crosswalk and landings to accommodate pedestrian movement to the four quadrants of the CSAH 19/CSAH 37 intersection. The outdoor dining site plan shows a 237 square foot area on the west side of the building. There will be a pergola providing partial covering. For the outdoor lighting, the photometric plan did not include wall mounted lights on the building. There was wall packs shown over each building entrance and the drive-through service window. The applicant must provide more information on these fixtures. Brixius discussed the landscaping issues and that the applicant must indicate whether this area will be seeded or sodded. The plan also shows irrigation into a street right-of-way which would need to be approved by the County and City Engineer. The applicant will also need additional screening on the west edge of the parking lot and along the south edge of the drive-through lane. Staff also recommends that the west parking lot pole be located in a raised curb island. Brixius went on to show the plans of the proposed structure and to demonstrate the above mentioned items to visualize. Staff recommends approval of the site building plan upon the approval of conditional use permits for the joint parking, the drive-through service lane and for the outdoor dining and the comprehensive sign plan. Commissioners showed concern with the traffic that occurs in the morning on CSAH 37 heading towards I-94. Hudson wanted to note that there may be a future plan to put an entrance ramp to I-94 off CSAH 19 which would help with the traffic. Motioned by Klecker, seconded by Dominick to open the Public Hearing. Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTIONED DECLARED CARRIED. Barbara Schneider, Border Foods, approached the podium to speak. She first addressed the cross access easement; she said that they would not enter into this without a cross access agreement with Donald and Anne Savitski. They are here today together to request approval of this project. Schneider informed that Taco Bell has standards on the drive-through and how they work and where the menu board is placed. When they need to snow plow they push to the perimeter, but when needed they haul the snow off the premises. Schneider informed that they are agreeable to an encroachment easement. The semi-trucks are eighteen wheel trucks and they receive two deliveries a week and schedule those at off peak hours via a key drop system. Schneider noted that they are looking to break ground in September and are looking to do a 90 day build. Donald Savitski, owner of DJ’s Hardware, approached the podium. Mr. Savitski wanted to state that during all of the years he has drove into DJ’s, he has not had any issues with the traffic to turn into the site. Barthel expressed concern with the semi-trucks unloading and that they may need to address it a different way. Mr. Savitski said that he does not believe there have been any issues. Planning Commission Meeting Minutes 6 Regular Meeting of June 14, 2016 Scott Dahlke, Civil Engineer, approached the podium. He wanted to address the raised curb island vs. a striped island. He wanted to request that this still be a striped island due to snow plowing and that may become difficult. Donald Savitski, owner of DJ’s Hardware, approached the podium for a second time. He wanted to offer that he is willing to add one handicap space if needed. He wanted to let the commissioners know that he would like to stay with just the one stall because it never gets used. Brixius informed Mr. Savitski that ADA requires more handicap stalls based on the number of stalls there are. Motioned by Barthel, seconded by Wegner to Close the Public Hearing. Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTIONED DECLARED CARRIED. Staff recommends approval of the site building plan upon the approval of conditional use permits for the joint parking, the drive-through service lane and for the outdoor dining and the comprehensive sign plan based on the following conditions: 1. Joint Parking Conditional Use Permit 2. Loading Conditions 3. Drive-Through Conditional Use Permit 4. Pedestrian Connection Conditions 5. Outdoor Dining Conditional Use Permit 6. Lighting Conditions 7. Landscape Plans 8. Sign Plans 9. The City Engineer Comments Motioned by Dominick, seconded by Edgren to approve the request by Taco Bell for Site and Building Plan and Conditional Use Permits for Joint Parking, Drive-Through Service Lane, and Outdoor Dining with the conditions outlined in the staff report . Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTIONED DECLARED CARRIED. C. Public Hearing to Consider a Request by the City of Albertville for an Amendment to the Albertville Zoning Ordinance Regarding Fees Brixius stated that the City of Albertville processes all applications without consideration of delinquencies on the property. Other cities have added a stipulation for the property owner to be current on taxes before they can apply for an application. Dominick had a concern that if someone was in a hardship and was delinquent, that this may impair them from selling their property because they could not come in. He does not want to make bigger hardship on someone. Planning Commission Meeting Minutes 7 Regular Meeting of June 14, 2016 The draft ordinance includes language that prohibits an applicant, property owner, or tenant from consideration of a new application when they have an outstanding debt to the City. This ordinance update provides an opportunity by the City to ensure that properties requesting services and approvals are not delinquent in their taxes or any outstanding fees. Motioned by Barthel, seconded by Dominick to open the Public Hearing. Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTIONED DECLARED CARRIED. No one wished to speak. Motioned by Wegner, seconded by Dominick to close the Public Hearing. Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTIONED DECLARED CARRIED. Motioned by Klecker, seconded by Wegner to approve the Request by the City of Albertville for an Amendment to the Albertville Zoning Ordinance Regarding Fees. Ayes: Klecker, Edgren, Barthel, and Wegner. Nays: Dominick. Absent: Brempell. MOTIONED DECLARED CARRIED. 4. OTHER BUSINESS A. None 5. ADJOURNMENT Motioned by Barthel, seconded by Dominick, to adjourn the meeting at 8:22 p.m. Ayes: Klecker, Dominick, Edgren, Barthel, and Wegner. Nays: None. Absent: Brempell. MOTION DECLARED CARRIED. Respectfully submitted, ___________________________________ Maeghan M. Becker, Building Permit Technician 8 MEMORANDUM TO: Adam Nafstad FROM: Alan Brixius / Ryan Grittman RE: Albertville - Temporary Family Health Care Facilities DATE: July 7, 2016 FILE NO: 163.05 – 16.15 BACKGROUND This Spring, the Legislature passed, and the Governor signed, a law purporting to require municipalities to allow “temporary family health care dwellings” under MN Statutes Section 462.3593. The new law defines these dwellings, requires their accommodation, but includes an “opt-out” provision that permits the municipality to exempt themselves from the provisions. ANALYSIS Intent of the New Law. The statute itself was developed and put forward by a New Brighton firm called Next Door Housing that builds these units. The statute includes an exemption for any municipality that already has an ordinance that allows temporary health care dwellings as a permitted use. Cities that have a prohibition on RV occupancy or other similar code are not immune to the law. Components of the Statute. The new law includes the following aspects: • Definitions of caregiver, person needing care, and “relative” providing care; • Specifies that the subject of the Statute is a “mobile” residential dwelling; • Specifies that the unit must be built off-site; • Specifies that the unit is no more than 300 square feet, and has no permanent foundation; • That the unit is “universally” designed and meets accessibility standards; • That the unit access plumbing and electrical through the principal home, or “other comparable means”. 9 • That the unit uses exterior materials compatible to “standard residential construction” and has an energy rating of R-15; • Is sized to be movable with a one-ton pickup truck; • Provides that such units will be permitted uses; • Provides for an application and permitting process, including notice to “adjacent” property owners; • Provides that the unit must meet setbacks and floor area ratio requirements; • Provides that the unit is occupied by only one person; • Provides for one six-month permit term, and one additional six-month term; • Provides for municipal inspection and a revocation process; • Provides for a maximum $100 fee for the initial permit, and $50 fee for the additional term extension; • Incorporates MN Statutes Section 15.99 for permit review. • Provides for the opt-out ordinance as noted below. Opt-out Provision. The new statute, as a part of MN Statutes 462 is incorporated into the municipal planning and zoning regulations, and will become effective on September 1, 2016. The municipality will have to opt-out of the regulation prior to that date to avoid its effect. Because this is a zoning regulation, any opt-out will need to be processed as an amendment to the Zoning Ordinance, requiring the typical hearing and ordinance adoption. The only opt-out is an explicit opt-out. Accessory Dwelling Units Generally. The issue of accessory dwelling units for the purpose of providing living space for family members needing care has been widely discussed. The context for most of these discussions has been for attached units that constitute some form of second dwelling on single family parcels. There are various arguments, pro and con, for these units. Issues Under the New Law. Apart from the issues raised by accessory dwellings, the temporary family health care dwelling addresses a separate aspect of this issue – mobile, detached “trailer” units that are hauled to the subject residential property, installed with connections to the electrical and plumbing services from the main house, and then detached and removed, theoretically, when their use is no longer needed. Interestingly, the statute provides for a single six-month period of installation, and the option for one additional six-month period. The statute also provides for an extensive process of permitting and locational regulations that would supersede a community’s normal review process. It is not clear how the statute might apply to somebody who wishes to apply for a third six-month period – it would appear that the statute prohibits that extension. The statute also allows for one unit per lot without distinguishing between single family or multiple family properties (twinhome, townhome). The statute allows only one person to reside in the unit. 10 In the City of Albertville, some of the residential neighborhoods consisting of small to mid-sized lots raise question with regard to rear yard access and unit placement. Placement of a temporary health care unit is required to meet principal building setbacks. This will be problematic on the smaller lots in the City. SUMMARY AND ALTERNATIVES 1. The municipality may choose to do nothing, and allow the statute to go into effect. In this case, all of the details of the law, including size, location, construction, delivery, timing, and process would be regulated by the statute. 2. The municipality may decide that it wishes to allow temporary family health care dwellings, but prefer ordinance details more tuned to its specific requirements and zoning objectives. Examples of alternatives preferred by the municipality might be providing for site-built facilities, differences in size or materials, differences in location or screening requirements, the use of interim use permits or conditional use permits, or alternative notice requirements, just to name a few. In such a case, the municipality should take action to adopt an ordinance opting- out of the statute, and proceed to adopt its own regulations. It will be important that the municipality opt-out of the State law, or the statute may have the effect of pre-empting the preferred alternative. 3. The municipality may decide that only attached accessory units are suitable in their community. Again, the municipality will need to take specific action to adopt an opt-out ordinance to avoid the effect of MN Statutes 462.3953 prior to September 1, 2016. 4. The municipality may decide that it does not favor accessory units. Instead, families who are considering providing health care to their family members can do so within the confines of a single family home. It may be necessary to add some definition to what constitutes a separate residential use (especially cooking and sanitation/plumbing facilities) to ensure that single family homes are not accidentally modified to create additional dwelling units on the property. RECOMMENDATION While the City has a number of options for addressing this issue, staff would strongly recommend that the City adopt the attached ordinance to opt-out of the State regulations to avoid land use and performance standards issues that will occur with the application of State standards on lots within Albertville. If the City believes that this housing option is needed within the City, the City will adopt its own regulations specific to the City and appropriate for its lot sizes and neighborhoods. 11 c: Kim Olson Meaghan Becker Mike Couri Paul Heins Attachments: Exhibit A Opt-out Ordinance Exhibit B Photos 12 EXHIBIT A CITY OF ALBERTVILLE COUNTY OF WRIGHT STATE OF MINNESOTA ORDINANCE NO. 2016 – ___ AN ORDINANCE AMENDING SECTION 100 OF THE ALBERTVILLE ZONING CODE RELATING TO TEMPORARY HEALTH CARE UNITS WHEREAS, on May 12, 2016, Governor Dayton signed into law the creation and regulation of temporary family health care dwellings, codified at Minn. Stat. § 462.3593, which permit and regulate temporary family health care dwellings. WHEREAS, subdivision 9 of Minn. Stat. §462.3593 allows cities to “opt out” of those regulations. THE CITY COUNCIL OF THE CITY OF ALBERTVILLE, MINNESOTA HEREBY ORDAINS: Section 1. Section 100 of the Albertville City Code is hereby added as follows: Section 100.11: OPT-OUT OF MINNESOTA STATUTES, SECTION 462.3593: 1000.24. Pursuant to authority granted by Minnesota Statutes, Section 462.3593, subdivision 9, the City of Albertville opts-out of the requirements of Minn. Stat. §462.3593, which defines and regulates Temporary Family Health Care Dwellings. Section 2. This ordinance shall be effective upon its passage and publication. Approved by the Albertville City Council this _____ day of ______ 2016. Jillian Hendrickson, Mayor ATTEST: Kimberly A. Olson, City Clerk EXHIBIT B13 EXHIBIT B14 BASICS OF PLANNING Michael C. Couri Couri & Ruppe, P.L.L.P. Attorney at Law AUTHORITY FOR LAND USE REGULATION  Case Law. • Authorized by “police power” per U.S. Supreme Court in 1926. Police powers are powers that protect the public health, safety or welfare. • Regulation amounts to a regulatory taking of the property when owner is denied all economically viable use of the property.  Statutory basis for zoning. • Minn. Stat. Ch. 394 (counties). • Minn. Stat. §§ 462.351 – 462.365 (cities and towns). • The police power is inherent in the State, not local government. • The only power local governments have is that delegated to them by the State. AUTHORITY FOR LAND USE REGULATION  Statutory limits on zoning authority. • Specific standards set out in statutes for: o Variances. o Conditional Use Permits o Interim Use Permits o Nonconforming Uses • A state-licensed group home of six or fewer is automatically a permitted single-family residential use. • A state-licensed group home of 7-16 is a permitted multifamily residential use that can be subject to a CUP. CONSTITUTIONAL LIMITS  Regulations must be uniformly applied. This is what is referred to as equal protection under the law. This means: • Similarly situated landowners must be treated the same. • Similarly situated refers to not only circumstances, but time. • When an equal protection challenge is asserted, the municipality must offer a legitimate reason for distinction.  Governmental action must be “reasonable” and to accomplish a legitimate public purpose. • This limitation on governmental action is often referred to as “substantive due process.” • Substantive due process requires an egregious set of facts to support a claim. CONSTITUTIONAL LIMITS  The governmental process must be “fair.” • This is known as procedural due process. • Fairness does not include a right to cross-examine witnesses opposed to a particular permit application. • Fairness = notice of the process and an opportunity to be heard. CONSTITUTIONAL LIMITS  Takings (Eminent Domain) • Takings claims are based upon the constitutional prohibition against a government taking property without paying just compensation to the owner. • Claims are that regulations amount to a taking of property. •Basically, a regulation cannot deny all economically viable use of land. • These claims are often decided based on the circumstances of each case. CONSTITUTIONAL LIMITS Exactions • Exactions, generally, are when a government conditions its approval of a land use application on the owner performing a certain action or granting the government some benefit or property right. • There must be an “essential nexus” between the condition imposed and the burden the proposed land use would cause. • If the government requires the dedication of land or an easement, the government must prove a “rough proportionality” between land required and impact of development. • State law specifically allows for certain exactions or dedications for things such as public streets, parks, utilities, and storm water drainage. DO NOT ADVOCATE •When processing a zoning application, you cannot advocate a position until all information has been submitted. •Do not declare a position on the issue before the item is properly before your board. •Do not sign petitions or campaign in favor or against an issue that is the subject of a zoning application. •Courts will invalidate board decision if a board member has declared a position before record is complete. MORATORIA AND INTERIM ZONING A temporary development or rezoning freeze while a municipality considers the adoption or amendment of official controls and/or comprehensive plans.  To adopt a moratorium a municipality must make a finding that it: • is conducting studies to consider the adoption or amendment of a comprehensive plan or a zoning ordinance; or • has authorized a study to be conducted regarding the adoption or amendment of a comprehensive plan or zoning control ordinance; or • has held or has scheduled a hearing for the purpose of adopting or amending a comprehensive guide plan or zoning ordinance; or • has annexed new territory for which there are no existing plans or controls. MORATORIA AND INTERIM ZONING  Generally, no special public notice is required before an interim ordinance is considered or adopted by a town or city.  The initial interim ordinance lasts for up to one year from the date it became effective. • Can be extended for the following reasons, but in no event longer than an additional 18 months: o for up to an additional 120 days from the receipt of a federal, state, or metropolitan approval; o for up to an additional 120 days from the completion of any other process required by state or federal law; o for up to 1 year if the city or town hasn’t adopted a comprehensive plan at the time the moratorium is enacted. MORATORIA AND INTERIM ZONING  No interim ordinance can affect a subdivision that has been given preliminary approval.  Moratorium adopted after application submitted may or may not be valid—depends on the facts. Generally, must be enacted to protect the planning process, not to halt a specific proposal. THE 60-DAY RULE  Minn. Stat. § 15.99 requires written requests relating to zoning, septic systems and/or the expansion of MUSA to be approved or denied within 60 days from the date of application. • A failure to deny a request within the time frame is an automatic approval of the request. But only to the extent that the town, city or county has authority to grant such request. • The municipality can show that it met the time requirement if it can document that its decision was sent within 60 days after receipt of the written application. THE 60-DAY RULE  The 60-day period can be extended for 60 more days if the municipality provides written notice to the applicant, prior to the expiration of the deadline, stating the reasons for the extension, and stating it’s length. • Oral notice of an extension is not sufficient. • The applicant may request an extension of the time limit by written notice that is “explicit and definite.” THE 60-DAY RULE  An incomplete application can stop the running of the 60-day period if the municipality sends notice within 15 business days of receipt of the request telling the applicant what is missing. • 60-day period remains tolled until missing information is provided and application is complete. o Application must be on agency’s form, if one exists. o Completeness under the 60-day rule can only be determined by reference to a pre-existing rule, ordinance or policy. o When an applicant makes an amendment to its request that is “material or significant,” the 60-day period begins anew and runs from the amendment. THE 60-DAY RULE  The time period is tolled if the requested action requires the prior approval of a state or federal agency. 60 days begins to run when the required approval or process has been completed. • Example: EAW or EIS. THE 60-DAY RULE  Must send written notice of denial with reasons for denial within 60 days otherwise request is automatically approved. • A rejection of a motion to approve constitutes a denial if those voting against approval “state on the record the reasons why they oppose the request.”  The 60 day rule does not apply to subdivision requests submitted to a town or city. There is a separate 120 day limit for city approval of subdivisions. Chapter 505 does not have a time limit for Counties to approve subdivisions.  The 60-day rule does not apply to a building permit request. THE RECORD  The Public Hearing • All meetings considering request must be open under the Open Meeting Law o The Open Meeting Law applies to City Council, Township Board, County Board, Planning Commission and Board of Adjustment meetings. o Presence of a quorum of a body discussing public business constitutes a “meeting” under the Open Meeting Law. o Informal site visits, where a quorum of the body is present, can result in Open Meeting Law violations. Give notice of such visits. THE RECORD  The Public Hearing • Pre -hearing Notice Requirements o Minn. Stat. § 394.26 (counties) and Minn. Stat. § 462.357, Subd. 3 (towns/cities) set forth the notice requirements for public hearings involving conditional use permits and variances. o Law requires notice of the general purpose of the hearing, but does not require that the details of the proposal be disclosed. THE RECORD • Procedural Due Process o Under state and federal law the right to due process means the right to notice and an opportunity to be heard. o The right to procedural due process does not normally include the right to cross examine witnesses. o The right to procedural due process can be analogized to a right to a fundamentally fair process. THE RECORD • Conduct of the Hearing o Remember that every application considered and denied could become a lawsuit. o At the hearing allow an applicant to inspect documents, present evidence, and fully present the case.  Establish rules of procedure as necessary to maintain control of the hearing, provide for appropriate public input under the circumstances, and keep the length of hearings reasonable. THE RECORD •Conduct of the Hearing o The applicant has the burden to present evidence to show he or she meets the requirements of the ordinance for the permit required. o Make a record of the basis for denial or approval. o Make all pertinent documents part of record of the proceedings. o Listen to public sentiment and opposition, but do not let it drive your decision. Respond appropriately to facts presented. o Any exhibits (documents, photographs) presented should be made a part of the record. o Do not stretch the terms of your ordinance to justify the granting or denial of a permit. THE RECORD  Findings/the Decision • Findings of fact are necessary as part of a permit denial or approval. • Findings of fact should constitute an exercise of application of the record evidence to the standards set forth in the ordinance. • Findings of fact should use the applicable decisional standards. •Findings of Fact need to be contemporaneous with the decision and must be based on the record. o Findings prepared within a reasonable amount of time from the zoning decision and based on reasons given when motion was approved are OK if a full record exists. THE RECORD • Making the Record o In almost all cases, an adequate record precludes the applicant from introducing new data during an appeal of the municipality’s decision. o During judicial review, a court will review the “record”, and determine whether the decision of the Board or Council was reasonable in light of record evidence. oTape record or video the public hearing so that a permanent verbatim record of the proceedings is available if the issue goes to court. THE RECORD •Importance of the Record o The standard of judicial review in all zoning matters is whether the zoning authority’s action was reasonable (is the decision reasonably supported by the evidence in the record?) o Great deference is given to the decisions of municipalities in zoning matters, such that the role of the judiciary is limited and sparingly invoked. o Court will not substitute its judgment for that of the municipality. o If the record is not good, the Court will likely allow the record to be supplemented with testimony at a trial. This will get ugly—depositions, discovery, GREAT EXPENSE! CONFLICTS OF INTEREST  Common Law Conflict of Interest • Direct Pecuniary Interest Prohibited. Under common law, a public official is disqualified from voting on a matter if the official has a “direct” financial interest in the outcome of the matter. o Purpose. The purpose of this rule is to ensure that a decision will not be an arbitrary reflection of an official’s own financial interests. CONFLICTS OF INTEREST Common Law Conflict of Interest. •Curing a Common Law Conflict. o A common law conflict of interest may be cured by abstaining from the vote. • Validity of Action. An action taken may be valid if the vote of the disqualified official did not affect the outcome of the decision.  Even when a conflict of interest does not exist, the “appearance” of a conflict has the potential to tarnish the decision-making process. Variances What is a Variance? •Official permission to use your property in a way otherwise prohibited by the zoning ordinance. •Most common with setback issues—not enough room to set the house back from the road or the lake. •Landowner must apply for an receive a variance from the City after a public hearing. 2011 Legislative Amendment •The variance may be granted if: –There are “practical difficulties” in complying with the zoning ordinance. –The variance will not alter the essential character of the locality. –Circumstances unique to the property not caused by the landowner or his predecessor. •Also requires that the variance be: –In harmony with the general purposes and intent of the zoning ordinance. –Consistent with Comprehensive Plan. What are “Practical Difficulties”? •Defined in statute as the “property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance.” •No guidance as to what is a “reasonable manner.” •Likely means at least one of the following: –Proposed use is similar to existing uses in the neighborhood. –Proposed use is permitted in other zoning districts elsewhere in the town. –Has few, if any, adverse impacts on other properties. •Courts will have to decide just what this means. Conditions •City can also put conditions on the variance, but they must be “directly related to” and “roughly proportionate” to the impact created by the variance. Net Impact •Variances may be harder to deny? –“Undue hardship” standard is gone. –Under previous standard, courts gave great deference to local government decision on variances—Cities were rarely reversed. –Courts may give less discretion to local governments under new standard given explicit “reasonable manner” standard. –Cities should be careful to develop detailed findings of fact to support a variance denial decision. What is a Conditional Use Permit (CUP)? •Permitted use, provided applicant meets the qualifications and conditions imposed by ordinance and Town Board. •Allows greater control over uses that may conflict with neighboring properties or generate traffic, noise, or other problems. •Once granted, it runs with the land and can stay forever as long as conditions are not violated—no set termination date. •Can be revoked after a hearing if conditions are violated. •Once issued, conditions cannot be modified except with the agreement of the property owner. Processing a CUP Application •The applicant must meet all general conditions contained in the CUP section of the Town’s zoning ordinance. •The applicant must meet all specific conditions contained in the zoning district which authorizes the CUP. Imposing Conditions •Township can impose conditions in the CUP permit. •Conditions must be related to the impacts created by the proposed CUP. •Cannot require that a legal non-conforming use be terminated—that is a taking requiring compensation. •Town does not need the applicant’s consent to impose a condition. Quasi-Judicial Hearing •Planning Commission/Town Board sits in a quasi- judicial capacity when processing a CUP. •Must determine whether applicant meets the criteria contained in the ordinance. •If criteria met, CUP must be issued, but can contain conditions imposed by Town. •Decision must be based on the facts in the record. What is an Interim Use Permit (IUP)? •Very similar to a CUP, except that it is issued for a limited period of time. •Can end on a date certain or an event. Examples: –IUP for a gravel pit may permit extraction of 50,000 cubic yards before it terminates. •Examples (Continued) –IUP for a second home on a property to care for elderly parents may terminate when parents no longer live in the second home. –IUP for farmers’ market expires on November 15, 2015. •May be renewed upon expiration with the same or new conditions as determined by the Town Board. Caution! •Minnesota Statutes require that the user agree to the conditions imposed on the applicant in granting the IUP. •The law is unclear as to what happens if the applicant disagrees with conditions imposed by the zoning authority. Why use an IUP? •Allows for more control over potentially conflicting uses. •Allows a use now that may not be appropriate at that location in the future. •Gives the Town a chance to impose additional conditions if conflicts arise. •Maximizes the productivity of property by allowing temporary uses that would otherwise not be allowed as a CUP. How do you implement an IUP? •Establish an IUP section in your zoning ordinance, similar to the existing CUP general conditions section. •Review each zoning district to see what permitted and conditional uses should be changed to IUPs. •Define the IUP uses within each zoning district and set out any specific conditions. How do you administer an IUP? •They are treated very similar to CUPs. •Applicant needs to apply for an IUP. •Must hold a public hearing after due notice. •Need findings of fact to approve or deny. •Decision can be appealed to District Court. •Final approval should be recorded at County Recorder’s office. •Copies of IUPs should be kept in a separate book so that they can be reviewed to make sure they do not last longer than allowed. THANK YOU! END OF LEGAL PRESENTATION OFFICIAL ROLES AND RESPONSIBILITIES Staff Planning Commission City Council STAFF ROLES Administer the planning process Initial contact with applicants and developers, outline zoning requirements and application process Prepare planning reports consistent with Comprehensive Plan, compliant with Zoning and Subdivision Regulations, and infrastructure needs Formal presentations of application to Planning Commission, City Council, and public Technical advice to the Planning Commission, City Council and public Enforcement PLANNING COMMISSION ROLE Participation in the preparation of the City’s Long Range Comprehensive Plan. Establish the vision, goals and priorities for future land use, growth, and infrastructure. Serve as the advisory body on development applications, variances, conditional uses, site plan reviews, and planned unit developments. Review and make recommendations on: •Comprehensive Plan Amendments •Zoning Map Amendments (Rezoning) •Zoning Text Amendments •Conditional Use Permits •Interim Use Permits •Variances •Planned Unit Developments •Subdivisions PLANNING COMMISSION ROLE (Continued) Planning Commission review and recommendation: •Comprehensive Plan consistency •Compliance with technical standards of Zoning and/or Subdivision Regulations •Outline findings for decisions PLANNING COMMISSION ROLE (Continued) The Planning Commission is an advisory body to the City Council and charged with the responsibility of researching, reviewing, and making recommendations on issues related to City planning, land use, and development in the City. Big Picture –Comprehensive Plan –Blueprint for the City guiding land use, transportation, utilities Goals and policies establish the City’s vision, defines neighborhoods, establishes priorities and quality of development. The Planning Commission role is to understand the big picture, serve as an advisory board to the City Council, ensure that each development request is consistent with the vision of the City and compliant with the City performance standards. The Planning Commission has been integral in the comprehensive planning process in establishing realistic expectations and goals for the City. The Planning Commission serves as an advisory body to the City Council and must work closely with City staff to present a consistent front for dealing with development requests. CITY COUNCIL ROLE Sole legal authority of the local government Authority to adopt a Comprehensive Plan Authority to adopt local codes and ordinances Controls the City budget The final forum for action on approval or denial of development applications EFFECTIVE MEETINGS / PUBLIC HEARINGS Agenda The agenda outlines the meeting topics for discussion. The Planning Commission may amend the agenda to add discussion topics. Once the agenda is approved, follow the agenda. Staff Presentation of Agenda Topic or Development Application The staff presentation is an evaluation of the development application against the City’s established development regulations (zoning, subdivision, etc.). Public Hearings Chair opens public hearings and requests public comments within the following format: i.Public comments must germane to the issue. ii.Speakers must address their comments and questions to the Chair and Commission, not to the applicant or other individuals at the meeting. iii.Speakers are directed to focus on new information relevant to the issue and avoid repetitive comments. iv.Audience must not interrupt the speaker with comments, applause, or other disruptions. v.Speakers must identify themselves by name and address, including representation of any interested party. vi.Speakers must speak from the microphone/podium to ensure that they are heard by Commission members, recording equipment, and those observing the meeting electronically. vii.Planning Commission members may ask questions of speakers while they are at the podium. viii.Answers to speakers’ questions are typically held until all speakers have been heard. This rule is often modified to avoid many speakers asking identical questions. ix.Speaker testimony is taken as called on by the Chair. With controversial issues that attract larger public attendance, the City may require speakers to sign in to speak or may limit the time of each speaker to ensure more people have the opportunity to express their opinions. At the end of the public testimony, the Chair may close the public hearing. If the application or item requires additional r esearch or review to be held over to another Planning Commission meeting, the public hearing may be continued to a future date to allow public comment on new information prior to Planning Commission action. Public Hearings (Continued) Discussion Once the hearing is closed, the Chair invites members to discuss the issue. The purpose of discussion is to ensure that adequate information has been gathered to formulate a motion. The Commission may ask staff, applicant, or members of the public for clarification of specific points. Decision –Approval, Denial or Continuation •Motion and second –recommendation to the City Council •Staff report offers findings and recommendation basis for decision. Findings are critical for any decision for protection against a challenge to the City’s decision. •If the application is tabled, the Planning Commission must be aware of any 60 day rule issues relating to the amount of time for a decision. •Motions on zoning recommendations are carried with a simple majority of the members present. i.If a motion to deny or approve fails to receive a simple majority (either gains only a minority or ends in a tie vote), the Chair should declare that the motion fails, and ask those who voted against the motion to state their reasons on the record. Under this scenario, the item goes to the City Council without a recommendation from Planning Commission, with the stated reasons servings as the “findings”. ii.In the alternative, a member may make a substitute motion and the Commission may consider it separately . UNDERSTANDING MANAGING CITIZEN OPPOSITION Community residents think of themselves as customers rather than citizens NIMBYS, organized neighborhoods armed to obstruct development Minnesota Environmental Review Programs (EIS, EAW, AUAR) used to obstruct, delay, and add expense to projects UNDERSTANDING MANAGING CITIZEN OPPOSITION (Continued) Managing citizen opposition: •Define meeting format, presentation and public comment at the beginning of a meeting •Direct all comments and questions to the Planning Commission not to the applicant •Avoid interruptions of speakers, applause, shouting, or other disruptions •Require all speakers to identify themselves •Hold questions until the end of the speaker •Allow staff to address technical questions •In taking action on any project, explain the basis for decision through findings. Use the staff report for the findings CONSIDERATIONS Defined City goals and policies –clearly communicated •Comprehensive Plan •Zoning Standards •Subdivision Requirements Developers are investing in Albertville and they have choices when it comes to when and where they make their investment decisions Some public comments have merit in the consideration of a project and may be included in the Planning Commission decision Communities have reputations within the development industries. Which cities are good to work with and which cities are difficult? •Customer service, good communication, timely service, predictable outcomes •Clear and understandable regulations. If we address these standards, we may anticipate a successful outcome •Will the review process accommodate the developer’s project schedule?