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HomeMy WebLinkAbout20101206 - VIII-B-1City Council Memorandum To: Mayor Hicks & City Councilmembers From: John Hinzman, Community Development Director Date: December 6, 2010 st Item: 1 Reading\Order Public Hearing: Amend Chapter 155 – Zoning Non- Conformities Council Action Requested: st The City Council is asked to consider 1 Reading and order a public hearing to amend City Code Chapter 155 – Zoning Non-Conformities. The change would eliminate the need for . variances for most nonconforming structures st Upon consideration of 1 Reading, the public hearing would be held at the December 20, 2010 City Council Meeting. No changes have been made to the ordinance since the October 18, 2010 City Council Meeting. Background Information: The Minnesota Supreme Court recently issued a decision that appears to severely limit the ability of City’s to grant zoning variances. In the case of Krummenacher v. City of Minnetonka, the Supreme Court narrowly interpreted the definition of “undue hardship” and held that the “reasonable use” prong of the “undue hardship” test is not whether the proposed use is reasonable, but rather whether there is reasonable use in the absence of the variance. This is a much stricter standard, which considerably limits variance opportunities. Please see the following link for further information http://www.lmc.org/page/1/varianceruling.jsp. Staff continues to research the impact of the ruling, and may bring further amendments forward in the near future. Financial Impact: The City would see fees decrease by approximately $750 per year. Owners of nonconforming properties would benefit in avoiding a $250 application fee and 4-6 weeks of Planning Commission-City Council Review. Advisory Commission Discussion: The Planning Commission voted 4-2 (Zeyen, Peine) to recommend denial of the request at the October 11, 2010 meeting. No one spoke for or against the item during the public hearing. Commissioners desire to retain the ability to review variances to nonconformities and the opportunity for the public to comment on them. Please see the attached minutes for further information. City of Hastings 101 Fourth Street EastHastings, MN 55033-1955p:651-480-2350f:651-437-7082www.ci.hastings.mn.us Council Committee Discussion: The Planning Committee of the City Council (Alongi and Slavik present, Balsanek absent) met on November 15, st 2010 to discuss the issue. The Committee agreed to recommend 1 Reading of the Ordinance Amendment be considered at the December 6, 2010 City Council Meeting. The following was discussed: Limitation in granting variances due to the recent Supreme Court judgment. Does the proposed ordinance amendment allow for construction of homes that would be larger than others in the neighborhood? Would the ordinance amendment require any other review or discretion by staff? Attachments: Ordinance Amendment Minutes – Planning Commission Meeting – October 11, 2010 Effect of Change Create “Established Structure Setback” – The setback established by an existing structure. The Established Structure Setback may be less than the minimum zoning provision provided that the structure is legally nonconforming. A nonconforming structure may be expanded provided it does not extend beyond the “Established Structure Setback” Please see below: Nonconforming Variances Granted About half of the variances granted over the last ten years have been to allow expansions of nonconforming structures. These variances would no longer be necessary. Year Nonconforming Total Variances Variances Granted 2000 2 4 2001 3 6 2002 5 10 2003 4 7 2004 6 11 2005 5 11 2006 0 2 2007 3 5 2008 2 5 2009 2 5 2010 1 3 TOTAL 33 69 ORDINANCE NO.______________, THIRD SERIES AN ORDINANCE OF THE CITY OF HASTINGS, MINNESOTA AMENDING HASTINGS CITY CODE CHAPTER 155 – ZONING ORDINANCE: NONCONFORMITIES AND ESTABLISHED STRUCTURE SETBACK BE IT ORDAINED by the City Council of the City of Hastings as follows: Chapter 155.02 of the Hastings City Code – Zoning Ordinance – Definitions is hereby amended as follows: (Additions to the ordinance are underlined and section numbers may be renumbered): ESTABLISHED STRUCTURE SETBACK. The setback established by an existing structure. The Established Structure Setback may be less than the minimum zoning provision provided that the structure is legally nonconforming. AND Chapter 155.06(D)(1) of the Hastings City Code – Zoning Ordinance – Nonconforming Structures is hereby amended as follows: (Additions to the ordinance are underlined and section numbers may be renumbered): (D) Nonconforming structures. Where a lawful structure exists at the effective date of adoption or amendment of this chapter that could not be built under the terms of this chapter because of restrictions on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, the structure may be continued while it remains otherwise lawful, subject to the following provisions. (1)No nonconforming structure may be enlarged or altered so as to increase its nonconformity, except as follows: a.but any A structure or portion thereof may be altered to decrease its nonconformity. b.A nonconforming structure may be expanded provided it does not extend beyond the Established Structure Setback. All other sections shall remain unchanged. ADOPTED by the Hastings City Council on this ______ day of ________, 2010. _________________________________ Paul J. Hicks, Mayor ATTEST: ______________________________________________ Melanie Mesko Lee, City Clerk I HEREBY CERTIFY that the above is a true and correct copy of an ordinance presented to and adopted by the City of Hastings, County of Dakota, Minnesota, on the ____ day of _________, 2010, as disclosed by the records of the City of Hastings on file and of record in the office. _____________________________________________ Melanie Mesko Lee, City Clerk ( SEAL) This instrument drafted by: City of Hastings (JWH) 101 4th St. East Hastings, MN 55033 Hastings Planning Commission October 11, 2010 Regular Meeting Chair Zeyen called the meeting to order at 7:00 p.m. Roll Call 1. Commissioners Present: Zeyen, Peine, Stevens, Bullington, Slaten, Vaughan Commissioners Absent: Rohloff Staff Present: Associate Planner Justin Fortney Community Development Director John Hinzman Approval of Minutes – September 27, 2010 2. Motion by Commissioner Slaten to approve the September 27, 2010, minutes. Seconded by Commissioner Vaughan. Upon vote taken, Ayes 6, Nays 0. Motion carried. PUBLIC HEARINGS City of Hastings – 3.Ordinance Amendment #2010-46 – Zoning Ordinance Non-Conformities. Community Development Director Hinzman presented the staff report. Chair Zeyen opened and closed the public hearing 7:10 p.m. No members of the public spoke to the issue. Commissioner Bullington said he has concerns with the variances not coming to the Planning Commission or City Council for review. He added that it seems we are trying to go around the Supreme Court ruling by calling this something different. He stated he has a problem with avoiding public involvement. Commissioner Slaten asked if the city attorney has reviewed the proposed ordinance amendment to determine if it is acceptable. Hinzman said the City attorney has reviewed it and found it to be consistent with the recent court findings. Zeyen asked what the statistics for denial of variances are. Hinzman said about one or two each year. Commissioner Stevens commented that if we make this change the Commission will not be able to review theses cases and the only risk for approving a variance comes if the City is challenged. Hinzman said this is being proposed in part from the recent court ruling and in part from a customer service standpoint. The typical variance this proposal addresses has not been controversial and takes only minutes at public meetings with little or no discussion. Bullington said approving this proposal would make for a lack of official input. He added that it is called a variance because it is not normal and that is the reason the Supreme Court looked at it like this. Zeyen asked if this issue could be looked at by the Planning Committee of the City Council. Hinzman responded that it could and added that anytime there are many variances to a code, it is clear that the affected parts of the code need to be amended. Hinzman said the Supreme Court said that Cities should look at amending their codes rather than using variance to make exceptions. A commissioner asked what other cities are doing in response to the court decision. Hinzman said some cities are developing a variance process that is called something other than a variance and some are moving setbacks to the subdivision ordinance. Hinzman added that proposals like these are not seen as appropriate fixes to the issues because they could still be challenged and are not getting at the root of the problems of the codes. Commissioner Vaughan asked what the process is for changing a code. Hinzman responded that it would be reviewed by the Planning Commission and receive two hearings at City Council meetings. Vaughan asked if there is an easy fix to the code to fix this issue. Hinzman responded that this proposal before you will fix the issue for the largest number of the variance we see and that have little controversy. Vaughan added that the Commission will lose the ability to get feedback from neighbors. Slaten asked if the amendment could be brought-up again in the future, say in six months after their action tonight. Hinzman said yes, there is no waiting period for staff to bring back an ordinance amendment, but in the mean time virtually no variance will be allowed. Motion by Bullington to deny the proposed ordinance amendment. Seconded by Vaughan. Motion passed. Upon vote taken, Ayes 4, Nays 2 (Zeyen and Peine). Motion carried.