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7.3 SR 07-19-2021it ci Elk* River Request for Action To Item Number Mayor and City Council 7.3 Agenda Section Meeting Date Prepared by Public Hearings July 19, 2021 Chris Leeseberg, Senior Planner Item Description Reviewed by Conditional Use Permit: Private Kennel, 18857 Zack Carlton, Planning Manager Albany Street Reviewed by Cal Portner, City Administrator Action Requested Approve the Interim Use Permit with the following conditions: 1. The Interim Use Permit (IUP) will expire if the family member supported by the animals moves from the home. 2. The private kennel shall be limited to ten (10) animal units. Additional animal units will require an amendment to the IUP. 3. No more than six (6) animal units shall be allowed outdoors at once. 4. The removal of animal waste shall comply with Section 10-5. 5. No more than two (2) animals per supervisor shall be allowed outside of the fenced area. 6. All dog waste shall be removed immediately when dogs are off - site. 7. The applicant shall receive a private kennel license from the city. 8. No dogs designated as dangerous or potentially dangerous are allowed to be kept on site, and the keeping of such dog shall be grounds for revocation of the permit. 9. The backyard shall be fenced with a six-foot tall 100 percent opaque fence and is to be always maintained. CR3: RR Alternatively, should the City Council move to deny the application, Council must note specific findings where the standards for approval Figure I are not met, and direct staff to return with a findings of fact denying the applications on August 2, 2021. Background/Discussion Case Number CU 21-07 i The Planning Commission, at their May 25, 2021meeting, recommended denial off the Conditional Use Permit (CUP) for the following reasons: 1. Standard #1, for issuance of a CUP, is not met. The Elk River Vision P I I E I E U I i A welcoming community with revolutionary and spirited resourcefulness, exceptional [NATURE] service, and community engagement that encourages and inspires prosperity. Updated. August 2020 2. The proposed use could detrimentally affect the use and enjoyment of other property in the immediate vicinity. Please note that the required findings for an IUP are different than for a CUP and do not include the standard for issuance of a CUP the Planning Commission found was not met. The required findings for an IUP are found in Section 30-658 of the City Code, which is attached. Staff believes these findings are all met by this application, provided the applicant agrees to the conditions approved by Council. The City Council reviewed the request at their July 6, 2021, meeting and after several questions were raised regarding a letter submitted from a medical professional on behalf of the applicant, requested the city attorney advise whether the Americans with Disabilities Act (ADA) or Federal Fair Housing Act (FHA) require Council approve the application for a CUP. The city attorney's findings are attached in a memo dated July 14, 2021. The Council also discussed if the CUP could be changed to an IUP as they would be more comfortable with the request knowing it would not go with the property indefinitely. The applicant did officially request the CUP be change to an IUP and the city attorney's memo outlines that this process is allowed. Financial Impact None Mission/Policy/Goal ■ Help, not hinder citizen quality of life ■ Ethical, efficient, and responsible ■ Opportunity to live, work, and play ■ Work with citizens to achieve goals Attachments ■ Applicant IUP request letter dated July 12, 2021 ■ City Attorney Memo dated July 14, 2021 ■ Section 30-658 Received July 12, 2021 Changing from CUP to IUP I am requesting the approval of an interim use permit for my address at 18857 Albany street nw. This permit would enable me to get a kennel license to maintain my dogs at this address. Conditions to be applied would include the termination or transfer of the permit upon the sale of the property. These are pet quality animals used for emotional support and service roles inside of our home. Thank you Joshua Nelson q, " e Z, e- City E Memorandum TO: Mayor John Dietz and Council Members From: City Attorney Peter Beck Date: July 14, 2021 Subject: Application for Conditional Use Permit for Private Kennel at 18857 Albany Street During the July 6, 2021, City Council meeting, Council requested that I research whether the Americans with Disabilities Act ("ADA") or Federal Fair Housing Act ("FHA") require that Council approve the application for a Conditional Use Permit ("CUP") for a Private Kennel at 18857 Albany Street. It is my understanding that since the July 6th meeting, the Applicant has requested that the application be considered a request for an Interim Use Permit ("IUP") rather than a CUP. No additional public hearings would be required for Council to approve an IUP. The Applicant has submitted a letter from a medical professional identifying the dogs to be kept at the home as emotional support animals for a member of the household. The ADA provides protection for "service animals", which are defined differently than emotional support animals, and does not provide protection for emotional support animals. Therefore, Council is not obligated to approve an IUP under the ADA. However, the FHA provides protection for "assistance animals", which could include emotional support animals. Whether Council is required to accommodate the request for the five dogs as emotional support animals is a more complex question, which I have discussed with co -counsel Joel Jamnik. Joel and I believe that the size of the lot and the size and number of the dogs would put the city in a pretty strong position to defend a land use challenge if the application for an IUP is denied. However, as always, if Council is considering denial, I recommend that Council direct staff to prepare a Resolution of Denial making Findings of Fact to support the decision. If Council determines that the request for an accommodation is reasonable and decides to approve an IUP, the approval can be made subject to a condition that the IUP will expire if the family member being supported by the animals moves from the home. I will be at the July 19th Council meeting to answer any additional questions. Sec. 30-658. Interim uses. (a) Definitions. The definitions in section 30-1 are applicable in this section. (b) Authorization. The city council may authorize interim uses of property by issuance of interim use permits. (c) Required findings. Before the city council may authorize an interim use, it must make the following findings: (1) The period of time for which the interim use permit is to be granted will terminate before any adverse impacts are felt upon adjacent properties. (2) There is adequate assurance that the property will be left in suitable condition after the use is terminated. (3) The use is similar to uses allowed in the zoning district in which the property is located. (4) The date or event that will terminate the use can be identified with certainty. (5) Authorizing the use will not impose additional costs on the public if it is necessary for the public to take the property in the future. (6) The applicant and user agree to all conditions that the city council deems appropriate for authorization of the interim use. (7) The applicant provides assurances deemed adequate by the city council that the use will terminate as provided in the interim use permit. The city council may require the applicant to deposit a cash amount with the city, or provide some other form of security, to ensure compliance with this criteria. (8) Authorization of the interim use will not result in adverse effects on the public health, safety, or welfare. (9) The proposed interim use is consistent with the City of Elk River Comprehensive Plan and conforms to the city's zoning regulations. (d) Application for permit. Applications for interim use permits shall be processed in the same manner as for conditional use permits, as established in this subdivision III. (Ord. No. 00-05, § 2(900.42), 3-20-2000; Ord. No. 10-03, § 1, 3-15-2010) State law reference(s)—Interim uses, Minn. Stats. § 462.3597. (Supp. No. 53) Created: 2021-06-28 21:17:29 [EST] Page 1 of 1 Conditional Use Permit Private Kennel S - 61 I � � r+ _ 75 04155-LO-7'1M 75 �455— 650 755-0 70 1 75-132-1111 �. ry 75=132-1110 a 7 i— 98-0110 75�9$-F124 , joshuq. R.Theis n niti t l Use Permit 75 49C -0110 7i —415-0 30 Case No: CU I -0 Elk River Background ■ PC recommended denial: 1. Standard # 1 , for issuance of a CUP, is not met. 2. The proposed use could detrimentally affect the use and enjoyment of other property in the immediate vicinity ■ CC reviewed July 6 ■ Does ADA or FHA require CC approve the application? ■ More comfortable with request if request did not stay with property Background ■ Requesting an IUP now ■ Will expire if the family member supported by the animals moves from the home ■ Required IUP findings differ from CUP findings and do not include the standard for issuance of a CUP the PC found was not met ■ Staff believes these IUP findings are all met by this application, provided the applicant agrees to the conditions approved by Council Action Requested ■ Approve, by motion, the IUP with the 9 conditions outlined in the memo Action Requested ■ Alternatively, should the CC move to deny the application, Council must note specific findings where the standards for approval are not met, and direct staff to return with a findings of fact denying the applications on August 2, 2021 �l A* � � I i i r � s r 7 _4j33) - 40 r