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HomeMy WebLinkAboutSeptember 1, 2009' TY F L ~ E~ G H T~ ~Tr,ti~sEUS: Marlaine Szurek, Cl~air 590 40th Avenue N.E., Columbia Heights, MN 55421-3878 (763) 706-3600 TDD (763} 706-3692 Donna Schmitt Rob I~iorendi»o Visit Our Website at: www:c•i.columbia-heights.mn.us Mike Peterson David Tl~ompson PLANNING AND ZONING COMMISSION MEETING ~:00 PM TUESDAY, SEPTEMSEK 1, 2009 CITY HALL COUNCIL CHAMBERS 590 - 40'~i~ AVENUE NE 1. Roll Call Minutes (~ugust 5, 2009 ilieeting) 2. Public Hearings: Case #2009-0901 Site Plan Approval for Shared Parkii~g 4301 Central Avenue Filfillah Restaurant Case #2009-0902 11-foot fron~ yard setbaek variance for a deck 1201 - 45`~' Avenu~e NE Tim Sullivan Case #2009-0903 Lonillg Amendment City Wide Smoke Shops Urdinance 3. New Business 4. Other Business 5. Adjourn The Responsibitity of the Planning Commission is to: • Fait~hfully serve the p~iblic interest. . Represe~~t existing and firture residents, a~~d base our decisio-~s ai~d recc~mmendatioi~s on the Comprehensive Plan ai~d Zo~~ing Ordinance. • Recognize the rights of citizens to participate in planning decisio~~s. • Protect the »atural environment and the l~eritage of tl~e built environment. • Exercise fair, honest, a~~d intlependent judgment. • Abstain from participation when they m~~y directly or indirectly benefit from a planning decision. THE CITY OF C6LUMBIA HEIGHTS DOES NOT DISCRIMINATF ON THE BASIS OF ~ISABI~ITY IN F_MPLOYMENT OR THE PROVISION OF SERVICES EQUAL OPPORTUNITY EMPLOYER PLANNING AND ZONING COMMISSION MINUTES OF THE REGULAR MEETING AUGUST 5, 2009 7:00 PM The meeting was called to order at 7:00 pm by Chair-Marlaine Szurek. Commission Members present- Fiorendino, Schmitt, Peterson, and Szurek. Commission Members absent-Thompson Also present were Gary Peterson (Council Liaison), Jeff Sargent (City Planner), Kevin Hansen (Public Works Director), and Shelley Hanson (Secretary). Motion by Fiorendin~o, seconded by Schmitt, to approve the minutes fr~om the meeting of July 7, 2009. All ayes. MOTION PASSED. PUBLIC HEARINGS CASE NUMBER: 2009-0801 APPLICANT: Jeff, Bobby & Steve's Autoworld LOCATION: 3701 Central Ave REQUEST: Conditional Use Permit for L~D Sign INTRODUCTTON Sargent explained tllat on August 25, 2008, the City Council adopted Ordinance 1553, allowing the use of dynamic LED signs throughout the City. The intent of this ordinance was to permit dynamic LED signs only as an integral part of a monument sign, with the exception of inotor fuel stations, which may utilize such signage on existing pylon signs in order to display fuei prices anly. It was discovered that the language specifying that motor fuel stations may only utilize dynamic LED signs as a part of existing pylon signs to display only fuel prices was inadvertently omitted from the ardinance. For this reason, the City Council issued a moratorium for dynamic LED display signage at the July 13, 2009 City Cou11ci1 Meetiilg. The reason for the moratorium was to give staff time to study and possibly amend the ordinance so that the original intent of Ordinance 1553 could be met. Prior to the issuance of the moratorium, Jeff's Bobby and Steve's Autoworld subrnitted an application for a Conditianal Use Pennit in order to utilize a dynamic LED display sign as a part of their existing pylon sign. Although t11e original intent of Ordinance 1553 was to allow dynamic LED displays on pylon signs for motor fuel stations to indicate fuel prices ol~ly, the current language of the ardinance does not specify this restriction. Because the applicallt filed the application prior to the issuance of the moratorium, the City Attorney's legal opinion was that this application would be allowed for processing, asld the request would be subject to the current language of the ordinance. Staff recognizes the iiecessity to amend the Zoning Code pertainiilg to dynamic LED display signs to better reflect the spirit and intent of the original ordinance. Sargent said the current language pertaining to dynamic LED displays gives an u~fair advantage to motor fuel stations that cunently have pylon signs. For example, the ordinance would not allow for a non-lnotor fuel station business to display an LED si~n on their existing pylon sign. PLANNING & ZONING COMMISSION MINUTES PAGE 2 AUGUST 5, 2009 However, with this said, staff aiso recognizes that the applicant submitted his application in good faith and with the ullderstanding that a dynamic LED dispiay would be aliowed on a pylon sign for llis busiiless. For this reason, staff will process the application and apply the Findings of Fact and other requirements based on the current ordinance. COMPREHENSIVE PLAN The Comprehensive Plan guides this property for commercial use. The use of signs helps promote the economic vitality of the city, which is a specific goal of the comprehensive plan. For this reasoil, the proposed use of a sign is consistent with the Camprehensive Plan. ZONING ORDINANCE The property is zoned GB, General Business, as are the praperties to the north and west. The properties to the east are zoned for one and two family residential use. The property to the south lies in the City af Minneapolis. Pylon signs are considered to be legally non-conforming uses along Central Avenue. The Design Guidelines, which were adapted in 2005, restricted all new freestanding signs to monument signs only. For this reason, ail existing pylan signs were "grandfathered in", and are aliowed to continue their existence unless removed for a period of one year. Altering pylon signs is pennitted, as long as the overall square footage of the sign does not inerease. The applicant is proposing to replace 33.5 square feet af existing signage with a 33.5-square-foot dynamic LED display sign. The overall square faotage of the sign will not increase. Dynamic LED display signage may also occupy no greater than 50% of the overall square footage of the sign. The currcnt pylon sign is 75.8 square feet. The total amount of LED signage will be less than 50% of the averall square footage of the sign. FINDINGS OF FACT Section 9.104 (H) of the Zoning Ordinance outlines nine conditions that must be met in order for the City Council to grant a Conditional Use Pennit. They are as follows: (a) The use is one of the conditional uses listed for the zoning district in which the property is located, or is a substantially similar use as determined by the Zaning Administrator. Digital LED sigtzs aNe specifically listed as a Conditional Use in the GB, General Business District. (b) The use is in harmony with the general purpose and intent of the Coinprehensive Plan. The Co~nprehensive Plan designates this area for con~mercial development that includes goals,for co~szrne~~cial and economic develop~nen~. These goals include: strengthening the image of the com~nunity as a desirable place to live and wo~~k, pNOViding opportunit~ies and mechanzsms for successful ~^ec~evelopment of targeted areas, preserving and enhancing the existing con~rnercial areas within the community, advocating high quality development and redevelopment within the comf~~unity, and enhancing the ecofzo~nic viability of the community. The applicant's ~roposal for a digital LED sign is consistent wit1~ these goals, as the sign N~ill be used to pronzote t~he economic vitality of the city. (c) The use will not impose hazards or disturbuig influei~ces on neighboring properties. The applzcant will have to abide by specific develop»~ent standards as they relate to LED signs. These standards were adopted t~ help en.sure cz li»~iting distur•bing i~fluence on neighborzng properties. Given tl2e location of the proposed sign and its orierztation to Central Avenue, staff feels that the use will not impose haza~°ds on~ the neighboring p~^ope~rties. PLANNING & ZONING COMMISSION MINUTES PAGE 3 AUGUST 5, 2009 (d) The use will not substantially diminish the use of property in the immediate vicinity. The use of property in the it~~tnediate vicinity will not be di~rrinished by the placement of a digital LED sign c~t 3701 Central Avenue. (e) The use will be designed, constructed, operated and maintained in a manner that is compatible witli the appearance of the existing or intended character of the surrounding area. The applicant will be Yequir^ed to abide by specific developrnent standards as th~y ~elate to LED signs. These standards will help ensure con~patibility wit~h the appearance of the existing surrounding area. (~ The use and property upon which the use is located are adequately served by essential public facilities and services. This zs coi~rect. (g) Adequate measures have been or will be taken to minimize traffic congestian on the public streets and to provide for appropriate on-site circulation of traffic. The use of a digital LED sign at this location will not affect traf~c. (h) The use will not cause a negative cumulative effect, when considered in conjunction with the ci.unulative effect of other uses is the iinmediate vicinity. By subjecting the use of a digital LED sign to specific develo~ment standa~~ds, it is intended that the use wzll not cause a negative cumulative effect. (i) The use complies with a11 other applicable regulations for the district u1 which it is located. This is cor~°ect~. Staff recominends approval of the proposed CUP for a digital LED sign for Jeff's Bobby and Steve's Autoworld, located at 3701 Central Avenue. uestions from inernbers: Szurek asked if they would be held to the same standards as the Liquor Stores. Sargent stated they would and that their messages can't change more often than every 10 minutes. She asked if the owner is aware of that, and Sargent said they were. Sciunitt asked why this sign is being "grandfathered in" when the NE Business Center sign wasn't. Sargent explained that they inay reface the existing sign as long as they don't expand it. He went on to explain that when the Sign Ordinance was adopted last year, NE Business Center (and two other businesses) were given a one month alert to bring their signs into compliance in regards to the messaging display. The pylon signs thelnselves were "grandfathered in", but the message portion would need to ineet the new criteria set in the Ordinance. The new owners of that business center decided not to use the existing sign. Schnutt aslced how long the lnoratorium would be in place? Sargent said the ainendment clarifying the ordinance language should be on the September agenda. Sclunitt noted that she would like to see the time period on the messages change from 10 minutes to 3 minutes. It would allow customers traveling down the road to see more messages regarding the businesses. PLANNING & ZONING COMMISSION MINUTES PAGE 4 AUGUST 5, 2009 Fiorendiilo disagreed with her. He felt 10-minute intervals were good. Three minutes intervals would cause tra~c problems by distracting drivers. Peterson asked how many lines of printed message there would be. Sargent said that would vary depending on the message being displayed, but felt that 3 lines would most often be used. Peterson felt it would be a safety hazard if tao many lines were displayed to distract driver's attention away froin the raad. He also agreed that three-minute intervai changes would be acceptable. Peterson asked how many pylon signs could be affected if the language is left as is. Sargent said it could affect the four gas stations that have existing pylon signs-Holiday, Superamerica, Jeff, Bobby & Steve's, and the Speedy Mart on 40~' and University. He said we would be creating non-conforming uses and if the business use changed, it would create a violation of the Ordinance. Sargent pointed out that it creates an unfair advantage to these businesses over others that can't do this, and the intent of the original ordinance is not being met. He explained that in the Ordinazlce passed we made an exception to allow Pylon Signs for gas stations to display gas prices only. VVe failed to stipulate "price only" so this created a loop hole. Peterson asked if the intent was ta exclude this possibility? Sargent stated it was, and that is why the moratorium was put in place so the correction could be made to the language. Peterson then stated he thought the owner should voluntarily abide by the intent of the ordinance, knowing an exceptian was already made especially for them to display gas prices, especially since the clarification is being made, so that he doesn't have any special rights aver ather businesses in town. Public Hearing Opened: No one wished to speak on this matter. Public Hearing Closed. Motioil by Fiorendino, secai~ded by Sclunitt, that the Planning Commission recommends the City Couneil approve the Conditional Use Pernsit for a for a digital LED sign for Jeff's Bobby and Steve's Autoworld, located at 3701 Central Avenue, subject to certain conditions of approval that have been found to be necessary to protect the public interest and ensure compliance with the provisions of the Zoning and Development Ordinance, including: 1. Tlze dynamic LED signs naay occupy no more than fifty percent (SO%) of the actual copy and graphic area. The rem~ainder of the sign n~ust not have the capability to liave dy~zamic LED signs, even if not used. Only one, conti~uous dynarnic display area is allowed vn a sign face. 2. The dynan~ic LED sign may not change or move 1no~e ofterr than once every ten (10) minutes, except~ one for which changes are necessary to correct hour-and-n~~inute, date, or t~en~pe~°ature inforn2ation. 3. A display of tim~e, date or te~7~perature inforrnatzon rnay change as fi~equently as once every ten (10) seconds, however infornzation displayed not relating to the date, ti~ne or temperatur^e must not change or nzove »zo~°e often than once eve~ y ten (1 D) ~rrir2utes. 4. Tl~e in2ages and messages displayed ~r~ust be static, and the transition fr~o~n one state display to cznother r~~ust be instantaneous without any special effects. Motion, animation and vzdeo iinages are pirohibited on dynarnzc LED szgn displays. PLANNING & ZONING COMMISSION MINUTES PAGE 5 AUGUST 5, 2009 S. The zmages and messages displayed must be complete in themselves, without continuation in content to the next image o~ message aN to any other sig-n. 6. The dynamic LED signs must be designed and equip~ed to freeze the device in one position if a malfunction shaZl occu~°. The displays must als~ be equipped wit~h a nzeans to immediately discontinue the display if it malfunctions, and the sign owner must immediately stop the dyna~nic display when notified by the city that it is not complying with the standal^ds of this ordinance. 7. The dynamic LED signs may not exceed a maximum illumination of S, 000 nits (candelas per squa~°e meter) during daylight hours and a maximum illumination of ~00 nits (candelas per square meter) between dusk to dawn as measu~•ed fYOrr~ the sign's face at mcrximu~n brightness. The dynan~ic LED signs naust have an autonzatic dimrr~er control to produce a distinct illumination change fi~om a higher illumination level to a lo~ver level for^ the ti~ne period between one-half hour befor^e sunset and one half-hour after sunrise. Roll Caii: Szurek and Fiorendina-aye Schmitt and Peterson-nay MOTION FAILED. This matter will go to the City Council without a recommendation from the Piamiing & Zoning Commission on August 10, 2009. CASE NUMBER: 2009-0802 APPLICANT: Mr. BBQ LOCATION: 4621 Central ~lvenue REQUEST: 5-foot setback variance and a 5-foot height variance INTRODUCTION Sargent explained that on December 2, 2008, Mr. BBQ was granted a site plan approval to install a new monument sign for the business located at 4621 Central Avenue. At that time, the applicants stated that they would place the monument sign 6 feet from the front property line and the sign would also meet all other sign code regulations. As the applicants went through the construction process for the sign, they realized that the property line was not where they previously anticipated it would be. After completing a survey of the property, it was revealed that the property line was located approximately 1 foot from the hard surface parking area for the restaurant, leaving no room to place a monument sign. Sargent stated the applicant is now requesting two variances. The first is a 5-foot front yard setback variance for a inonument sign per Code Section 9.106 (P}(12)(a) 3, to enable the applicants to place to monument sign as close to Central Avenue as possible. Placing the sign on the front property line would also alleviate the applicants from locating the sign in the middle of the parking lot. The second variance request is a 5-foot height variance per Code Section 9.106 (P)(12)(a) 3, to enable the monuinent sign to be 13 feet in height. The applicants stated that the proposed location of the monument sign - abutting the front property line - would be directly adjacent to required on-site parking. If a car were to park next to an 8-foot high sign, the sign would be blocked from view. PLANNING & ZONING COMMISSION MINUTF,S PAGE 6 AUGUST 5, 2009 ZONING ORDINAI~CE The property at 4621 Central Avenue is located in the General Business District (GB), as are the properties to the north and south. The properties to the east are zaned R-3, Multiple Family Residential and the properties to the west are in the City of Hilltop. The subject parcel is also located within the Design Overlay Highway District, and is subject the regulations for such properties. The City Code at Section 9.106 (P)(12) states that monument signs in the GB District shall be limited to 40 square feet per side, eight (8) feet in height, aild shall be set back a minimum of five (5) feet from all property lines. The applicant's sign plan indicates that the monument sign will be 40 square feet in area, thirteen (13) feet in height and placed directly on the front property line. For this reason, a 5-foot height variance and 5-foot front yard setback variance are required. PARKING The property currently l~as 21 parking stalls for customer parking. The nl.unber of parking stalls for the restaurant will remain unchanged, as the proposed manuinent sign wiil be located next to the parking area along the front property line. COMPREHENSIVE PLAN The Comprehensive P1an designates this area for coinmercial development that includes goals for commercial and econolnic development. These goals include: strengthening the imag~ of the coinmunity as a desirable place to live and work, providing opportunities and mechanisins for successful redevelopment of targeted areas, preserving and enhancing the existin~ commercial areas within the corninunity, advocating high quality development aild redevelopment within the community, and enhancing the economic viability of the community. The applicant's praposal for a monument sign is consistent with these goals, as the sign will be used to proinote the economic vitality of the city. FiNDINGS OF FACT (Variances) Section 9.104 (G} of the Zoivng Ordinance outlines five findings of fact that must be met in order for the City Council to grant a variance. They are as follows: a} Because of the particular physical surroundings, or the shape, configuration, topography, or other conditions of the specific parcel of land involved, strict adherence to the provisions of this article would cause undue hardship. Setback Variance: Tlze p~^operty previously utilized pylon sign when Cousin's Subs occu~zed the space. Since then, t~he pylon sign was destroyed but never replaced. Being that the Design Guidelines ~nly permit ynonun~ent signs, a»~onunzent sign would be the only type of freestanding sign that the business could incorpo~°crte. Pr~esently, the front property line is located approxi~nately 1, foot, fi°onz the parking lot leaving very little ~oom to place a nzonument sign. If a monument si~n were located in a position consistent with the Sign Code, Zhe sign ~vould have to be placed in the dNive aisle for the parking lot, rending the parking lot useless. In this case, the 1~ardship is the current locativn atid proxi»~ity o f the parking lot in relation to the fr^ont property line. PLANNING & ZONING COMMISSION 1VIINUTES PAGE 7 AUGUST 5, 2009 Height Variance: The applicant stat~ed that even if the sign were placed directly on the fi~ont prope~^ty line, it would be obstr~ucted from view if a car were parked next to it in the parking lot. The r equested height variance would enable for this potential ~r~ble~n to be carrected. Staff feels that this ~ationale is not a suitable hardship for such an extreme variance ~~eque~t. If the setback variance u~ere granted, tlze sign would be placed as close to t~he front pr~operty line as possible and should alleviate any type of visibility issues. b) The conditions upon which the variance is based are unique to the specific paxcel of land involved and are generally nat applicable to other properties within the same zoning classification. This parcel does not have any pr~ivate gr°een space w7zere a n~anument sign mzgh~t be located because the iinpr~vement.s were const~~ucted at a time whe~e placzng a monunz~ent sign on the property was not a concer^n. Altl~ough every property along Central Avenue in the Gene~~al Business Dzstrict is unique in its layout, it would not be unreasonable to assume that there is mo~°e than o~~e parcel that does not have ample roon~ in the front of the property to plaee a ~nonutytent szgn. c) The difficulty ar hardship is caused by the provisions of this article and has not been created by any person currently having a legal interest in the property. The applicant bought the pro~erty after the previous pylon sign had been re~noved and the placement of the c~riveway and parking arecrs we~°e already established. The hardships stat~ed by the applicant are caused by the preexistzng configuration of the building and parking aNeas on the land. d} The granting of the variance is in harmony with the generai purpose and intent of the comprehellsive plan. The Comprelzensive Plan deszgnates this ar~ea for commercial develop~n~ent that includes goals for comn~~ercial and econornic developnaent. These goals include: strengthening the i~nage of the community as a desirable place to live and work, providing opportunities anc~ mechanisms for successful redevelopment of ta~geted areas, pr°eseNVing and enhancing the existing coin~neNCial areas within t1~e community, advocating high quality development and redevelopt~~ent within the co~nmunity, and enhancing the econornic viability of the community. The applicant's pro~osal,for a rnonutnent sign is cc~nszstent witlz these goals, as the sign will be used to p~~omote the econo~n~ic vitality of the city. e) The granting of the variance will not be materially detiiinental to the puhlic welfare or materially injurious to the enjoymei~t, use, development or value of property or iinproven~ents u~ the vicinity. Setback Variance: Granting the setback va~^zance would not be »~aterially detri~nental to the public irz thcrt it would hel~ place the monument sign away fro»z on-site vel~icular traffic and would also enable patrons a better opportunity to view the sign. PLANNING & ZONING COMMISSION MINUTES PAGE 8 AUGUST 5, 2009 Height Variance: A 5 foot height varzance is too extr~eme and would cause a disproportional view of the p~ope~^ty, which would not be to scale with the existing building. A 13 foot sign is equivalent to the height of a one-story bzrilding and would look out of place on a small szzed commer°cial p~~operty. RECOMMENDATION Staff reconunends approval of the 5-foot front yard setback variance in that there exists a suitable hardship to justify the request. However, stafl recanunends denial of the 5-foot height variance because of a lack of hardship and the potential negative iinpacts that a 13-foot-ta11 monument sign might present. uestions from meinbers: Peterson noted that several other businesses along Central Avenue ha~e met the setback requirements. He asked how many businesses such as this ane would have trouble doing so. Sargent stated he had nat taken a survey of all the businesses, so he did not have a number. He pointed out that the Right af Way along Central Avenue varies and existing parking lots that were placed there years ago cause hardship for some businesses, such as this one, to rneet the sethack requirements for monuinent signs. If the sign were installed according to the requirements, it would literaliy be in the middie oftheir parking lot. Peterson asked if the parking or green area would be affected if the sign is piaced where they request. Sargent said parking would not be affected and there is little green space on this property. The boulevard area depicted on the picture is actually the Highway Right of Way. He stated the commission could require some landscaping or curbing around the sign as a condition of approval. Szurek asked what the height allowance is for monument signs? Sargent explained that it is 8 feet for one story buildings and up to 10 feet for buildings that are 22 feet ar izigher. Schmitt stated she agrees with staff that since this sign is so close to the street, the extra height being requested would be too much. She doesn't think the pylon sign to the north of this site wili cause a problem for this sign. She also agrees tl~at the monument sign should have some protection around it, as it is so close to the driveway. Fiorendino asked whether the sign wili go through any other appravai pi°ocess. Sargent stated that it already was approved as part of the site plan and that a building permit will be necessary to install it. He stated that one of the conditions noted is that the base will need to inatch the exterior of the buildi~lg. The consensus of the members present was they a~ree with staff to grant the setbaek variance and to dei7y the variance for additional height. PLANNING & ZONING COMMISSION MINUTES PAGE 9 AUGUST 5, 2009 Public Hearing Opened. No one wished to speak. Public Hearing Closed. Motion by Fiorendino, seconded by Peterson, that the Plaiming Coinrnission recammends the City Council approve the 5-foot front yard setback variance for a monument sign per Code Section 9.106 (P)(12}(a} 3 of the City Code, subject to certain conditions of approval that ha~e been found to be necessary to protect the public interest and ensure compliance with the provisions of the Loning and Development Ordinance, including: 1. All applicatian materials, maps, drawings, and descriptive infarnlation submitted with the application snall become part of the permit. 2. The base of the monument sign will be constructed of a inasonry or brick base to match the principal structure. 3. The applicants will obtain a building permit for the sign prior ta colzstruction of the monument sign. 4. There will be curbing and landscaping around the base of the sign to ensure public safety. All ayes. MOTION PASSED. The following Resolutiol~ will go to the City Council for consideration August 10, 2009. RESOLUTION NO. 2009-7~X RESOLUTION APPROVING A VARIANCE FROM CERTAIN CONDITIONS OF THE CITY OF COLUMBIA HEIGHTS ZONING CODE FOR MR. BBQ WHEREAS, a proposal (Case # 2009-0802) has been submitted by Mr. BBQ to the City Council requesting a variance from the Ciry of Columbia Heights Zoning Code at the following site: ADDRESS: 4621 Central Avei~ue LEGAL DESGRIPTION. O~z file at City Hali. THE APPLICANT SEEKS THE FOLLOWING RELIEF: A 5-foot front yard setback variance for a monumeilt sign per Code Section 9.106 (P)(12}(a) 3. WHEREAS, tl~e Plalliiing Commission has held a public hea~ring as required by the City Zoning Code aii August 5, 2009; ~VHEREAS, the Ci1y Council has considered the advice and recommendations of the Plan~ling Commission regarding the effect of the proposed variance upon the health, safety, at~d welfare of the coinmunity and its Comprehensive Plan, as well as any eoncenl related to traffic, property values, light, air, danger of fire, and risk to public safety, in the surroundillg ~rea; NOW, TI~IEREFORE, BE IT RESOLVED by the City Council of the City of Coltiimbia Heights that the City Couilcil aeeepts and adopts the following findiilgs of the Planning Coi7lmissio~~: PLANNING & ZONING COMMISSION MINUTES PAGE 10 AUGUST 5, 2009 1. Because of the particular physical surroundings, or the shape, configuration, topography, or other conditions of the specific parcel of land involved, ~~here strict adherence to fhe provisions of this Ordinance would cause undue hardship. 2. Tl~e conditions upon which the variance is based are unique to the specific parcel of land involved and are generally not applicable to other properties within Yl~e same zoning classification. 3. The difficulty or hardship is caused by the provisions of this Ordinance and l~as not been created by ai~y person currently having legal interest in the property. 4. The granting of the variance is in hannony with the general purpose a11d intent of the Comprehensive Pian. 5. The granting of the variance will not he materially detrimental to the public welfare or materially injurious to the enjoyment, use, development or value of property oi- iinprovements in the vicinity. FURTHER, BE IT RESOLVED, tl~at tlle attached plans, maps, and other information shall become part of this variance and approval; and in granting this variance the city and the applicant agree that this varia~ice shall hecome null and void if the project has nat been completed withul one (1) calendar year after the approval date, subject to petitioi~ for renewal of the permit. CONDITIONS ATTACHED: All application materials, maps, dra~vings, and descriptive infonnation subr~~itted with the application shall become part of the permit. The hase of the rnonumellt sign will be canstructed of a masonry or brick base to match the principal structure. 3. The applicailts will obtain a building pennit for the sign prior to construction of tl~e monument sign. Motion by Fiorendino, seconded by Peterson, that the Planning Coinmission recommends the City Cauncil deny the 5-foat height variance for a manument sign for Mr. BBQ, located at 4621 Central Avenue because of the tack of a justifiable hardship and because grai7ting the variance would cause potential negative impacts to the public and surrounding properties. All ayes. MOTION PASSED. The following Resolution will go to the City Council for consideration August 10, 2009. RESOLUTION NO. Zaas-~ RESOLUTION OF DENIAL FROM CERTAIN CONDITIONS OF THE CITY OF COLUMBIA HEIGHTS ZONING CODE FOR MR. BBQ WHEREAS, a proposal (Case # 2009-0802) has been submitted by Mr. BBQ to the City Council requesting a variance from the City of Columbia Heigl~ts Zoning Code at the followi~lg site: ADDRESS: 4621 Central Avenue LEGAL D~SCRIPTION: On File at City Hall. THE APPLICANT SEEKS THE FOLLOWING RELIEF: a 5-foot hei~ht variance for a~noniunel~t sign per Code Section 9.106 (P)(12)(a) 3. WHEREAS, the Plamling Commissioi~ has held a public hearin~ as required by the City Zoning Code on August 5, 2009; PLANNING & ZONING COMMISSION MINUTES PAGE 11 AUGUST 5, 2009 WHEREAS, the City Council has considered the advice arld recommendations of the Planning Commission regarding the effect of the proposed variance upon the health, safety, and welfare of the community and its Comprehensive Plan, as well as any concenl related to traffic, property values, light, air, danger of fire, and risk to public safety, in t11e surrounding area; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Columbia Heights tl~at the City Council does accept and shall adopt the fol(owing findings of the Planning Commission: 1. Because of the particular physical surraundings, or the sl~ape, configuration, topography, or other conditions of the specific parcel of land involved, wl~ere strict adherence to the provisions of tl~is Ordinance would cause undue hardship. There is a lack of hardship needed to support the variance. 2. The conditions upo11 which the variance is based are unique to the speci~c parcel of la~~d it7volved ai~d are generally riot applicable to other properties within the same zo~~iug classification. Although every property along Central Avenue in the General Business District is unique in its layaut, there are very €ew properties in which the oniy lacation of a rnonument sign would be directly abutting and adjacent to parking stalls. 3. The difficulty or hardship is caused by the provisions of this Ordinance and has not been created by any person currently having legal interest in the property. There is a lack of hardship needed to su~port the variance. 4. The granting of the variance is in hannony with the general purpose and intent of the Comprehensive Plan. The intent of the Comprehensive Plan is to promote the economic vitality af the City. Granting the variance request would assist in achieving this gaal. 5. The grantiilg of the variance will not be materially detrimental to the ~ublic welfare or inaterially injurious to the enjoyment, use, develo}~me~1t or valuc ofproperty or ilnprovements in the vicinity. A 5-foot height variance is too extreme and would cause a dispraportional view of the property, causing material detriment to the publie welfare. FURTHER, BE IT RESOLVED, that said variance requests are denied based oi1 the following: 1. There is a lack of viable hardship to justify the requested variance. 2. Granting tl~e variance would permit a strueture that would he disproportionate to the remainder of the property ai~d would be materially detrimeiltal to the public welfare. NE~V SUSINESS None af this time. PLANNING & ZONiNG COMMISSION MINUTES PAGE 12 AUGUST 5, 2009 OTHER BUSINESS Review Concent Plan for 49th Avenue Pedestrian Brid~e: Kevin Hansen explained that staff has been working on replacement of the pedestrian bridge at 49ti' and Central as part of the Federal Stimulus Program. He reviewed the items that are currently being worked an, such as, environmental issues, obtaining Right of Way easements or rights, the design of the bridge, and securing the funds. The City needs to deliver the complete plan by November 13, 2009, or it will lose $2.5 million in Stimulus Fuslds. Hansen explail7ed the new bridge will have a spiral access on the east side and a switchback access an the west side. He also stated the bridge would be relocated about 30-50 feet further south from the intersection to increase visibility of the intersection and af the stoplights. Hansen said they will incorporate the Design Guidelines into the design of the bridge. He is currentiy gaiiling input from the public on which design is preferred from four potential plans he has for viewing. Two of the patential designs use a truss style design and two use a beam supported flat deck style. He is looking for any comments the members have on this project as he has to move quickly in order to get the project ready to go by the November deadline. He said the biggest hurdle is obtaining a11 the right of ways. Peterson was disappointed that the west side will still have a switchback access. He wondered how balanced it will look wrth a spiral access on the east side. He is concerned that the underside of the switchback will look "closed in°'. Hansen explained the new accesses wi11 be larger than the previous ones as they will have to meet all ADA requirements which is a condition of obtaining the funding. He said this could impact the visibility of the Saver's site, however, he f~lt the visibility of the businesses on the Hilltop side will be better due to relocating the bridge a little more to the south. Most meinbers liked the truss style design. Hansen said that design is the most popular froin those he has heard from. Schinitt however, liked the beain-supported style, but also recognized it would be nice to eliminate the need for a center support for visibility reasons. Hansen said staff is alsa laoking at aesthetic treahnents such as lighting and city identificatioll as the gateway to our cainmunity. As stated earlier, the plan must be camplete hy November, bidding would take place between December and February, and construction would take place in the summer of 2010. Comprehensive Plan Sargent reparted that staff received word from the Met Council that the Comprehensive Plan Update is considered complete and is in the process of review. The City should hear something by November oiT whether any additioizal infoi-~nation wiil be ileeded. The meeting was adjourned at 8:15 pm. Respectfully submitted, Sllelley Hanson Secretary CITY OF COLUMBIA HEIGHTS PLANNING REPORT CASE NUMBER: 2009-0901 DATE: September 1, 2009 TO: Columbia Heights Planning Commission APPLICANT: Filfillah Restaurant (Salman Abu-Sara) LOCATION: 4301 Central Avenue REQUEST: Site Plan Approval for shared parking PREPARED BY: Jeff Sargent, City Planner INTRODUCTION The Filfillah Restaurant and new grocery store will be opening at 4301 Central Avenue. In order to satisfy their parking requirements, the storeowners will need to share some of the parking provided by the Laundromat to the north. The City Code has a provision to allow this, however, before this can occur the City Council needs to approve the request through a Site Plan Approval process. The applicant submitted an application to get onto the September 1, 2009 Planning and Zoning Commission agenda. However, despite several conversations with the applicant, staff has been unable to obtain enough information to formally process the request. Thus, the application is considered incomplete. For this reason, staff recommends to table the application to the October 6, 2009 Planning and Zoning Commission meeting, to give the applicant ample time to submit the necessary information. RECOMMENDATION Move to table Case No. 2009-0901 to the October 6, 2009 Planning and Zoning Commission meeting in order to give the applicant ample time to submit the necessary application materials. CITY OF COLUMBIA HEIGHTS PLANNING REPORT CASE NUMBER: 2009-0902 DATE: September 1, 2009 TO: Columbia Heights Planning Commission APPLICANT: Tim Sullivan ~OCATION: 1201 - 45t" Avenue NE REQUEST: 11-foot front yard setback variance for a deck PREPARED BY: Jeff Sargent, City Planner INTRODUCTION At this time, the applicant is requesting an 11-foot front yard setback variance per Code Section 9.106 (B)(8), in order to construct a new deck. The City's Zoning Code requires that the residential front yard setback shall be the average depth of all buildings within 200 feet of the lot in question and within the same block front, plus or minus 10% of the average depth. The average setback af all the houses within 200 feet of the subject parcel, and on the same block front, is 35.8 feet. The house at 1201 - 45t" Avenue is set back 32.8 feet frorn the front property line. The applicant is requesting to construct a deck that will extend 10 feet closer to the front property line than where the current house is situated. For this reason, an 11-foot front yard setback variance is required. ZONING ORDINANCE The property at 1201 - 45t" Avenue is located in the R-2A, One and Two Family Residential District, as are the properties in the immediate vicinity. The subject parcel is a corner lot on the corner of 45th Avenue and Fillmore Street. Per Zoning Code definitions, the front yard is that yard abutting 45th Avenue, and any proposed construction in the front yard would be subject to the front yard averaging requirements. The current dwelling has two points of entry into the front of the house. Historically, the west door had concrete steps and the east door had wooden steps with a small landing for egress into the house. The steps and landing for the west entry were in need of repair and have recently been removed. The applicant would like to construct the deck for both aesthetic and functional purposes. He stated that it would look better and make more sense if there was one set of steps for both entries rather than having two separate sets of stairs. The deck would also add aesthetic value to the property and curb appeal. City of Columbia Heights Planning Commission September 1, 2009 1201 - 45th Avenue - Deck Variance Case # 2009-0902 COMPREHENSIVE PLAN The Comprehensive Plan guides this area as residential. A variance to allow an addition to a preexisting residential dwelling would be consistent with the intent of the Comprehensive Plan guiding of the area. FINDINGS OF FACT (Variance) Section 9.104 (G) of the Zoning Ordinance outlines five findings of fact that must be met in order for the City Council to grant a variance. They are as follows: a) Because af the particular physical surroundings, or the shape, configuration, topography, or other conditions of the specific parcel of land involved, strict adherence to the provisions of this article would cause undue hardship. The applicant would like to add a deck to the house. Because of the situation of the house on the property and a steep grade differential towards the rear of the property, placing a deck on the rear of the house would be impractical. Placing the deck on the front of the house would also enable the homeowner fo tie-in the two front entrances, making the property more aesthetically pleasing and functional. b) The conditions upon which the variance is based are unique to the specific parcel of land involved and are generally not applicable to other properties within the same zoning classification. The placement of the house on the property, along with the topography of the land is a unique situation. c) The difficulty or hardship is caused by the provisions of this article and has not been created by any person currently having a legal interest in the property. Page 2 City of Columbia Heights Planning Commission September 1, 2009 1201 - 45t" Avenue - Deck Variance Case # 2009-090Z The hardship was created by the original construction of the house and placement of the house on the lot. The applicant did not have a legal interest in the property at the time of its construction. d) The granting of the variance is in harmony with the general purpose and intent of the comprehensive plan. The Comprehensive Plan guides this area as residential. A variance to allow an addition to a preexisting residential dwelling would be consistent with the intent of the Comprehensive Plan guiding of the area. e) The granting of the variance will not be materially detrimental to the public welfare or materially injurious to the enjoyment, use, development or value of property or improvements in the vicinity. The granting of the variance would not be materially detrimental; rather it would create more value to the property, thus enhancing the neighborhood. RECOMMENDATION Staff recommends approval of the 11-foot front yard setback variance for the construction of a new deck located at 1201 - 45t" Avenue NE. Motion: That the Planning Commission recommends that the City Council approve the 11-foot front yard setback variance for the construction of a new deck per Code Section 9.106 (B)(8) of the City Code, subject to certain conditions of approval that have been found to be necessary to protect the public interest and ensure compliance with the provisions of the Zoning and Development Ordinance, including: All application materials, maps, drawings, and descriptive information submitted with the application shall become part of the permit. 2. The applicant shall obtain a building permit prior to the construction of the deck. ATTACHMENTS ^ Draft Resolution ^ Location Map ^ Site Plan ^ Letter from applicant Page 3 RESOLUTION NO. 2009-XXX RESOLUTION APPROVING A VARIANCE FROM CERTATN CONDITIONS OF THE CITY OF COLUMBIA HEIGHTS ZONING CODE FOR TIM SULLIVAN WHEREAS, a propos~l (Case # 2009-0902) has been submitted by Tim Sullivan to the City Council requesting a variance from the City of Columbia Heights Zoning Code at the following site: ADDRESS: 1201 - 45t~' Avenue NE LEGAL DESCRIPTION: On file at City Hall. THE APPLICANT SEEKS THE FOLLOWING RELIEF: An 11-foot front yard setback variance for the constniction of a deck per Code Section 9.106 (B)(8). WHEREAS, the Planning Commission has held a public hearing as required by the City Zoning Code on September 1, 2009; WHEREAS, the City Cotincil has considered the advice and recommendations of the Plam~in~ Cominission regardin~ the effect of the proposed variance upon the health, safety, and welfare of the community and its Comprehensive Plan, as well as any concenl related to traffic, property values, light, air, danger of fire, and risk to public safety, ii~ the snrrounding area; NOW, THEREFORE, BE IT KESa-LVED by the City Council of the City of Columbia Heights that the City Council accepts and adopts the following findin~s of the Plamling Commission: 1. Because of the particular physical surroundings, or the shape, configuration, topography, or other conditions of the specific parcel of land involved, where strict adherence to the provisions of this Ordinance would cause undue hardship. 2. The conditions upon which the variailce is based are unique to the specitic parcel of land involved and are generally ilot applicable to other properties within the same zoning classification. The difficulty or hardslzip is caused by the provisions of this Ordinance and has not been created by any person currently having legal interest in the property. 4. The granting of the variance is in harmony with the general purpose and intent of the Comprehensive P1an. 5. The granting of the variailce will not be materially detrimental to the public welfare or nlaterially injurious to the enjoyment, use, development or value of property or improvements in the vicinity. Resolution No. 2009-XXX 2 FURTHEK, I3E IT RESOLVED, that the attached plans, maps, and other infonnation shall becon~e part of tlus variance and approval; and in ~ranting this val-iance the city and the applicant a~ree that this variance shall become nu11 and void if the project has not been completed within one (1) calendar year after the approval date, subject to petition for renewal of the pernlit. CONIDTIONS ATTACHED: l. All application materials, maps, drawings, and deseriptive information submitted with the application shall become part of the permit. 2. Tl1e ~pplicant shall obtain a building perrnit prior to the construction of the deck. Passed this 14`~' day of September, 2009 Offered by: Seconded by: Roll Call: Ayes: Nays: Mayor Gary L. Peterson Attest: Patricia Muscovitz, CNIC City Clerlc 1201 - 45TH AVENUE 4641 4630 4635 ~ 4629 4616 4617 4612 4609 4608 i 4605 4606 . 1101 1111 4557 4554 4549 4548 4543 4542 4537 4536 4531 - 4534 4525 - 4519 4530 4518 4515 4516 4509 4510 1035 4500 4637 4633 4625 4607 46TH 4633 4632 0 0 ~ ~ ~- c~ ' r~ ' v ' ~n ' 4633 ~r v `- ~ ' - d' ~ ~ `- a' `- ~t r- d' ~- d ~ d ~- v .- d ~ 4630 4627 4626 4631 4624 W LN ARKVI 4625 P E 4618 4621 4620 4619 -- ~ ~ ~ ~ ~ ~ ~ ~ 4612 4615 4614 4613 `' `- ~ r' ~ ~ ~ ~ 4610 4608 4609 4608 4606 J W ~ ~ 4602 4603 `~ ~ ~ ~ a' ~ ~ `- `r ~ d' ~ ~ ~ 4600 u- 4603 ~ 4601 A VE 4558 4557 4556 4555 M °e~ c°~ o o co c•~ o 4550 4546 4547 4545 N e- N ~ N r' N ~ M r,. M T. 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AV E 4414 ~ N N ~ d' 00 ~ M M O ~' N I M O ~ ~ M M fG r O O M O p 00 p e- e- lV N N N N M M M ~ M ~l' M 4408 ~ ~ r p ~ O r r r r r !' r l~ r l~ r ~ r ~ t" l~ !~ !~ !" !~ !~ T T r t~ ~ N N r' M ti e- r' M O O ~ N tf> N O~ N ~ O e- r M n' M ~ M ~ M M e- ~ ~1' ~ d' N d' O~ O O M O O ~ N ~ N N M ~ l~ l~ ~ T ~ r- O7 r' r ~ O !" r ~ r ~ r r ~ r T l~ !" T T r l l 44TH AVE o ~ o ~ (C O M ct M 00 M e- ~ ~- ~ N O N M M O O ~ N N M p O ~ N N N M M M M - - ~ ~ o 0 0 ~ ~ ~ .- e- - r - e- - ~ N - N ~- ~ I, ~ ~ ~ r. ~ ~ ~ e . ~ ~ • ~ 4348 co o ~ ~. 4344 ~ N Location Map W~P~E ~~,~ S ~ The Home Depot # 2802 565d MAIN ST, NE, FRIt~LEY, M-V 55432 (763) 571-9600 Fri Aug 07 16:02:37 2009 This Project cannot be priced because not all materiais are carried in stock. See Store Associate for prices on non-stock items shown in Bill-of-Materials. TIMOTHY SULLIVAN DECK 214388 3D View The variance requested is the addition of a deck/walkway between doors on the front of the house. The current distance from the property line that is necessary to build is 35'. The actual distance to the street is 48' including the extra 15' (for a sidewalk if the county decided to put one in). The current stairs end at 35' from the property line, not allowing the construction. With the setup of the house, there are two doors on the front. (See attached proposed photo). Currently, there are two stairwells that are not adjoining and do not flow we11 with the house. It looks disjointed and unappealing. The addition of the deck/walkway would build on the aesthetics of the house, tying the front together. The way the house is setup, there is no way to build a deck in the back. The house is two stories in the back without a door on the second level to build over the driveway. The driveway extends the entire distance of the house making it infeasible to build on the first level. There are no opportunities to sit outside and enjoy the company of the neighboring houses. With the addition of the deck, the house would be more welcoming for neighbors walking by to stop and say hello and have a larger sense of community. With the neighboring community diininishing (rental property), this is very important to maintain with those that have lived in the neighborhood for years. CITY OF COLUMBIA HEIGHTS PLANNING REPORT CASE NUMBER: 2009-0903 DATE: September 1, 2009 TO: Columbia Heights Planning Commission APPLICANT: City of Columbia Heights LOCATION: City Wide REQUEST: Zoning Amendment for Smoke Shops PREPARED BY: Jeff Sargent, City Planner BACKGROUND On May 26, 2009, the City Council issued a six-month emergency moratorium on smoke shops within the City of Columbia Heights. Prior to the moratorium, the City of Columbia Heights had three (3) licensed smoke shops, one (1) pending application, and three (3) other applications for a smoke shop distributed but not yet formally applied for. This equaled a potential of seven (7) smoke shops in the City of Columbia Heights' commercial corridor, with the possibility of additional stores based on existing vacancies. The moratorium has given staff time to study the effects of multiple smoke shop uses within a small geographic commercial corridor. The State of Minnesota's Freedom to Breathe Act (FBA) was established to prohibit people from smoking inside buildings opened to the public. A provision of the FBA allows patrons of smoke shop establishments to sample tobacco products inside the building and prior to purchasing the merchandise for personal use. The intent of this provision was to give patrons an opportunity to purchase the type of tobacco they desired, not to give smoke shops the discretion to operate a smoking parlor. City Staff feels strongly about preserving the intent of the Freedom to Breathe Act, which attempts to increase the quality of life and public welfare by banning smoking in public places. The Freedom to Breathe Act, however, does not implicitly define the term "sampling". For this reason, it becomes extremely difficult to enforce the FBA when smoke shops allow multiple patrons to "sample" tobacco products in their store for long periods of time. For this reason, staff recommends a zoning amendment that would prohibit the sampling of tobacco and/or tobacco-related products within smoke shops and other public buildings. City of Columbia Heights Planning Commission September l, 2009 City of Columbia Heights, Smoke Shops Case # z009-0903 The State's Clean Indoor Act at Section 144.417 Subd. 4(a) allows Columbia Heights to enact and enforce more stringent measures to protect individuals from secondhand smoke. Staff will also recommend a Municipal Code amendment that would establish a new tobacco license specific to smoke shops, thus differentiating them from tobacco licenses given to gas stations, convenience stores, etc. The amendment would also limit the number of licenses issued in a year to smoke shops to five (5). Staff conducted a survey of 5 other cities to determine how many licenses each city has issued for smoke shop uses. A smoke shop is defined as a retail business in which no less than 90% of the retail sales derive from the sale of tobacco or tobacco related products. The results are as follows: City of Crystal : 1 City of New Hope: 1 City of Robbinsdale: 1 City of Fridley: 1 City of New Brighton: 0 Staff feels that allowing a high number of businesses that promote an unhealthy lifestyle usually evidences a less viable economic environment and is not conducive to a strong economic commercial future. COMPREHENSIVE PLAN One of the goals of the Comprehensive Plan is to enhance the economic viability of the comrnunity. The proposed amendment would be consistent with the Comprehensive Plan because limiting the number of smoke shop licenses would improve the economic viability of the City. An overarching goal of the Comprehensive Plan is to ensure the safety and welfare of the general public. By adhering the to intent of the Freedom to Breathe Act and by disallowing sampling or any type of smoking in a public building, compliance with the Comprehensive Plan will be met. ZONING ORDINANCE Currently, the Zoning Ordinance allows smoke shops as retail establishments in the LB, Limited Business, GB, General Business, and CBD, Central Business Districts as a permitted use. The proposed amendment would still allow for smoke shops as a permitted use in all commercial districts, however more specified regulations would be placed on smoke shops by subjecting them to some Specific Development Standards. These specific regulations include: outdoors. (a) The smoke shop must have an entrance door opening directly to the Page 2 City of Columbia Heights Planning Commission September 1, 2009 City of Columbia Heights, Smoke Shops Case # 2009-0903 (b) The primary revenue for the business is generated from the sale of tobacco, tobacco products or smoking related accessories. (c) A tobacco department or section of any individual business establishment with any type of liquor, food or restaurant license shall not be considered a smoke shop. (d) Sampling of lighted tobacco products is prohibited at all times. (e) The total number of City-issued Smoke Shop Licenses shall at no time exceed five (5). (f~ Any existing smoke shops at the time of the passage of this ordinance shall comply fully with the ordinance by December 31, 2010. The intent of this ordinance is to ensure that at no point will there be more than five (5) smoke shop licenses issued throughout the City. The existing four smoke shops in the City at the time of the passage of this ordinance will be counted towards the five smoke shop maximum. FINDINGS OF FACT Section 9.104 (F) of the Columbia Heights zoning code requires that the City Council make each of the following four findings before approving a zoning amendment: The amendment is consistent with the Comprehensive Plan. One of the goals of the Comprehensive Plan is to enhance the economic viability of the community. The proposed amendment would be consistent with the Comprehensive Plan because limiting the number of smoke shop licenses would improve the economic viability of the City. An overarching goal of the Comprehensive Plan is to ensure the safety and welfare of the general public. By adhering the to intent of the Freedom to Breathe Act and by disallowing sampling or any type of smoking in a public building, compliance with the Comprehensive Plan will be met. 2. The amendment is in the public interest and is not solely for the benefit of a single property owner. The proposed amendment would affect all commercially zoned properties throughouf the city and is not solely for the benefit of a single property owner. 3. Where the amendment is to change the zoning classification of a particular property, the existing use of the property and the zoning classification of property within the general area of the property in question are compatible with the proposed zoning classification. Page 3 City of Columbia Heights Planning Commission September 1, 2009 City of Columbia Neights, Smoke Shops Case # 2009-0903 The amendment would nof change the zoning classification of a particularproperty. 4. Where the amendment is to change the zoning classification of a particular property, there has been a change in the character or trend of development in the general area of the property in question, which has taken place since such property was placed in the current zoning classification. The amendment would not change the zoning classification of a particular property. RECOMMENDATION Staff recommends approval of the proposed Zoning Amendment. Motion: That the Planning Commission recommends that the City Council approve the proposed zoning amendment. Attachments • Draft zoning ordinance • Draft municipal ordinance Page 4 DRAFT ORDINANCE NO. XXXX I3~ING~ AN ORDIN~ANCE AMENDING ORDINANCE NO. 1490, CITY CODE OF 2045 RELATING TO THE USE OF SMOKE SHOPS WITHIN THE CITY OF COLUMBIA H~IGHTS Section 1: WHER~AS, the City of Columbia Heights promotes the health and safety of its citizens by encouraging a healthy lifestyle; and WHEREAS, the City of Columbia Hei~hts recognizes that using and promotiilg the use of tobacco and tobacco rela~ed products is not conducive to a healthy lifestyle; and WHEREAS, t11e State of Minnesota has created the Freedom to Breathe Act, which prohibits the use of tobaccc~ or tobacco related products inside public buildings, with the exception of smolce shops where sampling of t11e product may occur prior to fl1e purchase of the product; and WHEREAS, Minnesota State Statute 144.417, slibd. 4(a) allows a statutory or home rule charter city or county from enacting and enforcing more stringent ineasures to protect individuals fi-om secondhand snloke. Section 2: The City of Columbia Heights does ordain: Chapter 9, Article I, Section 9.103 of the Columbia Heights City Code, is proposed to inelude the fc~llowing additions and deletions: § 9.103 DEFINITIONS. For the pulpose of this article, the following definitions shall apply unless the context clearly indicaYes or requires a different meaniilg. SAMPLING, TOBACCO. The lighting, inhalation, or combination thereof of tobacco, tobacco paraphernalia, or tobacco-related products for the purpose of testing a tobacco product prior to the sale of such product. SMOKE SHOP. A retail establishment that has obtained an appropriate license, in which the primary revenue for the business is generated from the sale of tobacco, tobacco products or smoking related accessories. Chapter 9, Article T, Section 9.107 (C) of the Coh~mbia Hei~hts City Code, is proposed to incllide the fc~llowing additions and deletions: § 9.107 SPECIFIC DEVELOPMENT STANDARDS. (C) Specific development stanc~ards. The following uses are subject to specific development standards: (48) Snioke Shops. outdoors. (a) The smoke shop must have an entrance door opening directly to the (b) The primary revenue for the business is generated from the sale of tobacco, tobacco products or smoking related accessories. (c) A tobacco department or section of any individual business establishment with any type of liquor, food or restaurant license shali not be considered a smoke shop. (d) Sampling of lighted tobacco products is prohibited at all times. (e) The total number of City-issued Smoke Shop Licenses shall at no time exceed five (5). (f) Any existing smoke shops at the time of the passage of this ordinance shall be given a one-year amortization period to comply completely with the ordinance. Section 2: This ~rdinanee shall be in full force and effect from and after 30 days after its passage. Tirst Reading: , 2008 Second Reading: , 2008 Date of Passagc: Offered by: Seconded by: Roll Call: Mayor Gary L. Peterson Attest: Patricia Muscovitz, CMC City Clerk/Council Secretary § 5.301 PURPOS~ AND INTENT. Becatise the city recognizes that mai~y persons under the age of 18 years purchase or otherwise obtain, possess and Lise tobacco, tobacco products, and tobaeec~ related devices, and such sales, possession, aild use are violations of both state and federal laws; and because studies, which the city hereby accepts a11d adopts, have shown tliat most smolcers begin sinoking before they have reached the age of 18 years and that those persons who reach the age of 18 years without having started smoking are significantly less lilcely to begin smoking; and because smokiilg has been shown to be the cause of several serious health problen~s which subseqLiently plaee a tinancial burden on all levels of g~vermnent; this article shall be intended to regulate the sa1e, possession and use of tobacco, tobacco products, and tobacco related devices for the purpose of enforcing and fiirthering existing laws, to protect minors against the serious efiects associated with the illegal use of tobacco, tobacco products, and tobacco related devices, and to further the ofi~icial public policy of the state in regard to preventing young people from starting to smoke as stated in M.S. ~ 144.391, as it may be ameilded From time to time. (Ord. 1371, passed 5-11-98) § 5.302 DEFINITIONS. Except as lnay otherwise be provided or clearly in~plied by context, all tenns shall be given their commonlv accepted definitions. For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning. COMPLIANCE CHECKS. The systen~ the eit~y uses tc~ investigate ancl ensnre that those aut~horized to sell tobaeco, tobacco products, and tobacco related devices are following and complying with~ the requirements of this article. Coinplianee cllecks shall involve the use of minors as authorized by this article. Compliance checlcs sha11 also mean the use of minors who attempt to purchase tobacco, tobacco ploducts, oi- tobacco related devices for educational, research and training purposes as authorized by state and federal laws. Compliance checks may also be conducted by other units of government for the purpose of enforciilg appropriate federal, state or local laws and regulations relatin~ to tobacco, tobacco products, and tobacco 1-elated devices. INDIVIDUALLY PACKAGED. The practice of selling any tobacco or tobacco product wrapped individually for sale. Individlially wrapped tobacco and tobacco products shall include but not be limited to single cigarette packs, single bags or cans of loose tobacco in any forn7, and single cans or other packaging of snuff or chewing tobacco. Cartons or other packaging containing more than a single pack or other cc~i~tainer as described in this definition shall not be considered individually packaged. LOOSIES. The common terni used to refer to a single or individually packaged cigarette. MINOR. Any nahlral pe~-son who has not yet reached the age of 18 years. MOVEABLE PLACE OF BUSINESS. Any forin of business operated out of a tnick, van, automc~bile or other type of vehicle or transportable shelter and not a fixed address store front or other permanent type of structure authorized for sales transactions. RET~IIL ESTABLISHMEN7: Any place of business where tobacco, tobacco products or tobacco related devices are available for sale to the general public. The phrase shall include but not be liil~ited to grocery stores, convenience stores and restaurants. SALE. Any transfer of goods for money, trade, barter or other consideration. SAMPLING, TOBACCO. The lighting, inhalation, or combination thereof of tobacco, tobacco paraphernalia, or tobaeco-related products for the purpose of testing a tobacco produet prior to the sale of such product. SELF-SERVICE MERCHANDISING. Open displays of tobacco, tobacco products or tobacco related devices in any manner where any person shall have access to t~he tobacco, tobaceo produets, or tobacec~ related devices, without the assistanee or intervention of the licensee or the licensee"s employee. The assistance or intervention shall entail the actual physical exchange of the tobacco, tobacco product, or tobacco related device between the custoiner and the licensee or employee. The p1~~ase shall not include vending machines. Se1f-service sales are interpreted as being any sale where there is not an aetual physical exchange of the tobacco between the clerk and the customer. SMOKE SHOP. A retail establishment that has obtained an appropriate license, in which the primary revenue for the business is generated from the sale of tobacco, tobacco products or smoking related accessories. TOBACCO or TOBACCO PRODUCTS. Ai~y substance or item containing tobacco leaf, includiilg but not lilnited to cig~rettes, cigars, pipe tobacco, snLiff, fine cut or other chewing tobaceo, cheroots, stogies, perique, granulated, plug cut, crimp cut, ready-rubbed, and other smoking tobacco, snuff flowers, eavendish, sl~orts, plug and twist tobaccos, dipping tobaccos, refuse scraps, clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco leaf prepared ii1 such mannel as to be suitable for che~ving, sniffing or smoking. TOBACCO RELATED DEVICES. Any tobacco product as well as a pipe, rolling papers or other device intentionally designed or intended to be used in a ma~lner which enables the chewing, snifting or smokin~ of tobacco or tobacco products. vENDING MACHINE. Any mechanical, electric or electronic, or other type of deviee which dispenses tobacco, tobacco products c~r tobacco related devices upon the insertion of money, tokens or other fonn of payment directly into the machine by the person seeking to purchase the tobacco, tobacco product or tobacco related device. (Ord. 1371, passed 5-11-98) § 5.303 LICENSE. (A) License reqi~ired. No person shall sell or offer tc~ se11 any tobacco, tobacco products, or tobacco related device without first having obtaiiied a license to do so from the city. (B) S~noke Slzop License. No person shall operate a smoke shop without ~rst having obtained a Smoke Shop License to do so from the city. At any given time, there shall be no more than five (5) Smoke Shops, all with appropriate licenses, throughout the city. Currently existing smoke sho~ establishments should be granted the first preference to renew their smoke shop license if they choose to do so. (~ (C) Applicatio~z. An application for a license to sell tobacec~, tobacco products, or tobacco related devices shall be made oi1 a form pi°ovided by the city. The application shall contain the fii11 name of the applicant, the applicant's residential and biisiness addresses and telephone numbers, the name of the business for which the license is sought, and any additional information the city deems necessary. Upon receipt of a coii~pleted application, the Clei-k shall forward the application to the Police Department for a backgroimd and record check prior to formal review by the City Council. If the Clei°k shall determine that an application is inconlplete, he shall return the application to the applicant with notice of the infonnation necessary to make the application complete. {-~} (D) Act~ion. The City Council may either approve or deny the license, or it may delay actioll for such reasonable period of time as necessary to complete any investigation of the application or the applicant it deems necessary. If the City Couneil shall approve the license, the Clerk shall issue the license to the applieant If tlze City Colincil denies the license, notice of the denial shall be given to the applicant along with notice of the applicant's right tc~ appeal the City Council's decision. ~B) (E) 7e~•m. All licenses issued under this article shall follow the calendar year with an expiration date of December 31 of eac11 year and are not pro-rated. (-£-} (F) IZevocatzon or suspension. Any license issued under this article may be revolced or suspended as provided in ~ 5.313. (~} (G) 7rc~nsf~rs. A11 licenses issued under fllis article shall be valid only on the premises for which the license was issued and only for the person to whom the license was issued. Change of location or applicant will be required to be treated as a new applicant (-C-} (H) Moveczble I~lczce c~f~busiraess. No license shall be issued to a moveable place of business. Only fixed location businesses shall be eligible to be licensed under this article. ~(I) Dis~lay. All licenses shall be posted and displayed in plain view of the general public on the licensed prelnise. (~} (,~ Renewals. The renewal of a license issued under this section sha11 be handled in the same manner as the original application. The request for a renewal shall be made at least 30 days but no more than 60 days before the expiratioil of the current license. ~} (K) Issuance as privilege ar~d not~ a i~ight. The issuanee of a license issued undei this article sha11 be considered a pi•ivilege a~1d not an absolute right of the applica~lt and shall not entitle the holder to a~1 automatic renewal of the license. (Ord. 1371, passed 5-l 1-98) Perlalty~sec ~ 5.313 § 5.304 FEES. No license shall be issued under t11is article until the apprc~priate license fee sha11 be paid in fu11. The fee for a license Lmder this article shall be established in the city's schedule of fees. (Ord. 1371, passed 5-11-98) Penalt.~ see ~ 5.313 § 5.305 BASIS FOR DENIAL OF LICENSE. (A) Grounds lor denying the issiiance or renewal of a license under this article includes but is not limited fo the following: (1) The applicant is ui~der the a~e of 18 years. (2) The applicant, or any employee thereof, has been convicted withiil the past f ve years of any violation of a federal, state, or local law, ordinance provision, or other regulation relating to tobacco or tobacco products, or tobacco related devices. (3) The applicallt has had a license to se11 tobacco, tobacco products, or tobacco related devices revoked within the preceding 12 months of the date of application. (4) The applicant fails to provide any inforrnation required on the application, or provides false or i~isleading information. (5) The applicant is prohibited by federal, state, or other local law, ordinance, or other regulation from holding such a license. (B) However, except as nzay otherwise be provided by law, the existence of any particular ground for delual does nc~t mean that the city must deny the license. (C) If a license is mistakenly issLied or renewed to a person, it sha11 be revoked upon the discovery tllat the person was ineligible for the license under this article. (Ord. 1371, passed 5-11-98) Penalt. ,~ see ~ 5.313 § 5.306 PROHISITED SALES. It shall be a violation of this article for any person, or employee or responsible party, to se11 or offer to sell any tobacco, tobacco product, or tobacco related device: (A) To any person under the age of 18 years. (B) By means oi~ any type of vendiilg machine. (C) By ineans of self-service inethods whereby the customer does not need to a i7lake a verbal or written request to a.n employee of the licensed premise in order to receive the tobaceo, tobacco product, or tobacco related device and whei-eby there is not a physical exchange of the tobacco, tobacco product, or tobacco related _device between the licensee, or tlle licensee's employee, and the customer. Tlus division shall not apply to retail stores which derivc at lcast 90% of their rcvenue from tobacco and tobacco related products and which cannot be entered at any time by persons younger than 18 years of age. (D) By means of loosies as defined in § 5.302. (E) Containing opiwn, morphine, jimpsc~n weed, bella donna, strychnos, cocaine, marijuana, or other deleterious, hallueinogenic, toxic or controlled substances except nicotine and other substances foand naturally in tobacco or added as part of an ot~herwise lawful manufacturing process. It is not the intention of this provision to ban the sale of lawfully manufactured cigarettes or other tobacco products. (F) By means of tobacco samples intended to be smoked within the con~nes of a smoke shop. Tobacco sampling shali be prohibited in all Smoke Shops. (-~ (G) By any other means, to any other person, or in any other manner or fon~7 prohibited by fedei-al, state or other local law, ordinance provision, or other regillation. (Ord. 1371, passed 5-11-98; Am. Ord. 1513, passed 9-25-06) Penalty, see ~ 5313 § 5.30'7 VENDING MACHINES. It shall be unlawful for ~u1y pez•son licensed under this article to allow the sale of tobacco, tobacco prodtiicts, or tobaeco related deviees by the means of a vending machine. This section does not apply to vending rnachines in facilities that eannot be entered at any time by persons younger than 18 years of age. (Ord. 1371, passed 5-11-98; ~m. Ord. 1513, passed 9-25-06) Fcn~l~tv, see ~ 5.313 § 5.308 SELF-SERVICE SALES. It shall be u171awful for a licellsee Llnder this article to allow the sale of tobacco, tobacco products, or tobacco related devices by any ineans where by the customer may have access to such items without having to request the itenl from the licensee or the licensee's empl~yee and whereby there is not a physical exchange of the tobacco, tobacco product, or the tobacco related device between the lieensee or his clerk and the customer. All tobacco, tobacco products, and tobacco related devices shall either be stored behind a eounter or other area not freely accessible to customers, or in a case or other storage usut not left open and accessible to the general public. Any retailer selling tobaceo, tobaeco prodtiicts, or tobacco related devices at the time this article is adopted shall comply with this section within 90 days following the ef~ective date of this article. This section shall izot apply to retail stores wllich derive at least 80% of their revenue from tobacco and tobacco related products and which camzot be entered at any time by persons younger than 18 years of age. (Ord. 1371, passed 5-11-98; Am. Ord. 1513, passed 9-25-06) Penaltv, see ~ 5.313 § 5.309 LICENSE HOLDER RESPONSIBILITY. (A) It shall be the license holder's responsibility to provide training to any employee conducting tobacco sales and/or sales of tobacco related products and device5 and to document prooY of sueh trai~iing to be provided upon request by any enforcing agent of the city. (Ord. 1371, passed 5-I 1-98) Penalt~see ~ 5.313 § 5.310 COMPLIANCE CHECKS AND INSPECTIONS. All lieensed premises shall be open to inspection by the city pc~lice or other authorized city official during regular busii~ess hours. From time to time, btiit at least once per year, the city shall conduct compliance clieclcs by enga~ing, with the written col7sent of their parents or ~uardians, ininors over the age of 15 years bLtt less than 18 years to ei~ter the licensed pre~mise to attenlpt to piirchase tobacco, tobacco prodncts, or tobacco related devices. Minors used for tl~e purpose of compliance checks shall be supervised by city designated law enforcenlellt officers or other designated city personnel. Minors used for compliance checks shall not be gliilty of uiilawful possession of tobacco, tobacco products, or tobacco related devices when such items are obtained as a pai-t of the compliance check. No nlulor used in coinpliance checks shall attelnpt to use a false identification misrepresenting the minor's age, and all min~rs lawfully engaged in a con7pliance check shall answer all questions about the minor's age asked by the licensee or his employee and shall produce any identifieation, if any exists, for which he is asked. Notlung in tl~is section shall prohibit eompliance checks authorized by state or federal laws for educational, research, ar training purposes, or required for the enforcement of a particular stat~e or federal 1aw. (Ord. 1371, passed 5-11-98) Penalty, see ~ 5.313 § 5.311 OTHER ILLEGAL ACTS. Unless otherwise providecl, the following acts sha11 be ~ violation of this article: (A) Illegcrl sales. It shall be a violation of this article for any person to sell or otherwise provide any tobacco, tobaccc~ product, or tobacco related device to any minor. (B) Illegcrl po.ssesszor~. It shali be a violation of this article for any minor to have in his possession any tobacco, tobaceo product, or tobacco related device. This division (B) shall not apply to minors lawfully involved in a compliance check. (C) Illegczl use. It shall be a violation of this article for any minor to sinolce, chew, sniff or otherwise Llse any tobaeco, tobacco product, or tobacco related deviee. (D) Illegal procur~~nei~t. It shall be a violatic~n of this article for any minor to purchase or attempt to purchase or otherwise obtain any tobaeco, tobacco product or tobacco related device, and it shall be a violation of this article lor any persol~ to ptiirchase or otherwise obtain such items on behalf of a minor. It shall fiirther be a violation for any person to sell or otherwise provide any tobacco, tobacco product, or tobacco related device to any minor, and it sha11 further be a violation to coerce or attempt to coerce a minor to illegally purchase or otherwise obtain or use any tobacco, tobacco product, or tobacco related device. This division shall not apply to minors lawfully invc~lved in a compliance checlc. (E) Use of false id~ntification. lt shall be a violation of this article for any minor to attempt to disguise his h-ue age by the iise of a~talse forin of identificatioil, whether the identification is that of another person or one on which the a~e of the persoil has becn inodified or tampered with to represent an age older than the actual age o~t the person. (F) Smoking inside a public building. It shall be a violation of this article for any person to smoke or sample a tobacco product inside a smoke shop or other retail establishment that selis tobacco or tobacco-related products. (Ord. 1371, passed 5-ll-98) Yenaltv, s~e ~ 5.313 § 5.312 EXCEPTIONS AND DEFENSES. Nothing in this article sha11 prevent the providing of tobacco, tobaceo prodlicts, or tobacco related devices to a nlinor as part of~ a lawftilly recognized religious, spiritual, or culh.iral ceremony. It shall be an affirmative defense to the violation of this article for a person to l~ave reasonably relied on proc~f of age as described by state law. (Ord. 1371, passed 5-I 1-98) § 5.313 VIOLATIONS AND PENALTY. (A) Violatzons. (1) Notice. LJpon discovely of a siispected violation, the alleged violator shall be issued, either personally or by mail, a citation that sets forth the alleged violation and which shall inform the alleged violator of his right to be heard on the accusation. (2) Hearings. If a person accused of violating this article so requests, a hearing shall be scheduled, the time and place ol which shall be published and provided to the accused violator. (3) Hearirzg Office~•. The City Cc~uncil, or representative designated by the City Council, shall serve as the heai°ing of'ficer. (4) Decision. If the hearing officer determines that a violation of this article did occur, that decision, along with the hearing officers reasons for finding a violation and the penalty to be imposed lmder division (B) of this section, sha11 be recorded in writing, a copy of which shall be provided to the accused violator. Likewise, if the hearing officer finds that no violation occurred or finds gi•ounds for not ilnposing any penalty, sucll findings shall be recorded and a copy provided to the acquitted accused violator. (5) ~Ippeals. Appeals of any decision made by the hearing o~cer shall be iiled in the district court for the citv in which the alleged violation occurred. (6) Misderyieanor prosecutzon. Nothing in this section shall prohibit the city from seeking prosecLition as a inisdemeanor for any alleged violation of this article. (7) C'ontznuecl violation. Each violation, and every day in which a violation occurs oi° continues, shall constitute a se~~arate oflense. (B) Adminzstrcztive p~nalties. (1) Lzcensees. Any licensee found to have violated this article, or whose employee shall I~ave violatecl this article, shall be charged an adnlinistrative fine of $75 for a tirst violation of this article; $200 for a second offense at the same licensed premises within a 24-month period; and $250 for a third or subsequent offense at the same location within a 24-month period. In addition, after the third offense, the licellse shall be suspended for not less than seven days. (2) Other individasals. Othei° individLlals, other than minors regulated by division (B)(3) of this sectioil, folmd to be in violation of ~his article shall be charged an administrative fee of $50. (3) Mi»o~°s. Minors found in unlawful possession of or who unlawfully purchase or attempt to purchase, t~bacco, tobacco products, or tobacco related deviees, shall be subject to an adlninistrative tine, or may be subject to tobacco related edueatic~n classes, diversion programs, community services, or another pellalty that the city believes will be appropriate and effective. Such admii~istrative fine or other penalty shall be established by City Council ordinance upon the City Council's consultation with interested parties of the courts, educators, parents and children to determine an appropriate penalty for minors in the city. (4) Misclenzeuno~°. Nothing in this section shall prohibit the city from seeking prosecutioll as a inisdemeanor for any violation of this article. (Ord. 1371, passed 5-I 1-98)