Loading...
HomeMy WebLinkAbout11-04-2020 Planning Commission Packet Planning Commission Meeting November 4, 2020 6:00 p.m. Columbia Heights City Hall 590 40th Avenue NE Columbia Heights, MN 55421 November 4, 2020 Planning Commission Agenda 1. Call to Order and Roll Call 2. Approve Minutes a. Approval of September 1, 2020 Planning Commission meeting minutes. 3. Public Hearing a. Variance Application Property Owner, Ivan Barbecho 1329 41st Ave NE. 4. Other Business a. Reminder: Planning Commission meeting Tuesday, December 1, 2020, 6:00 p.m. 7. Adjourn MINUTES OF PLANNING COMMISSION September 1, 2020 6:00 PM The meeting was called to order at 6:02pm by Chair Fiorendino. Commission Members present- Sahnow, Novitsky, Hoium, Kaiser, Schill, Vargas, and Fiorendino. Also present were Aaron Chirpich (Community Development Director), Elizabeth Hammond (City Planner), Christy Bennett (Secretary), Connie Buesgens (Council Liaison), and Jim Hoeft (City attorney). APPROVAL OF MINUTES Motion by Novitsky, seconded by Hoium, to approve the minutes from the meeting of June 2, 2020. All ayes. MOTION PASSED. PUBLIC HEARINGS CASE NUMBER: 2020-0901 TO: Board of Appeals and Adjustments (Planning Commision) APPLICANT: Harry Frankman, Attorney on behalf of Jeff Bahe and Robert Williams LOCATION: 683 39th Ave NE REQUEST: Appeal City Council decision, Resolution No. 2020-54 INTRODUCTION The Planning Commission serves as the City’s Board of Appeals and Adjustments. Please see the duties of the Board of Appeals and Adjustments and the appeals procedure outlined below. City Zoning Code Chapter 9 .104 (B) (4) (c) - Board of Appeals and Adjustment duties: In accordance with M.S. § 462.354, as it may be amended from time to time, the City Council has designated the Planning Commission as the Board of Appeals and Adjustments. As such, the Planning Commission shall have the following additional responsibilities: (1) Hear and make decisions on all applications for an appeal of any administrative order, requirement, determination or final decision made by the Zoning Administrator or other official in the administration of this article. City Zoning Code Chapter 9 .104 (E) - Appeals Procedure: (1) Right of appeal. At any time within 30 days after a written order, requirement, determination or final decision has been made by the Zoning Administrator or other official in interpreting or applying this article, except for actions taken in connection with prosecutions for violations thereof, the applicant or any other person affected by such action may appeal the decision. (2) Application for appeal. An appeal must be made by filing a written notice of appeal addressed to the Zoning Administrator and Planning Commission, and stating the action appealed as well as the specific grounds upon which the appeal is made. Planning Commission Minutes Page 2 (3) Public hearing. The Planning Commission, sitting as the Board of Appeals and Adjustments, shall hold a public hearing on the appeal in accordance with the requirements of this section. After the close of the hearing, the Planning Commission shall render its findings. BACKGROUND At this time, Harry Frankman, Attorney for Jeff Bahe and Robert Williams has filed an Appeal of City Council Resolution No. 2020-54, approved by the City Council at the July 13, 2020 City Council meeting. The resolution revoked a Conditional Use Permit to allow for outdoor storage of vehicles for the property located at 683 39th Ave NE. The meeting minutes from the July 13, 2020 City Council meeting were included in the agenda packets. This Appeal is in response to a written order sent to the property owner on July 16, 2020, also provided, which claims that the property is not in violation of the conditions of the permit, and that the City did not provide a reasonable time period to comply with the alleged violations of the Conditional Use Permit. The Conditional Use Permit was approved in 2006. Staff provided members a copy of the meeting minutes from the Planning Commission and City Council meetings that took place in 2006 when the Conditional Use Permit was discussed and approved by the City. ZONING ORDINANCE The subject property located at 683 39th Ave. NE. is located in the Industrial Zoning District as are the properties to the south, east and west. The properties to the north are located in the Public and Open Space District. COMPREHENSIVE PLAN The Comprehensive Plan designates this area for Industrial uses. FINDINGS OF FACT There are no Findings of Fact specifically outlined in the City’s Code, which must be met in order to approve an Appeal. The Board of Appeals has the authority to make a ruling on the request based on the evidence presented by the applicant. However, the Board of Appeals must make findings when approving or denying the request. Hoeft explained in the case of an Appeal, staff does not make a recommendation to the Board of Appeals. It is up to the Board to make a determination on the request. The Board of Appeals must make a motion to deny or approve the appeal. There is no Resolution document to approve or sign; rather a letter will be sent to the applicant following the meeting, stating the Board’s finding. Hoeft said that some cities have a Board of Appeals and some do not. In the case of a city that doesn’t, the process is to ask the District Court to review the Council’s decision. The District Court would be guided by certain principles in reviewing that decision. The standard that the District Court would use is an Arbitrary and Capricious standard, which means that the Court would have to find that the Council’s action was arbitrary and capricious and the decision was not supported by the information in the record. Columbia Heights is a city that does have a Board of Appeals, so it does not go right to the District Court, but to this body first. This body should use the same Arbitrary and Capricious standard as the Court would use in reviewing the decision. The Board of Appeals has before them the record from the Council meeting. That is the record; there should not be new information or testimony introduced from the City or from the appealing party to supplement that record. The Board of Appeals can ask questions if they have them, but a re-hearing is not the point by this body. The Board of Appeals should be looking at what was already heard and then make a determination. For the Arbitrary and Capricious standard, you are not trying to decide whether the Council was right or wrong or whether you agree or disagree with what the Council decided, but whether there is evidence in the information presented to the Council that supports the Council’s determination. In regards to proceedings, there were Planning Commission Minutes Page 3 pictures that were handed out to the council on the evening of the hearing. According to Staff, these were not included in the packets; the reason they were handed out at the Council meeting was due to video not working that evening. The pictures were not handed out in the packets, because they are going to be shown with video. As long as the photographs were presented at the Council meeting, they can be shown in a different medium at this meeting. As far as starting the proceedings, the body should decide if they have any questions, open a discussion, and fill in from there. Public Hearing Opened John Morphew said that he is appearing as co-council along with Leland and Harry Frankman on behalf of Jeff’s Bobby & Steve’s Auto World for the appeal hearing they requested regarding the revocation of their Conditional Use Permit (CUP) for their property at 683 39th Ave NE. Morphew said that he will attempt to explain the reasons why the decision rendered by the City Council to revoke the CUP was an arbitrary and capricious decision, along with sharing some procedural arguments. Morphew said that at the July 13th City Council meeting, there was discussion regarding the Notice of Violation that was provided to Jeff Bahe and Robert Williams. Looking at City Code, any Notice of Violation has to be in writing and there are 5 requirements it has to meet in order to be valid: 1) It has to identify the property in question. -Morphew said that they do not dispute that the June 17th letter did identify the property in question. 2) It has to identify the nature of the violation(s) of the Conditional Use Permit. -Morphew said the letter does not specify or identify any conditions that Mr. Bahe was violating in his use of the property. It also does not identify the nature of any of the alleged violations. It is a fairly generic letter that says that there is no outside storage allowed on the property and that there will be a hearing on July 13th by the City Council to revoke the Condition Use Permit. 3) It must order the action(s) necessary to remedy the violations that are identified in the letter. -Morphew said the letter clearly did not inform Mr. Bahe of any steps he could take to remedy any of the alleged violations, because it didn’t identify any of the violations. It was only at the July 13th City Council meeting that the violations were raised as an issue. 4) The Notice of Violation has to provide a reasonable time period for the holder of the Conditional Use Permit to act to remedy the alleged violations. -Morphew said the June 17th letter did not inform Mr. Bahe of the time period he had to remedy the violations. It simply stated that there would be a hearing on July 13th before the City Council revoking the Conditional Use Permit. There were 26 days between the letter and the City Council meeting to revoke the CUP. This was not a sufficiently reasonable time period to resolve any of the alleged violations of the CUP, especially when there were no emergency or exigent circumstances justifying the revocation of the CUP. The property had consistently been used for the same purposes since 2006, so there was no emergency justifying 26 days. Morphew also wanted to note that given the state of affairs related to the ongoing Covid pandemic, 26 days to remedy violations would not be sufficient. Looking July 13th hearing of the City Council meeting to revoke the CUP, Ms. Hammond stated that the City was willing to work with property owners that are willing to work with City in resolving any CUP compliance issues. At that meeting, Hammond noted that the City had given Moreno Towing 60 days to get in compliance with their Conditional Use Permit, but no such opportunity was given to Mr. Bahe. 5) The Notice of Violation is supposed to be issued in the name of the Zoning Administrator. -Morphew said if you look at the letter, it says the Notice of Violation was issued by Elizabeth Hammond, identified as the City Planner and not the Zoning Administrator. The City’s website Planning Commission Minutes Page 4 also identifies Hammond as the City Planner and not the Zoning Administrator. On the video for the July 13th City Council meeting, she is also identified as the City Planner and not the Zoning Administrator. Morphew stated that under the City’s own code, the Notice of Violation sent to Mr. Bahe on June 17th only met 1 of the 5 requirements. If Mr. Bahe has to strictly comply with the City Code in regards to the use of his property and the CUP, the City also has to strictly comply with its own requirements in regards to the revocation of the CUP. Morphew said their position is that the Notice of Violation was invalid, and the City Council had no authority to revoke the CUP on July 13th based on that Notice of Violation. Therefore, on that procedural ground alone, they would ask that the Board of Appeals reverse the decision of the City Council ruling revoking the CUP. Mophew said in regards to the reasons/factual basis given for revocation of the CUP at the meeting on July 13th, he wanted to give an overview. On the July 16th final notice of revocation that was issued by the City 3 days after the City Council meeting, it states that the property cannot be used for outdoor storage. If you look at the language of the CUP, it clearly states that the property could be used for outdoor storage, as long as the 11 conditions were met. At the July 13th City Council meeting, there was a lot of discussion about whether the property could be used for storage of towed cars and as an impound lot. If you look at the CUP, there is nothing that prohibits the use of the property for the storage of towed cars. Mr. Hoeft, the City attorney, stated at that City Council meeting that there were no specific conditions within the CUP that prohibited the use of the property for an impound lot and that it was limited to only the repair of overflow vehicles from the shop. Looking at the January 3rd, 2006 Planning & Zoning Commission meeting in which Mr. Bahe submitted the initial application for the CUP, Bahe stated at that meeting that his business is towing for the MN State Patrol and that cars would be stowed on the lot for an indefinite period of time. In the 2010 towing contract between the City and Mr. Bahe, it indicates that Mr. Bahe would use the 3 lots within the city for storage of the vehicles he towed on behalf of the City. This would be the triangle piece behind the shop, the 39th Ave property, and the 37th Ave property. In July 9, 2012 City Council meeting, when City Council authorized entering into another towing contract with Mr. Bahe, it was for the towing, impounding and storage of towed vehicles on behalf of the City. Morphew states that the City clearly was aware that the lot would be used for the storage of towed vehicles. Morphew said that additionally, he wanted to note that Mr Bahe did come into compliance with the requirements of the CUP prior to the July 13th City Council meeting. The lot was cleared prior to the meeting. According to City code, the only way a CUP that is compliant with its requirements can be revoked is if the use has been discontinued for a period of more than 1 year. Since the use of the property has not been discontinued for a period of at least one year and Mr. Bahe is in compliance with the conditions of the CUP, it is their position that the City acted arbitrarily and capriciously in revoking the CUP at the July 14th City Council meeting. As for the specific conditions themselves, for several of them, there is no factual basis in the record to support the City Council’s decision and even if there were certain ones with a factual basis, the decision in regards to the screening was arbitrary and capricious. The first condition that they allegedly violated was the setback requirements. Neither Ms. Hammond nor anyone else from the City, presented evidence at the City Council meeting demonstrating that the stored vehicles were not within the setback requirements. There were no measurements or photographic evidence presented that showed they did not meet the setback requirements. Ms. Hammond only presented her own anecdotal opinion that the stored vehicles were now within the required setbacks. According to Mr. Bahe all of the vehicles were stored within the fence line and the City had previously approved where the fences were located in order to meet the applicable setback requirements for that particular property. There is no factual basis to support they were not meeting setbacks. Planning Commission Minutes Page 5 Morphew said next was condition number 4, that the vehicles must be currently licensed and insured. Morphew said that once again, at the City Council meeting, there was no factual basis provided for the revocation of the CUP based on this condition. At the July 3rd City Council meeting, Ms. Hammond stated that there was no proof that the vehicles stored at the lot were not licensed and insured. The City’s towing contract with Mr. Bahe allowed storage of impounded vehicles that had no license plates on the property. All the vehicles were insured by Mr. Bahe, as he testified, because his insurance has a special rider that covers vehicles stored on the property. The vehicles were also removed prior to the July 13th meeting, so he complied with the requirements before that meeting, so there was no basis to revoke the CUP based on this condition. Morphew said the next condition was number 6, which requires a hard surface parking lot with a grading and drainage plan approved by the City engineer. Morphew said that once again, their position is that there is no factual basis for the revocation of the CUP based upon this condition. As Mr. Bahe and the record reflect, the lot is a hard surface impervious lot that is tarred. At the July 13th City Council meeting, Ms. Hammond stated that the City could not find a drainage and grading plan on file. Morphew said this doesn’t mean that one was never submitted or approved, only that the City can no longer locate it. The CUP was issued in 2006, 14 years ago, so it’s not inconceivable that the City simply can’t find it. Morphew said the City needs to come up with more than saying they don’t think one was submitted to use as a basis to revoke the CUP. There has to be some sort of evidence to support this condition. Morphew said that at the City Council meeting, Mr. Hoeft stated that the lot was paved with a hard surface and that he also didn’t know if there was a grading and drainage plan approved by the City engineer. Moprhew said that if you are going to revoke a protected property right such as a CUP, it needs to be more than, “we believe this to be the case”. It has to be based upon factual evidence. There is nothing presented by the City showing this was never done. Morphew said the lot was paved by their client; he would have had to submit a plan to get a permit to get it paved. Morphew said that the City wouldn’t have allowed them to pave it without a permit, so it is their position this body must not support the decision of City Council, because you can’t revoke a CUP when there is no evidence on record demonstrating Mr. Bahe’s alleged failure to comply with this condition. Morphew said the next condition is number 7, which is related to fencing and screening. In record, there is no dispute that there is a 6 ft high wooden privacy fence on the north line of the property. There is also no dispute that the fence on the east line of the property meets the applicable fencing and screening requirements. Ms. Hammond conceited that at the July13th City Council meeting. There’s also no dispute that there is screening on the fence on the south line of the property. There was only some question raised about whether or not it meets City code. There is screening on the fence, it’s just a question of if it meets City code. Morphew said he doesn’t think that there was any evidence presented by the City that that type of screening, purchased from a fence company, doesn’t meet City code. Morphew said that this also means that 2 of the fences meet the requirements of the CUP and the 3rd fence does have screening on it. Morphew said, therefore, it is their position that it was arbitrary and capricious of the City Council to revoke the CUP based upon this condition, especially when Mr. Bahe prior to the revocation hearing, was not informed as to why this screening was insufficient and was not given an opportunity to remedy this violation. Mophew said that he thinks it is doubtful if we went around the City, that every fence that is required to have screening would have screening that meets all the City code requirements. Morphew said the final condition that they allegedly violated was condition number 8, that storage of the vehicles must be done in an orderly fashion. Morphew said once again, it is their position that there is no factual basis to support the revocation of the CUP based on this condition at the City Council meeting. At that meeting. Ms. Hammond stated that it appeared that the vehicles were not stored in an orderly fashion, but she did not provide any inspection reports, or photographic evidence to demonstrate that the vehicles were stored haphazardly. If the City cannot prove the vehicles were not stored in an orderly manner, they should have inspected the site with Mr. Bahe and informed him of how he could store the vehicles so he could be in Planning Commission Minutes Page 6 compliance with the CUP. Mophew said that Mr. Bahe also cleared the lot prior to the City Council meeting, so he was, once again, in compliance with the CUP on this condition. Morphew said, not only was the notice of violation procedurally defective, of the conditions they were allegedly violating, there is no factual basis on record at that July 13th City Council meeting to support the City Council’s decision to revoke the CUP. The condition where there is maybe a factual basis (which they aren’t conceding is the case), it’s only 1 of the 3 fences that was maybe not in compliance, which is the definition of arbitrary and capricious. Morphew said he thinks it is obvious that the property is being singled out, especially when Moreno towing was given 60 days to get in compliance with their CUP. That is evidence of the arbitrary and capricious nature of the decision of the City Council to revoke the CUP. Morphew said that it is their position that based upon these reasons; they request that this board reverse the decision of the City Council revoking the CUP. As an alternative, they would request that the City perform a re- inspection of the property to determine if there are any ongoing violations of the CUP and if there are any such violations, the City inform Mr. Bahe of steps he needs to take to remedy those violations within a reasonable period of time. Commission member questions: Novitsky said in 2006, it was stated that it would only be used for maintenance facility overflow for vehicles, correct? Morphew said that was part of it. Novitsky said that was part of the CUP, correct? Morphew said that was one of the ways it was going to be used. Novistky said, that was the way it was supposed to be used. Morphew said there is nothing in the CUP that says it has to be limited to overflow. Morphew said, as he mentioned at the Planning and Zoning meeting in 2006, Mr. Bahe did note that it was going to be used for towing and storage for an indefinite amount of time. Novitsky said he did not believe that was correct. Morphew said that he can go back and look at the minutes for that particular meeting, which was January 3, 2006. Morphew said, even if it was, if that was the City’s position, they should have limited it within the agreement, but it’s not in the CUP. Fiorendino asked if it is their position that all of the cars stored there were licensed and insured. Morphew said no, there is some question. They were covered by insurance, that he doesn’t think is in dispute, and he thinks that Mr. Bahe did testify that some of them didn’t have plates. That is the nature of some of the items that were towed. Fiorendino asked if they are saying that they were not in compliance with that condition. Morphew said they could have been licensed. Fiorendino asked if it is his position that they were licensed. Morphew said Mr. Bahe testified that there were cars with no plates. Morphew said he’s not providing testimony, just reflecting what Mr. Bahe said. Fiorendino said he is asking what Morphew’s position is. Fiorendino said that evidence was presented to the City Council that some of the cars were not licensed. Morphew said, correct, and they were removed. Firorendino said, clearly they were in violation. Morphew said if there was some evidence that was introduced, but there was no evidence introduced at the City Council meeting. Fiorendino said Mr. Bahe’s testimony was introduced, that was very clear. Morphew said, even if it was, they were cleared. Fiorendino said he understood, but was asking a technical question. Morphew said that yes, there were unlicensed cars in the lot. Novitsky said that in the video of the July 13th City Council meeting, Mr. Bahe admitted that it was going to be used as an overflow lot, but that it ended turning into a towing/impound lot. He said that Mr. Bahe admitted multiple times that it was not in compliance at that time. Morphew said he doesn’t recall Mr. Bahe saying that he changed the use of the lot or that overflow would be the only use of the property. Morphew said that the City’s own attorney says that the CUP isn’t limited to only that particular use. Planning Commission Minutes Page 7 Schill said at the City Council meeting, one of the questions asked was how many citations have been made between now and 2006 for non-compliance. The answer was none for inside, but perhaps some for outside. Schill was wondering if there is a chance to clarify that for the outside. Morphew said it was possible there were some for outside, maybe for parking, but he didn’t think it was one of the conditions for the CUP being revoked. Schill asked again if there were no citations inside, but perhaps some for outside. Morphew said yeah, but he didn’t think it was one of the reasons given for the CUP. Vargas asked if in 2010 when the City signed the contract and in 2012 when the City authorized the new contract, did the City know that the cars would be parked in this lot? Did the City review the CUP to ensure that the lot was in compliance with the storage and towing of vehicles? Novitsky asked if the City assumed cars would be stored in the 37th Ave lot. Morphew said he doesn’t know if the City knew or not at that particular time. Morphew said all he knows is what is in the documents, towing and storage and the 3 lots within the City will be used. Novitsky asked if the City knew that the 37th Ave lot was being used for towing. Fiorendino requested that this question be held until Staff was up to speak, as this is a question for the City attorney. Vargas said that the letter of notification of the July13th meeting says a compliance inspection will occur on or after July 24th, 2020. Did that inspection actually happen on July 24th? Fiorendino said that this question could be asked of City Staff when they are up. Leland Frankman (900 IDS Center) said that if Mr. Hoeft is going to have a rebuttal, then he would like to make a few points after the rebuttal. Fiorendino said he didn’t know the rules, but he doesn’t object to that. Fiorendino asked if any of the commissioners objected to this and none did. Fiorendino asked if anyone from the public had anything to say. There were no comments. Fiorendino said the Commissioners did have some questions for Staff at this time. Vargas asked if the July 24th compliance inspection was done. Hammond said that it was done. Vargas asked if there was compliance at that time. Hammond said that on that day, she drove by there in the morning and all the vehicles had been removed. Vargas said that there have been some pretty significant changes to what qualifies as a drainage plan since 2005/6 when the CUP was issued. Has this ever been addressed? Was this looked at when the CUP was issued and what the changes in requirements have been since then? Hammond said as far as the pavement, she can’t speak to that as she was not there at that time and that there is no record on file anywhere showing they submitted a plan. Vargas asked if the City requires a permit for paving driveways or lots? Hammond said it depends on the situation. If an existing parking lot is being resurfaced, then in most situations no, unless more than an acre is being disturbed. If it is a new parking lot, then a review of plans is required. Depending on the size of the lot, storm water management has requirements if it is over an acre. In this situation, we don’t have a plan on file, so she doesn’t know if a plan was ever reviewed. Hoeft said before Staff sits back down, the Commission as the Board of Appeals has not been provided with the photos that were handed out at the City Council meeting. The only way they are able to be presented this evening is on video. If there are any questions about those photos, this is the time to take a look at them. Fiorendino said he thinks that it is important to look at them, as the applicant has questioned whether there was evidence submitted. Fiorendino said, if there’s no objection, they should do that now. Hammond explained that the photos being shown were taken approximately 1:30pm on the afternoon of July 13th, the day the revocation hearing, which was held at 7pm. A retired police officer who still works part-time Planning Commission Minutes Page 8 went out on site to take the photos, to see if they had complied with the conditions of the CUP by the date of the hearing. Hammond said that approximately half of the vehicles had been removed as of 1:30pm. When the police officer went there, he met with a gentleman that was there working on removing the vehicles. Hammond said that the City sent out a notice after the July 13th City Council meeting. The notice was sent saying that the Conditional Use Permit had been revoked and that all the remaining vehicles needed to be removed. The City gave them additional time to remove the vehicles; the date given in the letter was July 24th. On Friday, July 24th, the City went out to the lot again and the vehicles were removed. Hoeft said he thinks the most compelling information that was in front of the City Council was some of the photos that were seen here again tonight, but don’t forget that statements by staff based upon their observations of the property is their testimony at the meeting. The Council has to determine the Staff’s credibility. It is still information that the Council can take into consideration. The photos that were handed out to the Council and shown this evening show several violations. Remember that the violations are not a cumulative process. One violation can be adequate for the Council’s consideration. The photos showed that the property was non-paved, they showed that there were no plates on a number of vehicles that were left on the property, and they showed setback violations of vehicles parked right up to the adjacent building. Hoeft said he thinks there was ample evidence for the Council to take into consideration. Hoeft said that whether the Commission members agree or disagree with the Council’s decision, he thinks there was a rational basis for their decision. Frankman said that we don’t know when the photos were taken of the cars in the lot, but it is his client Mr. Bahe’s testimony that on July 13th, when the revocation was made, that all of the cars were removed. Frankman said his client assumes the photos were taken on another day, maybe the Friday before the meeting. Harry Frankman (900 IDS Center) said that the point that Leland Frankman was trying to make was that the inspection was on July 24th. Fiorendino said this was the compliance inspection, correct? Harry Frankman said yes, but that they revoked the CUP on July 13th. How do you have an inspection after revoking? Fiorendino said that he is talking about things that happened after the City Council meeting, which are not relevant as to whether the City Council made an arbitrary and capricious decision in revoking the CUP on July 13th. Harry Frankman says that if the City Council knows on July 13th, because the letter was from before July 13th, that there is going to be a compliance inspection on July 24th, what does it matter, if you are doing a compliance inspection once you revoke the permit. Fiorendino said he wanted to understand Harry Frankman’s point, that because the City Council said there would be a compliance inspection on July 24th to see if they are in compliance with the City ordinance, that the vehicles needed to be removed. Harry Frankman said that they went ahead and revoked the CUP on July 13th. Fiorendino said this is why they would have had an inspection, to see if they are complying with the lack of a Conditional Use Permit. If they do not have a Conditional Use Permit, the City is within their rights to inspect to see if there are vehicles parked there. Fiorendino said that it certainly seems reasonable to have an inspection after someone has been ordered to do something. Harry Frankman said that the notice was given before July 13th, that his client was in violation of the code, before the City took the permit. Fiorendino said that this is a different topic and he isn’t sure what Harry Frankman was arguing now. Leland Frankman said he wanted to make an argument after watching the video of the July 13th City Council meeting, that the whole procedure is off on the wrong foot. This is a big deal for his client, which is why there are 3 lawyers there for the appeal. This is a big business for them and a big deal. Leland Frankman said he wanted to make 3 procedural points. On January 6th, 2006 his clients came before the City Council to get a CUP and his client testified that they wanted it for vehicles that they are repairing, but they also said that they are towing for the State Patrol and cars will stay there for an indefinite period. Planning Commission Minutes Page 9 When the City Council gave the 11 point CUP, they gave a generic #4. They could have said that you are restricted to only overflow vehicles from the repair shop. They didn’t, because they had heard that he was towing. Novitsky asked how we know they had heard that. Leland Frankman said it’s in the minutes and he didn’t think we needed to spend anymore time discussing it, because he read the minutes and Mr. Novitsky will read the minutes and he will see that it is in there. Leland Frankman said they didn’t lie to anybody. Fiorendino asked if point #4 Leland Frankman was talking about is that all vehicles stored on the premises shall be currently licensed and insured? Leland Frankman confirmed this is the point he was talking about. Frankman said the Council gave a generic condition. Leland Frankman said he has been a lawyer for 54 years and he has learned from the first day in law school that we are a government of laws not of men and when he reads #4, it says they can store vehicles outdoors. It doesn’t say anything about not having an impound lot or that he can’t tow. Novitsky said it doesn’t say they can, either. Fiorendino said #4 says only says that they need to be licensed and insured. Leland Frankman said they were insured, some were not licensed. Leland Frankman said his client told him many of them were licensed and the ones that weren’t licensed could be; a dealer plate could be put on them. The City could have said they didn’t like that one and that they needed to put some dealer plates on it. That could have very well been remedied. Leland Frankman said that he read the minutes of the July 9th, 2012 City Council decision. Mr. Hoeft was there. They were talking about 3 lots, one of them being the 39th St lot. The City had made a contract with Auto World in 2010, when they were renting the property, before they bought it, for towing for the City of Columbia Heights and in 2012 they were before the Council to renew that contract. There was some discussion about (Schmitt?) who had been towing for the City, they permitted Schmitt to do towing and have an impound lot. There was a discussion about who bid cheaper and Mr. Hoeft said the City didn’t have to go to the lowest bidder; we like Auto World, they are doing a good job. Fiorendino asked if this was presented to the City Council on July 13th and Leland Frankman said yes. Leland Frankman said that at the City Council, Mr. Novitsky said on the record at the hearing the Police don’t know our zoning codes and you violated this from the beginning in 2006. Leland Frankman said he takes issue with that, but Mr Novitsky probably didn’t remember that in 2012, Frankman’s clients came before the City, with the agreement of the City attorney who blessed it, and made a contract for towing for the City of Columbia Heights. Frankman said he doesn’t know about any change in zoning between 2006 or 2012, all he knows is that somehow now towing is not permitted. Frankman said that to him, that is government by fiat. Frankman said that he is a man of law, not of people just changing it and somehow the City Council or people on it have just decided that there isn’t going to be any towing. The City has made contracts every couple of years with his client from 2010 to January of this year for towing. Now, all of a sudden, it’s not permitted under the zoning code. Fiorendino asked towing is not permitted? Frankman said having an impound lot is not permitted. Fiorendino said having this one lot where they are not allowed to park those vehicles. Frankman said right. Fiorendino asked if the other lots are fine. Frankman said that the City says those are not fine, either and that they are going to court on that and that they will be in court on this too, he presumes, if this Board doesn’t do the right thing. Leland Frankman said that in 2012, in reliance on what the City told them, his client spent, with closing costs, half a million dollars. Fiorendino said that this is drifting away from the City Council decision. Frankman said to look at the record, just look at the record. What his client testified he was going to use the lot for. Look at #4 and the rest of these things that the City Council said are violations in justifying the revocation of the CUP are miniscule things that can be fixed. There is a tarp there that makes the fence look opaque, one of the 3 fences. If the City didn’t like it, they could have fixed it. If the City wanted a drainage plan, fine. They spent $30k on a drainage plan for one of their other lots. Frankman said he’d told the Commissioners that this is an important business for his clients and they’re taking it away from them. If there is anything wrong in the procedure, as his co-council argued, or anything wrong in the facts or anything wrong in fundamental justice; Frankman said he hasn’t seen anything in any of the minutes he’s read back to 2006, no neighbors complaining, no police complaining that there is a lot of theft so they have to spend time chasing down the thieves, no problems that Planning Commission Minutes Page 10 they have caused. He sees this whole thing as wrong, fundamentally flawed and wrong. Frankman said he thinks this is just something that someone at the City has cooked up recently without any changes in zoning or anything else. These small violations of where they are parking and all the rest could have been taken care of if they had been given a chance, like some others were given, they could have fixed it. Frankman thanked the Commissioners. Sahnow said he had a question for Staff. Sahnow said he was looking for a clarification on what the procedure is when a property does have a violation of their CUP. What is the policy as far as these previous violations that happened in the exterior? Does the City have records of those violations and what is the policy of the City as far as fixing any sort of violations of the CUP? Hammond said that in this particular situation, there were past violations from way back when the Conditional Use Permit was first issued, but that was not discussed at the Council meeting, so she can’t speak to those. Hammond said the violations were prior to her time here, but when there is a violation, as in this situation, the City provides notice that their CUP is in violation and then gives them a reasonable time to comply with the conditions of their permit. In this situation, given the date of when the CUP was issued, going from where we’re at in 2020 back to 2006, the City believed they had adequate time to comply with the 11 conditions. Public Hearing Closed Motion by Novitsky, seconded by Schill to deny the appeal made by Harry Frankman, attorney on behalf of Jeff Bahe and Robert Williams for the property located at 683 39th Ave NE based on the following findings: 1. The property is not in compliance with the Conditional Use Permit granted in 2006, by the passage of Resolution No. 2006-02. 2. The City Council held a public hearing on July 13, 2020 on the revocation of the Conditional Use Permit. The owner received notice of the hearing approximately one month prior to the hearing. 3. The property owner has had adequate time, since the year 2006 to comply with the conditions listed on the permit, which is an agreement between the City and the property owner. 4. The property owner did not comply with conditions 1, 4, 6 and 7 stated on the permit on the date of the hearing, and the City Council voted to revoke the permit. 5. The Planning Commission has heard the property owner’s appeal of this decision. Based on all evidence presented, the Board of Appeals finds that the appeal should be denied. OTHER BUSINESS Fiorendino said the next item of business is a reminder that the next Planning Commision meeting is on October 6th, 2020 at 6pm. Fiorendino asked if there is anything on the agenda at this point. Hammond said there is not anything on the agenda at this time. Fiorendino asked when the deadline is and Hammond said it is technically the coming Monday, because the deadline is always the first Monday of every month. Hammond said she would know more next week if there will be a meeting and that she would certainly send out an email to let everybody know. The meeting was adjourned with no objection by Fiorendino at 7:10 pm. Respectfully submitted, Christy Bennett Secretary CITY OF COLUMBIA HEIGHTS PLANNING COMMISSION PLANNING REPORT 1329 41st Ave NE. CASE NUMBER: 2020-1101 DATE: November 4, 2020 TO: Columbia Heights Planning Commission APPLICANT: Ivan Barbecho DEVELOPMENT: Proposed Residential Garage LOCATION: 1329 41st Ave NE (PID 36-30-24-24-0114) REQUEST: Variance to side yard setback and minimum width standard PREPARED BY: Elizabeth Hammond, City Planner INTRODUCTION Ivan Barbecho is requesting a Variance for a proposed accessory structure to be located at 1329 41 St Ave NE. The application and narrative are attached for your consideration. The applicant seeks the following: 1. Variance to allow the accessory structure to be 19.95 feet wide. City Code Section 9.106 (C) (1) (m) requires that “Accessory structures shall be no less than 20 by 20 in size” 2. Variance to allow the garage to be within 0 feet from the property line. City code section 9.109 (C) requires that the minimum required setback is 5 feet (based on the R2A district standards). ZONING ORDINANCE The property is located in the R2A One and Two Family Residential Zoning District, as are the properties to the east and west and south. Properties to the north are located in the R-2B Built as Duplex District. The use of the property as a residential home complies with the Zoning Code. COMPREHENSIVE PLAN The Comprehensive Plan guides this area for residential development. The proposed garage is consistent with the goals and intent of the Comprehensive Plan. DESIGN GUIDELINES This property is not located in a Design Guidelines District. City of Columbia Heights Planning Commission November 4, 2020 Planning Report Page 2 SITE PLAN The applicant has submitted a Certificate of Survey and site pictures, illustrating the proposed location of the garage and relation to the adjacent property lines. FINDINGS OF FACT The City Council shall make each of the following findings before granting a variance from the provisions of this article: (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 practical difficulties in conforming to the zoning ordinance. The applicant, however, is proposing to use the property in a reasonable manner not permitted by the zoning ordinance. This is correct. The shape of the lot and the existing location of the house, cause a practical difficulty in adhering to provisions of the code. The lot gets narrow as it gets closer to the street. The garage will meet the setback requirement farther north about midway on the east side and at the northeast corner, but in order to have the garage meet the side yard setback on the front southeast corner, it would need to be moved farther back to the north and would not line up with the existing house. The existing driveway actually goes over the property line to the east adjacent to an alleyway easement. This is an existing condition not caused by the current owner, and makes it so that access to the property is confined. There is also a significant grade change as you go north on the property, making it impractical to place the garage farther north on the property. (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. This is correct. Due to the topography of this lot, the adjacent alleyway easement, and the existing driveway location and the location of the house, the situation is unique to this parcel. (c) The practical difficulties are caused by the provisions of this article and have not been created by any person currently having a legal interest in the property. This is correct. (d) The granting of the variance is in harmony with the general purpose and intent of the Comprehensive Plan. This is correct. (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. City of Columbia Heights Planning Commission November 4, 2020 Planning Report Page 3 This is correct. The granting of the Variance will result in a new two car garage for the property. I received a call from a neighbor expressing support for the Variance, the improvements the current owners have been making, and for the fact that it will provide a new two car garage on the block and improve the value of the neighborhood. In addition to the phone call, I received an email from a neighbor who supports the project (attached). RECOMMENDATION Staff recommends that the Planning Commission recommend approval to the City Council, of the proposed Variances. Motion: Move to waive the reading of the draft resolution attached. Motion: Move to recommend that the Planning Commission recommend to the City Council approval the Variances for the proposed garage to be located at 1329 41st Ave NE, subject to certain conditions of approval. 1. The applicant will meet the requirements of the Building Official Report dated, October 23, 2020 and obtain a Building Permit for the project prior to starting construction. 2. The applicant will meet the requirements of the Assistant City Engineer Report dated, October 29, 2020. ATTACHMENTS Draft Resolution Application Applicant’s Narrative Pictures Survey and Elevation Drawing Building Official Report dated, October 23, 2020 Assistant City Engineer Report dated, October 29, 2020 Email from Neighbor dated, October 19, 2020 4. Resolution1329 41st Ave NE RESOLUTION NO. ______ A resolution of the City Council for the City of Columbia Heights, Minnesota, approving a Variance for the property located at 1329 41st Ave NE (PID 36-30-24-24-0114) Whereas, a proposal has been submitted by Ivan Barbecho to the City Council requesting Variances from the City of Columbia Heights Zoning Code at the following location: Address: 1329 41st Ave NE (PID 26-30-24-13-0004) The applicant seeks the following relief: 1. Variance to allow the accessory structure to be 19.95 feet wide. City Code Section 9.106 (C) (1) (m) requires that “Accessory structures shall be no less than 20 by 20 in size” 2. Variance to allow the garage to be within 0 feet from the property line. City code section 9.109 (C) requires that the minimum required setback is 5 feet (based on the R2A district standards). Whereas, the Planning Commission held a public hearing as required by the City Zoning Code on November 4, 2020; Whereas, the City Council has considered the advice and recommendations of the Planning Commission regarding the effect of the proposed variances upon the health, safety, and welfare of the community and its Comprehensive Plan, as well as any concern related to traffic, property values, light, air, danger of fire, and risk to public safety, in the surrounding area; Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: FINDINGS OF FACT (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 practical difficulties in conforming to the zoning ordinance. The applicant, however, is proposing to use the property in a reasonable manner not permitted by the zoning ordinance. (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. (c) The practical difficulties are caused by the provisions of this article and have not been created by any person currently having a legal interest in the property. (d) The granting of the variance is in harmony with the general purpose and intent of the Comprehensive Plan. (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. ORDER OF COUNCIL 1. The applicant will meet the requirements of the Building Official Report dated, October 23, 2020 and obtain a Building Permit for the project prior to starting construction. 2. The applicant will meet the requirements of the Assistant City Engineer Report dated, October 29, 2020. City of Columbia Heights - Council Resolution Page 2 Passed this _________ day of ______________________, 2020 Offered by: Seconded by: Roll Call: Donna Schmitt, Mayor Attest: Nicole Tingley, City Clerk/Council Secretary City of Columbia Heights | Community Development 590 40th Avenue NE, Columbia Heights, MN 55421 ▪ Ph: 763-706-3670 ▪ Fax: 763-706-3671 ▪ www.columbiaheightsmn.gov 1329 41st 10/23/2020 Re: 1329 41st Ave. NE, Columbia Heights, MN 55421 Walls and projections less than 5ft from property lines shall be protected with a fire-resistance rating of 1 hour. The plans submitted shall show an assembly that has been tested in accordance with ASTM E119, UL263, or Section 703.3 of the International Building Code with exposure from both sides as required by MSRC Table R302.1(1). If you have any questions please call (763)706-3677. Sincerely, Ryan Smith Building Official City of Columbia Heights | Public Works Department 637 38th Avenue NE, Columbia Heights, MN 55421 Phone: (763) 706-3700 ▪ www.columbiaheightsmn.gov SERVICE IS OUR BUSINESS! MEMORANDUM TO: ELIZABETH HAMMOND, CITY PLANNER FROM: KATHY YOUNG, ASSISSTANT CITY ENGINEER SUBJECT: REQUEST FOR VARIANCE – 1329 41ST AVENUE NE DATE: OCTOBER 29, 2020 The Public Works Department has reviewed the request for a variance to construct a garage abutting the 14’ easement. The City has an 8” water main near the center of the 14’ easement. The main is 7’ to 8’ below existing ground. The Public Works Department concurs with the variance request provided the structure, including footings and eaves, is on private property.