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4.1. BASR 02-27-2001 Item #4_1. • . � City of Elk River MEMORANDUM TO: Board of Adjustments FROM: Michele McPherson, Director of Planning DATE: February 27, 2001 SUBJECT: Case No. V 01-02 Appeal of Zoning Code Interpretation by Clifford Lundberg Request The applicant requests that the Board of Adjustments overturn the zoning code interpretation made by staff regarding reconstruction of a garage in the C1 Central Business District. • Location II 624 4th Street Zoning/Land Use C1 (Central Commercial) / CB (Central Business) Attachments • Location Map • Zoning Map • Photos of the Subject Property • Letter from Clifford Lundberg dated January 9, 2001 • C1 District; Purpose, Permitted and Conditional Uses • Nonconforming Uses • Board of Adjustments Analysis Located on the subject property is a single family residential dwelling. The residential dwelling is used as a rental property and the applicant conducts his business from the office building located at 400 Jackson Avenue. Also located • 13065 Orono Parkway • P.O. Box 490 • Elk River, MN 55330 • TDD & Phone (763) 441-7420 • Fax (763) 441-7425 Memo to Board of AdjustmentsN01-01 February 27,2001 Page 2 • on the property are three accessory structures which provide additional storage and parking for the residential dwelling. The applicant desires to remove the three accessory structures and build a new, larger detached structure. The purpose of the Cl district is to encourage redevelopment of single family and other residential dwellings to uses that are more commercial in nature. This interpretation can be made by reviewing the permitted and conditional uses within the Cl district. The district only allows ass a conditional use, residential dwellings if they are multiple family and there are office or retail uses on the first floor. Therefore, by adoption of the ordinance, all residential dwellings within this district were made nonconforming uses. Referring to Section 900.34 regarding nonconforming uses, the ordinance clearly states that alterations are permitted for maintenance and to improve the livability of residential nonconforming structures. However, the ordinance does not allow expansion of nonconforming residential structures. The ordinance is silent on the issue of nonconforming accessory structures in this district, or any district, for that matter. Staff is charged with the duty of interpreting the zoning code in a manner similar to that of an average person reading the code. The Cl district clearly does not allow residential dwellings accept under special circumstances. The code is silent on residential accessory structures, therefore, staff has interpreted that • constructing a new residential accessory structure would not be allowed as a use in the Cl district and that it would be in violation of the nonconforming portion of the ordinance. The applicant, however, has indicated that his proposed garage would qualify as a parking facility. A parking facility is a permitted accessory use in the Cl district; however, an average person, when reviewing the ordinance would interpret a parking facility to mean a paved parking facility in conjunction with a commercial use. Recommendation This interpretation question leads to a policy decision for the City. If it is the intent to encourage redevelopment of residential uses into commercial uses in the area identified as Cl on the zoning map, then the Board of Adjustments should uphold staffs interpretation and deny the request for construction of new garage on the property. 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Lig ' i or ! , unli::,-,-,..--A _.... ,) , . , , 4. &. \-io Yf. i 4/ri 1 iii HOH Iii.t \ jllIl UPA ' 71 mi„,,,,_. po \ " I 3 a 01) t\ '& 47 ctN II nsTFi0. / A.( N / ZONING City of , �� MAP Elk River 13065 Orono Parkway•P.O.Box 490 CASE: V 01-02 Elk River,MN 55330 CLIFFORD C. LUNDBERG JAN 1 l mg, Attorney At Law Real Estate 400 Jackson Avenue Business Law Probate P. 0. Box 326 Taxes Wills & Trusts Elk River, Minnesota 55330 Accounting Phone: (612) 441-1251 Fax: (612) 441-1258 January 9, 2001 Elk River City Council Elk River City Planning Commission Elk River City Board of Adjustment Elk River City Hall 13065 Orono Parkway Elk River, MN 55330 RE: Permission to Replace Existing Garage at 624 4`'' Street, Elk River, MN Ladies/Gentlemen: I have recently been informed that my property is in a C 1 central business district zone. This particular piece of property is a single family residence as are most of the properties located on the block. This block contains three commercial sites facing Jackson Avenue. I have recently been informed that my residence or use of the property is a nonconforming use Y Y P P and that I will not be permitted to replace my existing garage with a safer, more useful structure. I presently have a single car garage and two storage sheds located on the property. It is my desire to replace those three units with a single three car detached garage. From my review of the zoning ordinances on file with the Elk River Public Library, it appears that off-street parking facilities are a permitted accessory use in a Cl central business district. I also note on page 9.139 of the zoning ordinance that alterations may be made to a residential building containing nonconforming residential units when they improve the livability of such units, provided they do not increase the number of dwelling units in the building. It would appear to me that this clause would apply to an attached garage structure. I see no reason why it should not also apply to a detached garage structure. Even though it is detached a garage is part of a residential building. I believe your ordinances require all residential buildings to have garage facilities associated with them. While I understand the desire of the city planners to designate the corridor along Jackson Avenue from Main Street to School Street as commercial, one has to recognize that that designation has been in place for a number of years and that the present market place does not desire to establish commercial uses along that corridor. You will note that Bud Houlton owns property on the West side of Jackson Avenue, between Jackson Avenue and Lion's Park, and that he has been trying to sell that property for commercial use ever since Lion's Park was built. He has not found any takers for that property to date. At present, the commercial Real Property Law Specialist Certified by the Minnesota State Bar Association use of the property between Jackson Avenue and Irving Avenue, between 41' Street and School Street does not appear to be feasible, due to lack of interest. I do not think it appropriate for the City to attempt to legislate a fact that has no basis in reality. I therefore appeal the decision of the City of Elk River's Planner to not let me replace my existing garage facility. I appeal that decision, and in the alternative I seek a variance due to hardship, or in the alternative, I seek an appropriate amendment of the zoning ordinance changing the zone of my property or changing the zoning ordinance to permit the erection or replacement of garage facilities for nonconforming residential purposes. The erection of a garage facility will in no way extend the use of a nonconforming residential purpose. The use is, in fact, determined by the residential structure itself. No accessory facility can or should be considered an extension of a nonconforming use, nor is it an alteration of a nonconforming use because the use itself remains the same. Respectfully Submitted, C ' rr Cliffor C. Lundberg Landowner • CCL:tld File:office\ERCITYCOUNCIL.let 10. C-1 - Central Business District STATEMENT OF PURPOSE: The Central Business District (CBD) is appropriate for retail, service, and commercial uses to serve the shopping and service needs of the residents and surrounding community as distinguished from highway service uses. The CBD is intended to encourage uses and designs that are consistent with the historic character of the CBD. Emphasis should be placed on pedestrian access and design standards with flexibility to preserve the historic character of the CBD. Uses should be designed to eliminate any nuisance or incompatibility with surrounding uses. A. Permitted Uses i. Governmental, business and professional offices ii. Financial institutions iii. Retail stores and shops iv. Personal service Establishments v. Outpatient health care facilities vi. Hotels 111 vii. Restaurants, (Class I) viii.Public parks ix. Sale of firearms B. Accessory Uses i. Signs as permitted in Section 900.22 ii. Off-street parking facilities iii. Off-street loading facilities iv. Telephone booths v. Private recreational facilities vi. Public shelters and essential services C. Conditional Uses i. Nonprofit clubs, lodges or halls ii. Licensed daycare facilities iii. Institutional uses • iv. Motor vehicle service stations v. Commercial parking lots and ramps vi. Multiple family dwellings provided: a. that business/commercial uses occupy the ground floor below the residential use vii. On-Sale liquor establishments viii.Commercial recreational facilities ix. Convenience store x. Funeral parlor xi. Restaurants, (Class II) xii. Governmental buildings and facilities xiii.Apartments subordinate to the principal use p p p xiv. Produce Markets 111 xv. massage Therapeutic e and sauna establishments p g • 900.34 - NONCONFORMING USES 1. Nonconforming Buildings and Uses. Except as hereinafter provided, the nonconforming use of any structure, building, and/or land, shall not be extended or enlarged. Except as provided herein, the nonconforming use of a building or structure shall be discontinued on the expiration of a reasonable period for amortization of the building as specified in this paragraph or ten (10) years after the effective date of this Ordinance if not so specified. A reasonable amortization period shall be forty (40) years for buildings of ordinary wood construction, fifty (50) years for buildings of wood and masonry construction, and sixty (60) years for buildings of fireproof construction. The amortization period shall begin on the date the nonconformity began. Buildings found to be nonconforming only by reason of height, yard or area requirements do not have to be discontinued following the expiration of an amortization period but cannot be enlarged except as provided herein. 7 . Alterations. A. The lawful use of a building existing on September 4, 1980, may be continued, although such use does not conform with the provisions hereof. If no structural alterations are made, a nonconforming use of a building may be changed to another nonconforming use of the same or more restricted classification. The foregoing provisions shall also apply to nonconforming uses in districts hereafter changed. Whenever a nonconforming use of a building has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed into a less restricted use. B. Permission to make alterations which will extend or intensify a nonconforming use may be requested and granted pursuant to the procedures and standards set forth in Section 900. 40 of this Ordinance, provided: i. The cost of the alterations is not in excess of twenty-five percent (25%) of the assessed value of the improvements on the property; ii. The alteration will not make the property any less comparable with adjacent properties; iii. The entire nonconforming use of the property shall be discontinued at the expiration of the amortization period established by Section 900 . 34 (1) of this Ordinance, which amortization period shall not be extended by reason of the alteration to the nonconforming use; iv. The owner of the property shall execute and record, in 111 a form prescribed by the City Attorney, a document placing • future purchasers of the property on notice of the amortization period established by Section 900.34 (1) and the fact that the amortization period has not been extended by reason of the alteration. 8 . Residential Alterations. Alterations may be made to a residential building containing nonconforming residential units when they will improve the livability of such units, provided, however, that they do not increase the number of dwelling units in the building. 410 i • 900.40 - BOARD OF ADJUSTMENTS. 1. Membership. Members of the Planning Commission shall serve as the Board of Adjustments (the Board) required pursuant to Minnesota Statutes 462 .354, Subd. 2. Members shall serve until the expiration of their term as Planning Commission members. Board members shall serve without compensation but may be paid for necessary expenses. 2 . Board Procedure. The Board may adopt rules of procedure for the transaction of its business consistent with the provisions of this Ordinance and Minnesota Statutes 462 . 351 through 462.364 . Four members of the Board shall constitute a quorum. Regular meetings of the Board shall be held on the fourth Tuesday of each month or at such other times as are specified in its rules. Special meetings shall be held at the call of the Chair, who shall be the Chair of the Planning Commission. Notice of special meetings shall be posted at the City Hall and transmitted to members at least three (3) days prior to the date of the meeting. There shall be a fixed place of meeting and all meetings shall be open to the public. A record shall be kept of the Board's transactions, findings and determinations. 3. Powers and Duties of Board. Pursuant to Minnesota Statutes 462. 357, Subd. 6, the Board shall have the following powers: A. To hear and decide appeals where it is alleged that there is an error in any order, requirements, decision or determination made by the Building and Zoning Administrator in the administration of a land use ordinance. B. To hear requests for variances from literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration. 4 . Appeal. An appeal as specified in 3 (a) may be made by any person (appellant) , including a city officer or employee, affected by action of the Building and Zoning Administrator. An appeal may be made only following the transmission of a written notice of appeal which specifies the subject and grounds therefor. Such notice must be received by the Building and Zoning Administrator within sixty (60) days following the issuance of the order, requirement, decision or determination which is the subject of the appeal. • •R , -.� gn fi r z a , 0 ' ''" .- ' - '-'2,;:1H,,,..',,;,''':::...:'-.4:,..•-''''':'-,.,'.,'..- i -''. ,--'''','''.; '--1-'.:,i''; :,:4','-.'f---..-1 . .., r. . • •