5.14. SR 11-15-2004
Item #~4.
MEMORANDUM
FROM:
Mayor and City C~
Michele McPherso~irector of Planning
TO:
DATE:
November 15, 2004
SUBJECT:
Case No. OA 04-04
Request by the City of Elk River to Amend Section 30-691
through 30-70 I ofthe Land Use Regulations
Request
The City Council is asked to consider an ordinance amendment to amend the
nonconfonning uses and structure section of Chapter 30 "Land Development Regulations"
in order to be consistent with Minnesota Statute.
Attachments
. Minnesota Session Laws Chapter 258 - Senate File 2274
. Revised Ordinance Language
. Ordinance No. 04-
Analysis
As a result of encouragement from the Alliance for Reasonable Municipal Regulation
(ARMR), the Minnesota State Legislature amended several sections of Minnesota Statute
462, which is the enabling legislation for land use planning. Of specific interest to the City
are changes from Senate File 2274, which became effective August 1, 2004 which amended
the requirements for building moratoria and nonconfonning uses. In order to provide
consistency with Minnesota Statute, staff has prepared the attached ordinance amendment
with assistance from the City Attorney.
Planninz Commission Action
The Planning Commission voted unanimously to recommend approval of the request to the
City Council.
Memo to the Mayor and City Council/OA o~-o~
November 15, 200~
Page 2
..--.-..-
Recommendation
Staff and the Planning Commission recommend that the City Council approve the ordinance
amendment.
S:\PLANNING\Case Files\2004\OA 04-04 City ofER Statutes\1115 04 cc memo.doc
Iv'.cinnesota Session Laws 2004, Chapter 258
Minnesota Session Laws
Minnesota Session Laws - 2004
Key: ltmg,w.ge!5 13<: aeJetea...new language Chan?e language enhancement display.
Legislative history and Authors
CHAPTER 258-S.F.No. 2274
An act relating to zoning; providing certain
limitations on municipal interim ordinances and on
nonconformities; amending Minnesota Statutes 2002,
sections 462.355, subdivision 4; 462.357, subdivision
le.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 20021 section 462.355,
subdivision 4, is amended to read:
Subd. 4. [INTERIM ORDINANCE.] If a municipality is
conducting studies or has authorized a study to be conducted or
has held or has scheduled a hearing for the purpose of
considering adoption or amendment of a comprehensive plan or
'official controls as defined in section 462.352, subdivision 15,
or if new territory for which plans or controls have not been
adopted is annexed to a municipality, the governing body of the
municipality may adopt an interim ordinance applicable to all or
part ~f its jurisdiction for the purpose of protecting the
planning process and the health, safety and welfare of its
citizens. The interim ordinance mqy regulate, restrict or
prohibit any use, development, or subdivision within the
jurisdiction or a portion thereof for a period net to exceed one
year from the date it is effect~ve~. The period of an
interim ordinance applicable to an area that is affected by a
city's master plan for a municipal airport may be extended for
such additional periods as the municipality may deem
appropriate, not exceeding a total additional period of 18
months in the case where the Minnesota Department of
Transportation has requested a city to review its master plan
for a municipal airport prior to Auqust 1, 2004. In all other
cases, no interim ordinance may halt, delay, or impede a
subdivision which has been given preliminary approval, nor may
any interim ordinance extend the time deadline for aGency action
set forth in section 15.99 with respect to any application filed
prior to the effective date of the interim ordinance. The
Governinq body of the municipality may extend the interim
ordinance after a public hearinq and written findinGs have been
adopted based upon one or more of the conditions in clause (1),
(2), or (3). The public hearinq must be held at least 15 days
but not more than 30 days before the expiration of the interim
ordinance, and notice of the hearinG must be published at least
ten days before the hearinG. The interim ordinance may be
extended for the followinG conditions and durations, but, except
as provided in clause (3), an interim ordinance may not be
extended more than an additional 18 months:
(1) up to an additional 120 days followinq the receipt of
the final approval or review by a federal, state, or
httD:/ /www.revisor.Jeg.state.l1m.us/slaws/2004/ c25 8 .html
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7/8/2004
Minnesota Session Laws 2004, Chapter 258
metropolitan aqency when the approval is required by law and the
review or approval has not been completed and received by the
municipality at least 30 days before the expiration of the
interim ordinance;
(2) up to an additional 120 days followinq the completion
of any other process required by a state statute, federal law,
or court order, when the process is not completed at least 30
days before the expiration of the interim ordinance; or
(3) up to an additional one year if the municipality has
not adopted a comprehensive plan under this section at the time
the interim ordinance is enacted.
Sec. 2. Minnesota Statutes 2002/ section 462.357,
subdivision Ie, is amended to read:
Subd. 1e. [NONCONFORMITIES.] Any nonconformity, including c
the lawful use or occupation of land or premises existing at the
time of the adoption of an additional control under this
chapter, may be continued, including through repair ~L
replacement, restoration, maintenance, b"t ~-F or improvement,
but not includinq expansion, unless:
ill the nonconformity or occupancy is discontinued for a
period of more than one year~L or
ill any nonconforming use is destroyed by fire or other
peril to the extent of greater than 50 percent of its market
value, and no buildinq permit has been applied for within 180
days of when the property is damaqed. In this case, a
municipality may impose reasonable conditions upon a buildinq
permit in order to mitiqate any newly created impact on adlacent
property.
Any subsequent use or occupancy of the land or premises
shall be a conforming use or occupancy. A municipality rnaYL by
ordinance, permit an expansion or impose upon nonconformities
reasonable regulations to prevent and abate nuisances and to
protect the public health, welfare, or safety. This subdivision
does not prohibit a municipality from enforcing an ordinance
that applies to adults-only bookstores, adults-only theaters, or
similar adults-only businesses, as defined by ordinance.
Presented to the governor May 18, 2004
Signed by the governor May 29, 2004, 9:10 a.m.
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Page 2 of2
7/8/2004
DIVISION 3. NONCONFORMING USES AND STRUCTURES*
*State law references: Nonconforming uses, Minn. Stats. ~ 462.357, subd. lc.
Sec. 30-691. Generally.
Except as provided in tbis division, the nonconforming use of any structure, building,
and/or land shall not be expanded exteRaea or enlarged. Tbe nonconforming use of a
building or structure for a sexually oriented land use shall be discontinued on the expiration
of a reasonable period for amortization of the building as specified in tbis section or ten
years after the effective date of the ordinance from which tbis article is derived if not so
specified. A reasonable amortization period shall be 40 years for buildings of ordinary wood
construction, 50 years for buildings of wood and masonry construction, and 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 in tbis division.
(Code 1982, ~ 900.34(1))
Sec. 30-692. Nonconforming signs.
No sign erected before the passage of the ordinance from which tbis article is derived shall
be eJlPanded rebWlt, altered or removed to a new location without being brought into
compliance with the requirements of tbis article.
(Code 1982, ~ 900.34(2))
Sec. 30-693. Nonconforming lots of record.
(a) In any district in which single-family dwellings are permitted, notwithstanding
limitations imposed by other provisions of tbis article, a single-family dwelling and
customary accessory buildings may be erected on any single lot of record on the effective
date of the ordinance from which tbis article is derived, provided that it fronts on a street.
Yard dimensions and othet requirements for the lot shall conform to regulations for the
district unless a variance is granted.
(b) If two or more lots or combinations of lots and portions of lots with contiguous
street frontage in single ownership are of record on the effective date of the ordinance from
which tbis article is derived, and if all or part of the lots do not meet with width and area
requirements of tbis article for lots in the district, the contiguous lots shall be considered to
be an undivided parcel for the purpose of tbis article and no portion of such parcel shall be
used or occupied which does not meet lot width and area requirements of tbis article, nor
shall the parcel be so divided that any remaining lot does not comply with such
requirements.
(Code 1982, ~ 900.34(3))
Sec. 30-694. Discontinuance of use.
(a) If a nonconforming use of any building or premises is discontinued or its normal
operation stopped for a period of twelve";" months, the use of the building or premises
shall thereafter conform to the regulations of the district in which it is located.
(b) If the use of a nonconforming advertising sign structure is discontinued or its normal
operation stopped for a period of twelve ,,;,,-months, the structure shall be removed by the
owner or lessor at the request of the city council.
(Code 1982, ~ 900.34(6); Ord. No. 99-13, ~ 1(900.34(6)),8-16-1999)
Sec. 30-695. Change of use; alterstians generally.
(a) The lawful use of a building existing on September 4, 1980, may be continued,
although such use does not conform with the provisions of this article. If no structural
alterations are made, a nonconforming use of a building may be changed to another
nonconforming use of the same or a more restricted classification. The provisions of this
subsection 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.
(3) The. ea.t:1:re. fl0:aeaflfa1'1llif1.g Hae. Bf the. prsJ.3e.ltJ shaH Be aisesR1:1:nl:1e.a at the expiratiofl
sf die affiSf1:izat:1.sfl pertea esfft13Hshea B' seefieR 30 691, nh:ieh MuarttiJat:1.eR peflS8. ahall
nat be ext-eaaed b, reasan af the Rltcra!ten to the noncBnf6rmtng lise.
(1) The aWftcr Bf the prapert) shsR CJleelite aad recBra, in a fa_ prescribcd by the ei~
att:emey, a a0eatHent pkle:i:ftg fu.R.1:fe19l:l:fehaSef3 af the pf8pe~ 6ft flot:1.ee of the am.6~B.t:i8fl
peaed establishea b, seetien 30 691 and the fact that the ftffiBrti2a!ten period has net been
cJltcndcd by rcason af the alreraciBn.
(Code 1982, ~ 900.34(7))
Sec. 30-696. 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.
(Code 1982, ~ 900.34(8))
Sec. 30-697. Restoration of damaged structures. Repair. replacement. restoration.
maintenance or improvement of nonconforming use
Any nonconformity existing- on September 4 1980 may be continued. including- through
repair. replacement. restoration. maintenance. or improvement. but not including expansion.
unless:
(1) the nonconformi1;y or occupancy is discontinued for a period of more than one year
or
(2) any nonconforming use is destroyed by fire or other peril to the extent of greater
than 50 percent of its market value. and no building- permit has been ap.plied for
within 180 days of when the propet1;y is damaged. In this case. a municipality may
impose reasonable conditions upon a building- permit in order to mitigate any newly
created impact on adjacent property.
Any subsequent use or occupancy of the land or premises shall be a conforming use or
occupan<;y.
r-Je ftefle8flf8~~ Building af stmehtt'e, eJ[eept 3ingk. fMI:tily ~ eD:ifl.g3 in Mi H. 1 afStr.i.e4
"hieh ha3 Bee-.a aMnagea By fu:e, eJrplssial1, gasa, act af Cedar ather eala::miey ta t:he exteat
af luafe thaa 50 pe-re"Ht af its 8.SSeS3ea mark"t . 8:1tte skaR Be rest8I"a. EJreept in e8ftf8fil.~
~~ the tegalatiafls af this ar1:iele. ...^... HaftEafifarming h~ at: 3tfl.1etufe ~ lriEli is claln~ea.
1a a lesser degree mAJ Be restored aHa. iffi pre l1.aHS USE eefitffJ.Hea at re3t1filea pra .-idea that
re3teratfefi i3 ESl'Uf3letecl. \\~t:b:in aRe] eM faRe ~":...ng its a8.ffulge aaa fie efiHtrgeilleftt aEetifs.
NotlUn~ in this article shall prevent the placin~ of a structure in safe condition when the
structure is declared unsafe by the buildin~ official.
(Code 1982, ~ 900.34(9))
Sec. 30-698. Normal maiftteaaaee of skttettt.es. Expansion of nonconforming use
Permission to expand a nonconforming use may be requested and granted pursuant to the
procedures and standards set forth in subdivision II of division 2 of this article. provided:
(1) the cost of the expansion is not in excess of 25 percent of the assessed value of the
improvements on the proper1;y.
(2) The expansion will not make the proper1;y" any less compatible with adjacent
properties.
~fMnteflM1Ee af 8. bai:l8fng af eale-l :3t:tI:1Eft1:fe e8fl~ af l:l3ea BJ 8. B.8flfsflfa:rmtng u:n: ~-ill
Be pernl:i~ea n hefl it ineffiae3 a.eees3B:.11, flBfl.SE:ttlemrM 1r.}3a1r3 RaB me1seafftl ~atieft3
~ lrieh 6a flat f.JEtefla af intefl.si!; the fl8flesflfef'J.'f1ing Bai:l~ af Hse.
(Code 1982, ~ 900.34(10))
Sec. 30-699. Work under previously issued permits.
NotlUng contained in this article shall require any change in plans, construction or
designated use of a building or structure for which a building permit has been issued prior to
the effective date of the ordinance from which this article is derived; provided, however, that
the entire building shall be completed according to such plans as filed witlUn 24 months
from the date of issuance of the permit.
(Code 1982, ~ 900.34(11))
Sec. 30-700. Status of uses for which variance or conditional use permit has been
granted.
If a conditional use permit or variance has been granted as provided in this article, the
structure or use shall not be deemed a nonconformity, but shall without further action be
deemed permitted in such district.
(Code 1982, ~ 900.34(12))
Sec. 30-701. Nonconformities created by amendment.
When a nonconformity in a structure or use of land or a structure is created by an
amendment to this article, the rights granted by this division to the continuance of
nonconformities Mia 18 the tefi.11ina1:Lsfl M18 MIl6f1tiJaMsfl apply to such nonconfonnities
existing on the date of the amendment.
(Code 1982, ~ 900.34(13))
ORDINANCE 04 -
CITY OF ELK RIVER
CASE NO. OA 04-04
AN ORDINANCE OF THE CITY OF ELK RIVER REPEALING
THE EXISTING SECTIONS 30-691 THROUGH 30-701 OF THE CITY CODE OF
ORDINANCES AND ADOPTING NEW SECTIONS 30-691 THROUGH 30-701
The City Council of the City of Elk River does hereby ordain as follows:
Section 1. Sections 30-691 through Sections 30-701 of DMSION 3.
NONCONFORMING USES AND S1RUCIURES, of the City of Elk River Code of Ordinances
shall be repealed and new Sections 30-691 though 30-701 shall be adopted as follows:
Sec. 30-691. Generally.
Except as provided in this division, the nonconfonning use of any structure, building,
and! or land shall not be expanded or enlarged. The nonconfonning use of a building or
structure for a sexually oriented land use shall be discontinued on the expiration of a
reasonable period for amortization of the building as specified in this section or ten years
after the effective date of the ordinance from which this article is derived if not so specified.
A reasonable amortization period shall be 40 years for buildings of ordinary wood
construction, 50 years for buildings of wood and masonry construction, and 60 years for
buildings of fireproof construction. The amortization period shall begin on the date the
nonconformity began. Buildings found to be nonconfonning 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 in this division.
(Code 1982, ~ 900.34(1))
Sec. 30-692. Nonconforming signs.
No sign erected before the passage of the ordinance from which this article is derived shall
be expanded or removed to a new location without being brought into compliance with the
requirements of this article.
(Code 1982, ~ 900.34(2))
Sec. 30-693. Nonconforming lots of record.
(a) In any district in which single-family dwellings are permitted, notwithstanding
limitations imposed by other provisions of this article, a single-family dwelling and
customary accessory buildings may be erected on any single lot of record on the effective
date of the ordinance from which this article is derived, provided that it fronts on a street.
Yard dimensions and other requirements for the lot shall conform to regulations for the
district unless a variance is granted.
(b) If two or more lots or combinations of lots and portions of lots with contiguous
street frontage in single ownership are of record on the effective date of the ordinance from
which this article is derived, and if all or part of the lots do not meet with width and area
requirements of this article for lots in the district, the contiguous lots shall be considered to
be an undivided parcel for the purpose of this article and no portion of such parcel shall be
used or occupied which does not meet lot width and area requirements of this article, nor
shall the parcel be so divided that any remaining lot does not comply with such
requirements.
(Code 1982, ~ 900.34(3))
Sec. 30-694. Discontinuance of use.
(a) If a nonconfonning use of any building or premises is discontinued or its nonna!
operation stopped for a period of twelve months, the use of the building or premises shall
thereafter conform to the regulations of the district in which it is located.
(b) If the use of a nonconfonning advertising sign structure is discontinued or its
nonna! operation stopped for a period of twelve months, the structure shall be removed by
the owner or lessor at the request of the city council.
(Code 1982, ~ 900.34(6); Ord. No. 99-13, ~ 1(900.34(6)),8-16-1999)
Sec. 30-695. Change of use.
(a) The lawful use of a building existing on September 4, 1980, may be continued,
althougb such use does not conform with the provisions of this article. If no stroctural
alterations are made, a nonconfonning use of a building may be changed to another
nonconfonning use of the same or a more restricted classification. The provisions of this
subsection shall also apply to nonconfonning uses in districts hereafter changed. Whenever a
nonconfonning use of a building has been changed to a more restricted use or to a
confonning use, such use shall not thereafter be changed into a less restricted use.
(Code 1982, ~ 900.34(7))
Sec. 30-696. Residential alterations.
Alterations may be made to a residential building containing nonconfonning 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.
(Code 1982, ~ 900.34(8))
the nonconfonnity or occupancy is discontinued for a period of more than one year,
or
any nonconfonning use is destroyed by fire or other peril to the extent of greater
than 50 percent of its market value, and no building pennit has been applied for
within 180 days of when the property is damaged. In this case, a municipality may
impose reasonable conditions upon a building pennit in order to mitigate any newly
created impact on adjacent property.
Any subsequent use or occupancy of the land or premises shall be a confonning use or
occupancy. Nothing in this article shall prevent the placing of a structure in safe condition
when the structure is declared unsafe by the building official.
(Code 1982, ~ 900.34(9))
Sec. 30-697. Repair, replacement, restoration, maintenance or improvement of
nonconfonning use
Any nonconfonnity existing on September 4, 1980 may be continued, including througb
repair, replacement, restoration, maintenance, or improvement, but not including expansion,
unless:
(1)
(2)
Sec. 30-698. Expansion of nonconfonning use
Permission to expand a nonconfonning use may be requested and granted pursuant to the
procedures and standards set forth in subdivision II of division 2 of this article, provided:
(1) the cost of the expansion is not in excess of 25 percent of the assessed value of the
improvements on the property.
(2) The expansion will not make the property any less compatible with adjacent
properties.
(Code 1982, ~ 900.34(10))
S:\PLANNJNG\Case Files\2004\OA 04-04 City of ER Statutes\Draft Otdinance 1115 cc.doc
Sec. 30-699. Work under previously issued pennits.
Nothing contained in this article shall require any change in plans, construction or
designated use of a building or structure for which a building permit has been issued prior to
the effective date of the ordinance from which this article is derived; provided, however, that
the entire building shall be completed according to such plans as filed within 24 months
from the date of issuance of the permit.
(Code 1982, $ 900.34(11))
Sec. 30-700. Status of uses for which variance or conditional use pennit has been
granted.
If a conditional use permit or variance has been granted as provided in this article, the
structure or use shall not be deemed a nonconformity, but shall without further action be
deemed permitted in such district.
(Code 1982, $ 900.34(12))
Sec. 30-701. Nonconformities created by amendment.
When a nonconformity in a structure or use of land or a structure is created by an
amendment to this article, the rights granted by this division to the continuance of
nonconformities apply to such nonconformities existing on the date of the amendment.
(Code 1982, $ 900.34(13))
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