Planning Commission Agenda 03-02-2021 (Workshop Meeting)AGENDA
SPECIAL MEETING - MONTICELLO PLANNING COMMISSION
Tuesday, March 2nd, 2021 - 5:00 p.m.
Bridge Room, Monticello Community Center
Commissioners: John Alstad, Paul Konsor, Andrew Tapper, Alison Zimpfer, and Eric
Hagen
Council Liaison: Charlotte Gabler
Staff Angela Schumann, Steve Grittman (NAC), and Ron Hackenmueller
1. General Business
A. Call to Order
2. Workshop Agenda
A. 2021 Planning Commission Workplan
B. Land Use Basics
3. Adjournment
Planning Commission Agenda: 03/02/21
2A. 2021 Planning Commission Workplan Workshop, cont. (AS)
A. REFERENCE AND BACKGROUND:
Each year, the Planning Commission is asked to adopt a workplan setting its
direction for the coming year. The workplan outlines activities of the
Commission which lie beyond its required review of land use applications.
During its February workshop, the Commissioners indicated a need to better
understand their role, authority and tools prior to setting a 2021 workplan. In
addition, the Commissioners indicated that the workplan table presented could be
simplified to those strategies within their authority. Finally, Commission
requested that once the strategies were pared down to workplan tasks, that a
prioritization be offered to allow the Commission to focus their work.
With that in mind, staff have developed the following resources for Commission's
knowledge and development of the 2021 Workplan.
1. Planning Commission Role & Authority
a. Land Use Basics Workshop
City Planner Steve Grittman will provide an overview of land use
basics at the March 2nd workshop. Topics to be covered include
municipal land use and planning authority, the pyramid of
discretion, legislative vs. judicial actions, and types of land use
applications. The supporting data for this presentation is included
with item 2B.
b. Land Use Controls: Planning Commission Tools and
Resources
Staff has prepared a summary of the principal planning tools used
by the Monticello Planning Commission. The summary includes
information on the Commission's specific authority, as well as a
digital link to the Monticello planning tool and League of MN
handbook reference documents. NAC's workshop presentation
and "Planning and Zoning Basics" are also helpful in
understanding Planning Commission authority and application
processes.
2. Planning Commission Workplan
a. Workplan Purpose and Format
The Planning Commission, EDA and IEDC each adopt annual
workplans to help direct their work throughout the year, consistent
with both the City's strategic goals as an organization, as well as
the Monticello Comprehensive Plan. The purpose of the
Planning Commission Agenda: 03/02/21
workplans is to connect the work of the body to the overall goals
of the city and community. For the Planning Commission, the
workplan outlines proactive work the Commission may take on in
addition to its role in responding to land use applications.
The annual Commission workplan begins consistently by stating
the Planning Commission's role and purpose.
The workplan is then organized into the four main areas of
Planning Commission's work influence or spheres of authority:
• Organizational
• Comprehensive planning
• Zoning ordinance
• Subdivision ordinance
Finally, each year, the workplan outlines areas of additional study
or research requested by the Commission. This information is
provided by staff or consultants throughout the year as time allows
in either workshops or at a regular meeting.
The draft 2021 Workplan follows this basic outline.
b. Draft 2021 Workplan & Prioritization Table
As a result of the adoption of the Monticello 2040 Vision + Plan,
much of the Commission's discretionary work in the next 0-5 years
will be driven by the Goals, Policies and Strategies provided
within the Plan. To a great extent, the 2021 workplan will
therefore need to rely on the Implementation Chapter of the
Monticello 2040 Plan, which contains the Goals, Policies and
Strategies of the plan.
To support implementation of the Plan, the Monti2040 strategies
can be incorporated as workplan tasks, organized within the four
areas of Commission's authority.
Changes and additions to the draft workplan from January's
workshop are shown in redline on the draft 2021 Workplan.
With feedback from the Commission, the workplan has been
revised to include the specific Monti2040 strategies relating to
three of the four areas of Commission responsibility:
organizational work, the subdivision ordinance, and the zoning
map. These strategies have been removed from the table presented
last month and inserted directly into the workplan. Strategies that
were more long-term or related to site plan reviews were also
removed from the table presented in January.
Planning Commission Agenda: 03/02/21
The table is therefore significantly streamlined, limited only to
those Monti2040 strategies related to the zoning ordinance. The
zoning ordinance is the fourth and last area of the workplan that
requires completion.
The inclusion of zoning ordinance strategies as tasks in the
workplan is well-timed. As noted in the January workshop, over
the next year, we will be migrating the city's zoning ordinance into
a digital format consistent with the rest of the city's code. Given
this shift, it is an ideal time to review the ordinance and make
amendments consistent with the strategies in the Comprehensive
Plan.
A prioritization schematic has been added to the zoning strategies
table.at Commission's request. Commission should follow the
instructions on the table and complete the prioritization and
provide to Community Development staff no later than the
March 2nd workshop. Commissioners can email or deliver their
tables to staff prior or bring them to the March 2nd meeting.
The prioritization will allow staff to complete the draft workplan
for April consideration.
A final workshop prior to the regular meeting in April will be held for follow up
discussion/questions on Land Use Basics and discussion on the draft Planning
Commission Workplan for adoption.
B. ALTERNATIVE ACTIONS:
None at this time. Planning Commission is asked to review all materials and
complete the prioritization of zoning ordinance strategies for the March
workshop.
D. SUPPORTING DATA:
A. Land Use Control: Planning Commission Tools & Resources
B. 2021 Workplan, Draft
C. 2021 Workplan Zoning Strategies Prioritization Table
D. Monticello 2040 Vision on a Page
E. Monticello 2040 Vision + Plan Chapter 9 - Implementation Chapter
CITY OF
Monticello
Land Use Controls
Planning Commission Implementation
Tools and Resources
This guide provides an overview of the land use control tools used by the City of
Monticello, along with the specific responsibility of the Planning Commission in
relationship to the control, and reference resources for more information.
Comprehensive Plan
The Comprehensive Plan is the city's blueprint for growth and is the foundation upon
which development and land use decisions are based. It contains long term goals for the
City's growth and the implementation strategies to help the City achieve those goals. It is
the official adopted policy regarding the future location, character, and quality of physical
development, and the conservation and enjoyment of the natural environment.
A Comprehensive Plan is also a guide to decision making. It provides the City a means for
balancing social, economic and environmental benefits with the costs associated with
development. Most other City policies and regulations regarding growth and
development are based on the Comprehensive Plan. All development -related ordinances
and regulations, such as the Zoning Ordinance and design guidelines, must be consistent
with and implement the goals of the Comprehensive Plan.
From a more technical perspective, the Comprehensive Plan is used by the City Council,
Planning Commission, other boards and Commissions, and City staff to inform and guide
policy decisions regarding land use, development and infrastructure improvements within
the City. Developers, real estate professionals and property owners also use the
Comprehensive Plan as an informative document to understand the City's vision and
policies regarding land use and development.
See excerpt from the Monticello 2040 Plan:
Municipal Comprehensive Planning in Minnesota is enabled by Section 462.353 of the
Minnesota State Statute. In this legislation, cities are granted the authority to prepare,
adopt and amend a comprehensive plan "for guiding the future development and
improvement of the municipality". Cities are also provided authority to implement that
Plan via a zoning ordinance or "other official actions" specified in the statute.
11Page
The duty to prepare the comprehensive plan falls squarely on the Planning Commission
with support from planning staff and consultants. Once a Plan is prepared, The City
Council then has the authority to adopt the Plan. The Planning Commission also has the
responsibility to periodically review the plan and provide amendments as necessary. The
Statutes are not specific regarding the contents of the Plan, but the primary
implementation tool is the zoning ordinance or other "official controls" Land use decisions
and capital improvements are required to be in conformance to the Comprehensive Plan.
State Law requires that the Comprehensive Plan contain guidelines for the timing and
sequence of the adoption of official controls necessary to ensure planned, orderly, and
staged development and redevelopment consistent with the Land Use Chapter. Official
controls may include ordinances establishing zoning, subdivision controls, site plan
regulations, sanitary codes, building codes and official maps.
Authority of the Commission:
The Planning Commission is responsible for holding public hearings on the adoption of
and amendments to the Comprehensive Plan, and making formal recommendations to
the City Council regarding the adoption and amendments.
References:
Monticello 2040 Vision + Plan: https:Hwww.ci.monticello.mn.us/monti204O
League of MN Cities Handbook: https://www.Imc.org/wp-
content/uploads/documents/Comprehensive-Planning-Land-Use-and-City-Owned-
Land.pdf
Zoning Ordinance/Map
A zoning ordinance regulates the use of land within a municipality consistent with its
Comprehensive Plan; it controls the ways in which the land can be developed and what
purposes the zoned land can serve. Monticello has adopted zoning regulations for the
purpose of carrying out the goals, policies and strategies of the land use elements of the
Monticello Vision + Plan. Historically, zoning was also established for the specific
purpose of protecting the public health, safety, and general welfare through the
establishment of regulations governing land development and use.
Monticello's zoning ordinance cites these two specific purposes, as well as others; see
excerpt from Chapter 1, Section 3(A):
(1) To implement the policies of the City's Comprehensive Plan,-
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(2) To protect the public health, safety, and general welfare of the community and its
people through the establishment of regulations governing development and use;
(3) To promote orderly development and redevelopment;
(4) To protect the established use areas;
(5) To provide adequate light, air, and convenience of access to property;
(6) To prevent congestion in the public right-of-way;
(7) To prevent overcrowding of land and undue concentration of structures by regulating
land, buildings, yards, and allowed residential densities;
(8) To provide for compatibility of different land uses;
(9) To provide for administration and enforcement of this ordinance;
(10) To provide for amendments;
(11) To prescribe penalties for violation of such regulations; and
(12) To define powers and duties of the City staff, the Board of Adjustment and Appeals, the
Planning Commission, and the City Council in relation to the Zoning Ordinance.
In Minnesota, the authority to adopt zoning ordinances is established in the Municipal
Planning Act, found in Minnesota Statutes, 462.356. The Municipal Planning Act
establishes a uniform and comprehensive procedure for adopting or amending and
implementing a zoning ordinance.
Zoning dictates what types of properties can exist or be developed within a particular
area within a municipality. For example, some areas (districts) are zoned strictly for
single-family homes (while accommodating some exceptions such as religious buildings
or parks), while certain mixed -used districts may allow for specific business and
residential uses to exist in the same area. Zoning considers the relationship and
transitions between uses, such as residential, commercial and industrial. Zoning
ordinances also regulate development performance standards, such as maximum
building height, minimum lot size, setbacks and building materials, etc.
Monticello also adopts an official zoning map. The zoning map illustrates the various
zoning districts enumerated within the zoning ordinance. The adoption of an official
zoning map is referenced within the ordinance, Chapter 3, Section 1.
Authority of the Commission:
The Planning Commission is responsible for holding public hearings on the adoption of
and amendments to the zoning ordinance. The Commission makes formal
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recommendations to the City Council regarding the adoption and amendment of zoning
ordinances. The Planning Commission also holds hearings on conditional use permits
and variance requests as outlined within the zoning ordinance. The Commission acts as
the Board of Adjustment and Appeals for variances and administrative appeals as
outlined by the zoning ordinance.
References:
Monticello Zoning Ordinance & Maps:
https://www.ci.monticello.mn.us/index.asp?SEC=6EAAF2C4-E5F1-46EE-8310-
5E14734F8566&DE=AD42E810-5E1 E-4664-AFFF-E111 FOOE42B9&Type=B BASIC
League of MN Cities Handbook: https://www.Imc.org/wp-
content/uploads/documents/Zoning-Guide-for-Cities.pdf
Subdivision Ordinance and Platting
A subdivision is a plan for a distinct area of land for the purpose of sale, rent, or building
development.
Monticello's subdivision ordinance specifies the standards of the city related to the
layout and development of a given area, including lot number and configuration,
location of structures, public dedications and their standards (such as streets,
easements, trails or parks), public and private utilities, and grading, drainage,
stormwater management and erosion control.
These subdivision plans are most often developed through a plat, in both preliminary
and final plat stages. In come cases, the subdivision ordinance allows for administrative
subdivision processes such as lot combinations or lot line adjustments, without a plat
requirement. However, all subdivision must meet the subdivision ordinance standards
and requirements.
As noted by the League of Minnesota Cities, "Subdivision regulations allow cities to
ensure that a new development or redevelopment meets the standards of the city for a
safe, functional and enjoyable community. Importantly, subdivision regulations can help
the city preserve and protect vital natural resources."
Authority of the Commission:
The Planning Commission is responsible for holding public hearings on preliminary
plats, and making formal recommendations to the City Council regarding preliminary
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plats. The Commission will also review and make recommendations regarding
administrative subdivisions. The Commission is also responsible for holding public
hearings on amendments or variances to the subdivision ordinance.
References:
Monticello Subdivision Ordinance:
https://codelibrary.amIegal.com/codes/monticellomn/latest/monticello_mn/0-0-0-
23559
League of MN Cities Handbook:
https://www.Imc.org/wpcontent/uploads/documents/Subdivision-Guide-for-
Cities.pdf
Natural Resource Inventory & Assessment
Monticello has completed and adopted a Natural Resources Inventory & Assessment
(NRI/A), which is recognized as a planning tool within the Monticello 2040 Vison + Plan.
An NRI/A identifies and describes the natural resources within a community, including
wetlands, water courses, woodlands and open spaces. It provides the basis for land
conservation planning, allows natural resource information to be included in local
planning and zoning, and provides communities with a strong foundation for informed
decision -making regarding its natural resources. In some cases, the document is an
inventory only; in Monticello the inventory was supplemented by an assessment, which
provides greater detail on the quality of the resources and references for
implementation strategy.
Monticello's NRI/A identifies ecologically significant resources, such as high -quality
wetlands or undisturbed native plant communities, but also recognizes culturally
significant natural resources.
The NRI/A is used to evaluate development proposals, ranging from plat requests to
individual site planning. It is also used as a background in park and pathway planning
considerations.
Authority of the Commission:
The adoption of the NRI/A does not require a public hearing. However, the Planning
Commission had the opportunity to review the document prior to adoption and
references the document as part of plan review. The City Council adopts the NRI/A.
5 1 P a g e
References:
Monticello NRI/A: https://www.ci.monticello.mn.us/index.asp?SEC=9AF55B49-F75F-
4603-BF18-B4B51AB330E3&Type=B BASIC
Building. Fire & Property Maintenance Codes
The Minnesota State Building Code is the minimum construction standard required
throughout Minnesota, pending its adoption by a local jurisdiction. Monticello has
adopted the Minnesota State Building Code, with specific amendments. AS stated on
the Department of Labor and Industry website: "The State Building Code is intended to
create a level playing field for the construction industry by establishing the
construction standard for all buildings in the state." The Minnesota Fire Code and
International Property Maintenance Code, with amendments specific to Monticello
have also been adopted with amendments by the City of Monticello. Taken together,
these codes further the purpose of protecting health, safety and general welfare.
Authority of the Commission:
Although the Planning Commission has no direct authority over or responsibility for
these codes, which are reviewed and adopted by the City Council, they are noted here
as additional tools used to regulate the development and use of land. The Building
Code is applied and enforced in Monticello by the Department of Building Safety &
Code Enforcement. The Fire Code is jointly reviewed for compliance by the Department
of Building Safety & Fire Marshal. The Chief Building Official and Fire Marshal review
land use applications with the intent of informing applicants of future building and code
requirements as part of the customer service process. The Department of Building
Safety and Code Enforcement also administers the International Property Maintenance
Code and public nuisance ordinances.
References:
Monticello Building Codes:
https://codeIibrary.amlegaI.com/codes/monticellomn/latest/monticello mn/0-0-0-23328
Monticello Fire Code:
https://codelibrary.amlegaI.com/codes/monticellomn/latest/monticello mn/0-0-0-21371
Monticello Nuisance Code:
https://codelibrary.amlegal.com/codes/monticellomn/latest/monticello mn/0-0-0-20682
6 1 P a g e
CITY o F Monticello Planning Commission
2021-2025 Workplan
Monticello DRAFT
The Monticello Planning Commission is established to advise the Mayor, Council and
Community Development Department in matters concerning planning and land use matters; to review
and make recommendations regarding the Monticello Fempr-ensive 2040 Vision + Plan,
subdivision and zoning ordinances and other planning rules and regulations; to establish
planning rules and regulations; and to conduct public hearings.
2424-Purpose Statement:
The Planning Commission will support efforts to implement the Monticello 2040 Vision + Plan. The
Planning Commission will work collaboratively with the City Council, and other City boards and
commissions, and community stakeholders in its work to achieve the Plan and the strategic goals of
the city.
Organizational & Training
• Attend in-house Land Use Basics training.
• Complete the Basics of Land Use and My Roles as a Planning Commissioner through Fusion
Learning Partnership.
• Understand land use application types and process.
• Continue to support regional planning as identified by the Monticello 2040 Vision + Plan.
o Implementation Chapter, Land Use, Growth & Orderly Annexation
■ Strategy 1.10.1 -Consider the outcomes of regional planning initiatives and
participate in processes resulting from the efforts of the Central Mississippi
River Regional Planning Partnership.
Initiate and/or facilitate organizational projects in support of the Monticello 2040 Vision +
Plan.
o Implementation Chapter, Land Use, Growth & Orderly Annexation
■ Strategy 1.1.1 -Facilitate biannual meetings to serve as a "Development
Forum" with interested property owners, realtors, builders and developers to
discuss long-term planning, real estate market conditions,
Strategy 1.1.2 - Develop and publish a'Development Opportunity Map' for
use by the public, property owners and development community that
identifies vacant and potential development opportunity sites, as well as
1IPage
pending and approved projects with the City and MOAA.
Comprehensive Plan
• Support the implementation of the Monticello 2040 Vision + Plan through implementation of
the Goals, Policies and Strategies identified within the Plan.
Zoning OrdinancelMap
Complete the recodification of the Monticello Zoning Ordinance, including
consideration of amendments as recommended in the Goals, Policies and Strategies of
the Implementation Chapter of the Monticello Comprehensive Plan.
o [INSERT FROM TABLE, BASED ON PRIORITIZATION]
• Consider amendments to the Monticello Official Zoning Map in support of the Monticello
2040 Vision + Plan guided land use, including, but not limited to the following.
o Implementation Chapter, Land Use, Growth & Orderly Annexation
■ Strategy 2.7.1 - Amend the Zoning Map to be consistent with the Future Land
Use Map and identify areas where mixed -density residential uses are
appropriate.
Subdivision Ordinance
Complete a review and amendment of the Monticello Subdivision Ordinance, including
consideration of amendments as recommended in the Goals, Policies and Strategies of
the Implementation Chapter of the Monticello Comprehensive Plan as follows.
o Implementation Chapter, Land Use, Growth & Orderly Annexation
■ Strategy 2.5.1 - Implement measures to slow down or "calm" traffic on
local streets by using design techniques and measures to improve traffic
safety, provide eyes on the street, and enhance the quality of life in
Monticello's neighborhoods.
■ Strategy 3.8.2 - Require pedestrian and bike connections in new
commercial development.
Strategy 6.5.1 - Conduct regular review of parkland allocation and ensure
sufficient amount of land is designated for parks and recreation activities in
the City as the population increases.
Research & City Department Update Topics
As resources and time allow, the Planning Commission will consider research and information
related to the following topic areas, which are listed in priority order.
Planning Commissioners are asked to insert topic area ideas below:
21Page
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Planning Commission Agenda: 03/02/21
2B. Land Use Basics Workshop
A. REFERENCE AND BACKGROUND:
City Planner Steve Grittman of Northwest Associated Consultants will be on hand
to provide in-house training on basic land use concepts.
B. ALTERNATIVE ACTIONS:
None.
D. SUPPORTING DATA:
A. Land Use Basics Presentation
B. Planning and Zoning Basics
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Planning and Zoning Basics
Information for
Planning Commissioners
and others interested
in the regulation of land use
in Minnesota
Northwest Associated Consultants, Inc. 2018
Table of Contents
Introduction ............................... 3
Meeting Conduct and Robert's Rules of Order ...... 4
Comprehensive Plan ......................... 6
Rezoning and Zoning Amendments ............... 7
Conditional Use Permits ...................... 9
Interim Use Permits ......................... 10
Variances................................10
Findings of Fact ............................ 12
"60 Day Rule" ............................. 13
Subdivisions and Plats ...................... 15
Planned Unit Development ................... 17
Nonconformities ........................... 18
Annexation ............................... 19
K
Introduction
This material has been assembled as a "primer" on planning and zoning for
Planning Commission members and City Council members, as well as interested
City staff and members of the public. Our intent is to provide a usable background
for typical planning and zoning issues faced by the City's Planning Commission.
Public Health, Safety, and Welfare. Planning and zoning activities are conducted
as a part of the "police powers" - protection of public health, safety, and general
welfare. Because the way land is used by private property owners can affect other
property owners and the public, courts have interpreted the "police power" to
include the regulation of land use.
The City's authority to regulate land use is a power granted by the State
government. The Legislature determines what powers the City has, and does not
have. All of this power exists within the context of the U.S. Constitution which
defines and restricts governmental authority.
Some of the most evident ways that land uses affect the public is through the need
for clean water supply, sanitary waste systems, stormwater drainage, and the need
for public street systems. In addition, private land use creates the need for fire
protection and law enforcement. In short, private land development creates a
significant demand on the public for services. As a result, the public has a
significant interest in ensuring that land is used in a responsible and efficient
manner.
Land use regulation is part planning theory and part property rights law. To help
both public officials and citizens in understanding the complexities of land use
regulation, we have compiled this material covering some of the most common
planning issues that are faced by growing communities. This material does not
cover everything, nor does it cover all aspects of each issue. Moreover, each
community has its own set of specific regulations and requirements. Nonetheless,
we hope that it provides a solid underpinning so City officials will feel comfortable
addressing the situations faced on a monthly basis.
K3
MEETING CONDucrAND "ROBERT'S RULES OF ORDER"
Public meetings are conducted generally under "Robert's Rules of Order", usually
modified somewhat for convenience to allow a less formal meeting environment.
The purpose of these rules are to create an orderly process for information
gathering, public participation, and ultimately, decision -making. In most
communities, the chair assumes a significant amount of latitude in modifying the
strict rules, but should be ready to submit to a more formal process when preferred
by the group, or at any time when better information will possibly result. A simple
rule of thumb is to err on the side of better information, or more information, in
determining the amount of formal process to apply to a given situation.
A typical meeting agenda will consist of some or all of the following elements:
A. Chair's announcement that the meeting is open - a "Call to Order"
B. Approval of Minutes of previous meeting(s)
C. Announcements, if any
D. Adoption of the Agenda (members have the opportunity to recommend the
addition of items to the published agenda)
E. Consideration of Agenda Items
a. Chair announces the agenda item
b. Chair asks for a presentation of the Staff Report
c. Chair asks for a presentation from the Applicant
d. Chair opens the public hearing (this may be done on the initiative of the
Chair (some jurisdictions hold a formal vote to open the hearing, but
this is not required)
e. Chair announces the format for public comment, including the
following:
i. Public comments must germane to the issue.
ii. Speakers must address their comments and questions to the
Chair and Commission, not to the applicant or other individuals
at the meeting.
iii. Speakers are directed to focus on new information relevant to the
issue and avoid repetitive comments.
iv. Audience must not interrupt the speaker with comments,
applause, or other disruptions.
v. Speakers must identify themselves by name and address,
including representation of any interested party.
vi. Speakers must speak from the microphone/podium to ensure
that they are heard by Commission members, recording
equipment, and those observing the meeting electronically.
vii. Planning Commission members may ask questions of speakers
while they are at the podium.
viii. Answers to speakers' questions are typically held until all
speakers have been heard. This rule is often modified to avoid
many speakers asking identical questions.
E
f. Speaker testimony is taken as called on by the Chair - the City may
require speakers to have signed in to speak, although this is often
waived in smaller hearings.
g. Chair closes the public hearing at the end of public testimony (see item
d. above). In the alternative, the Chair may ask for a motion to
continue the hearing to a future specific time and date when additional
information is required prior to Planning Commission action.
h. Discussion. Once the hearing is closed, the Chair invites members to
discuss the issue. The purpose of discussion is to ensure that adequate
information has been gathered to formulate a motion. The Commission
may ask staff, applicant, or members of the public for clarification of
specific points.
F. Following discussion, a motion for action on the item should be made. Motion
may be to recommend approval, recommend denial, or to table action. If the
hearing was continued (see g. above), a motion to table action would be in
order. The Planning Commission should be aware of any "60-Day Rule"
issues relating to the amount of time for a decision.
a. A motion for action must be seconded. Occasionally, a member may
request that a specific motion be amended to include additional
language, such as a new condition or to refer to certain findings. For
most circumstances, this is done by requesting that the motion -maker
and the second accept a "friendly amendment", without separate votes
on the amendment.
b. If the motion -maker and/or second do not accept the "friendly
amendment", a member may make a motion to have a formal vote to
amend the original motion - this is a rare occurrence in informal
meeting settings such as a Planning Commission.
c. Once the language of the motion is agreed to, the Chair calls for a vote.
For most zoning -related items, a simple majority of members present
carries the item.
d. Special situations:
i. If a motion to deny or approve fails to receive a simple majority
(either gains only a minority or ends in a tie vote), the Chair
should declare that the motion fails, and ask those who voted
against the motion to state their reasons on the record. Under
this scenario, the item goes to the City Council without a
recommendation from Planning Commission, with the stated
reasons servings as the "findings".
ii. In the alternative, a member may make a substitute motion and
the Commission may consider it separately.
G. After all items on the adopted agenda have been disposed of, the Chair may
entertain a motion to adjourn. This is considered a non -debatable motion,
and should proceed directly to a vote after it has been seconded.
61
COMPREHENSIVE" PLAN
The City's Comprehensive Plan is a document that describes the community's vision
of itself in the future. The enabling planning statutes (found in Minn. Stat.
§462.351 through §462.364) give a community the authority to plan and manage
land use and related facilities (such as transportation, utilities, and other functions)
to accomplish specific objectives. These objectives are quoted as follows:
The legislature finds that municipalities are face with mounting problems
in providing means of guiding future development of land so as to insure
a safer, more pleasant and more economical environment for residential,
commercial, industrial and public activities, to preserve agricultural and
open lands, and to promote the public health, safety, and general
welfare.
This statute recognizes that the development of land is not merely a private venture.
Instead, private landowners create a partnership with the public to develop the land
- the landowner provides the private land (as well as the capital to develop it) and
public agrees to provide access to properly maintained roads, highways, sanitary
sewer treatment, water supply, stormwater management systems, parks and
recreation, police and fire protection, and other public functions. Because the
public has such a great stake in the ongoing cost of serving private land uses, the
legislature has granted communities the ability to plan for development and make
sure that the public's costs will be manageable in the future.
In the seven county Twin Cities Metropolitan Area, the legislature has established
an overarching set of requirements for local Comprehensive Plans. The purpose of
these additional requirements, found in Minn. Stat. Minn. Stat. §473, especially
§473.175, is to help ensure that development in the various metropolitan
communities is consistent with abutting municipalities, and to ensure that local
plans are consistent with metro -wide systems and goals, such as regional highways,
transit, parks, wastewater systems, water supply, and housing. A municipality's
Comprehensive Plan, and requests for its amendment, are routinely reviewed by the
Metropolitan Council in this regard.
Metro or Non -Metro? The primary difference between metro and non -metro
counties in Comprehensive Plan impact relates to priority of Plan or Zoning. In the
seven county area, the Comprehensive Plan is considered primary in the event there
is a conflict between the Plan and the Zoning Ordinance. For instance, if the
Comprehensive Plan calls for an area to be guided commercial in the land use plan,
but the City has designated the area as a residential zoning district, courts will give
deference to the Comprehensive Plan land use designation over the zoning.
In contrast, in the communities not in the Twin Cities seven county area have the
reverse condition - Zoning regulations (and map) are prioritized over the
Comprehensive Plan. In these localities, the Comprehensive Plan serves more as a
guide plan, but land use disputes rely on the zoning to determine the actual
[1
effective regulations. However, most zoning actions include reference to consistency
with the Comprehensive Plan, so there is some force in the Plan that filters down
into individual planning and zoning decisions.
Land Use Plan. The most recognizable component of the Comprehensive Plan is the
Land Use Plan. This plan identifies various areas of the community as being guided
for various types of land use, including land needed for public uses. However, the
Comprehensive Plan is usually made up of many other important sections,
including transportation and community facilities plans, housing plans, and natural
resources plans, to name just a few.
Goals and Policies. Perhaps the most important (although often overlooked)
chapter of the Comprehensive Plan is the statements of Goals and Policies of the
community. This section really defines what is meant by all of the rest of the text
and maps that comprise the Plan document. The Comprehensive Plan, at its
essence, is a policy document relating to land use and community development,
although the maps and pictures usually get the most attention.
In considering various development proposals, the Planning Commission and City
Council should be able to identify specific goal or policy statements that they believe
are accomplished by the project being presented. If a project cannot meet the goals
and policies, it is a clear indication that the project is not consistent with the
community's Comprehensive Plan (even if the land use is proper). At this point, the
City needs to decide how the project should be changed to be consistent, or
sometimes, whether the Comprehensive Plan needs to be considered for an
amendment.
REZONING AND ZONING AmENDmENTS
Zoning Amendment - A change to either the text or the map of the Zoning
Ordinance.
Zoning is the most commonly used technique in implementing the goals and policies
of the Comprehensive Plan. The Zoning Ordinance is not a goal in itself - it should
be thought of as the legal means of ensuring that the goals of the Comprehensive
Plan are carried out by private landowners. Together with the Subdivision
Ordinance, the Zoning Ordinance works to regulate almost all forms of land use and
development. Whereas the Subdivision Ordinance regulates the conversion of raw
land to a condition in which it is ready to be built upon, the Zoning Ordinance
regulates the physical occupation of the land by a building or use.
Types of Amendments. Zoning Amendments are made in one of two categories: (1)
Amendments to the text of the City's Zoning Ordinance, which apply generally; and
(2) Amendments to the map, which apply to specific property. The City's Zoning
Ordinance includes a section which establishes the process for adopting a zoning
amendment, including the process and the standard for evaluating the merits of the
proposed change.
rA
The standards for considering the rezoning are generalized, and do not include
details of a particular development scheme. It is not permissible to approve
rezonings with conditions. Common rezoning criteria are as follows:
i. Traffic levels capable of being handled on existing roadways.
ii. Utility demands capable of being served with existing utility capacity.
iii. Land Use compatibility with adjoining property.
iv. Consistency with Land Use guide plan.
V. Environmental concerns (air, soil, water) and potential hazards to the public.
vi. Impacts on Schools, Parks or Open Space.
Rezoning land from commercial or industrial to residential requires a simple
majority of the City Council. On the other hand, rezoning land from residential to
commercial or industrial requires the "super -majority" - technically two-thirds of
the eligible voters. In most communities, a super -majority consists of a 4/5 vote of
the City Council.
Voting on an Amendment. Where a member is absent, but otherwise eligible to
vote, the super -majority requirements would remain 2/3 of the full council. Where
the City Council has been reduced to four members by a vacancy on the Council, or
a member who is considered ineligible due to a conflict of interest, the requirement
is 2/3 of the remaining eligible members. The rules relating to "super -majority" can
be complicated when members are missing, or are ineligible due to conflict of
interest. The City's Attorney should be consulted in these cases to ensure that the
proper voting requirements have been met.
It should be noted that for the Planning Commission, no super -majority vote comes
into play. As an advisory board, the Commission passes on its recommendation by
simple majority vote.
It is important to remember that zoning amendments are adopted by enactment of a
new ordinance. This includes both text amendments and rezonings of property.
The City needs to put the proposed amendment in the form of an ordinance, adopt it
by the required vote, then publish it as with any other ordinance before it becomes
effective.
Challenges. Zoning amendments are occasionally litigated. The standard of review
is "rational basis", and the basis Cities should rely on is direction from the
Comprehensive Plan. The factors listed above, and the quality of the record
documenting the proposal's consistency with those factors, will often be
determinative in legal disputes involving rezoning requests.
E:3
CONDITIONAL USEPERMITS
Conditional Use - A type of land use in a particular district which is presumed to
be allowed, but requires special, additional standards and review due to the
existence of some aspect of the use which may create a nuisance or place an
extraordinary burden on public services. Conditional Use Permits, once granted,
are considered to be permanent, without need for renewal, so long as the conditions
applied to the permit are maintained. A Conditional Use Permit may be transferred
to other persons, again as long as they continue to meet the original conditions.
The exception to this "permanence" is when the use lapses for more than one year.
In that case, the property must apply for a new CUP if they wish to reinstate the
use.
Disputes. Conditional Use Permits are, by far, the most commonly litigated zoning
matter. Whereas the development of Comprehensive Plans allows the City to
exercise the most discretion, Conditional Use Permits allow, typically, the least. The
general standard for the City is that if the conditions are met by the permittee, the
City has very little discretion to deny the CUP request. Moreover, conditions must
be rationally related to the impacts created by the proposed use.
Basis of Review. The Zoning Ordinance applies two sets of conditions in the review
of any Conditional Use Permit application - general conditions applying to all CUPS
which serve as the basis for findings of approval or denial, and specific conditions
listed with each individual use in the Zoning Ordinance district section.
The first set of conditions is as follows:
i. The proposed action has been considered in relation to the specific policies
and provisions of and has been found to be consistent with the official
Comprehensive Land Use Plan.
ii. The proposed use is or will be compatible with present and future land uses
of the area.
iii. The proposed use conforms with all performance standards contained
herein.
iv. The proposed use will not tend to or actually depreciate the area in which it
is proposed.
V. The proposed use can be accommodated with existing public services and
will not overburden the City's service capacity.
vi. Traffic generation by the proposed use is within the capabilities of streets
serving the property.
The second set of conditions is listed with the use in each district. The typical
review will be whether the specific standards are met, then whether the general
conditions are met. It is with this set of general conditions where the City may
exercise some discretion, but only in the context of the neighborhood and the
Comprehensive Plan.
01
In addition to the stated conditions listed in the Zoning Ordinance, the City can
impose other conditions on the use, so long as those conditions are intended to
correct a specific deficiency of the project that is within the City's regulatory
authority. For instance, the City might choose to require specific landscaping
requirements on a proposed use that creates an identified visual conflict with a
neighboring use. However, the City could not arbitrarily decide to require a new
business to restrict its hours of operation, unless the restriction was directly related
to a specific public health, safety, or welfare issue.
In summary, Conditional Uses need to be addressed carefully, and the City uses
most of its discretion in establishing the use in the ordinance. Additional conditions
placed on such uses must be specific, and tied to a quantifiable issue. Vague
Conditional Use Permits create confusion for users, as well as for future City
Councils in trying to fairly apply the regulations.
INTERIM USE PERMITS
Whereas Conditional Use Permits are considered to "run with the land" when all of
the conditions are complied with, Interim Use Permits may be granted for a specified
period of time. The municipality must be able to ascertain a specific date or event
that will result in the termination of the IUP. The statutes require that the
applicant must agree to any conditions deemed necessary by the municipality. As
such, it is good practice to have a signed development agreement that specifies
those conditions, including the termination date and/or event that memorializes the
applicant's required consent.
VARIANCES
Variance - An approved departure from the standard imposed by a (usually)
dimensional zoning regulation, such as size, area, length, or bulk.
Variances are somewhat less likely than Conditional Use Permits to be the subject
of litigation, because the City has more latitude to determine the meaning of the
standard for variance approval, namely, the existence of "special conditions", and
"reasonable use". It is important to keep in mind that the City's standard zoning
regulations are presumed to allow reasonable use of property. Only special, unique
conditions that interfere with reasonable use can impel the City to depart from its
standard regulations.
The most common concern related to variance decisions is based on "precedent" -
whether the applicant is being treated similarly to like properties in like situations.
To ensure that people are being treated similarly, variance approval just because
something seems like a nice idea should be avoided.
i[t
Uniqueness. Variances are intentionally made to be difficult to obtain, based on the
premise that the City establishes zoning standards for the protection of public
health, safety, and welfare. Therefore, a departure from the regulations should be
considered rarely, only where unique, special conditions are apparent which would
deny the applicant reasonable use of the land in question.
Amendment Rather Than Variance. If the circumstances that generate a variance
request are common, the City should enact a regulation which applies to all
properties rather than regulate by variance. If the regulations allow a reasonable
use, the purposes of the ordinance are realized without the need for a variance.
Practical Difficulties and Reasonable Use. Probably the most routine aspect of
variance consideration is the focus on a non -economic basis for the request. The
ordinance states that a variance may be considered where application of the
regulations creates practical difficulties in putting the property to reasonable use.
This standard is typically applied by considering whether a fully conforming use can
be made of the property without the variance.
For instance, can a conforming house with a two car garage be located on a
residential property without the need for a variance? If it can, then a variance
request from something outside the typical requirements might be viewed as a
matter of convenience rather than reasonable use. The practical difficulties that
interfere with the proposed use must be "non -economic". This requirement is made
since virtually everyone may make an economic claim - the application of the
standards regulations are too costly to comply with.
Standards of Review. The primary considerations for variance review are as
follows:
(a) Undue hardship will result if the variance is denied due to the existence
of special conditions and circumstances which are peculiar to the land,
structure or building involved.
(1) Special conditions may include exceptional topographic or water
conditions or, in the case of an existing lot or parcel of record,
narrowness, shallowness, insufficient area or shape of the
property.
(2) Undue hardship caused by the special conditions and
circumstances may not be solely economic in nature, if a
reasonable use of the property exists under the terms of this
Chapter.
(3) Special conditions and circumstances causing undue hardship
shall not be a result of lot size or building location when the lot
qualifies as a buildable parcel.
(b) Literal interpretation of the provisions of this Chapter would deprive the
applicant of rights commonly enjoyed by other properties in the same
district under the terms of this Chapter, or deny the applicant of the
ability to put the property in question to a reasonable use.
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(c) The special conditions and circumstances causing the undue hardship do
not result from the actions of the applicant.
(d) Granting the variance requested will not confer on the applicant any
special privilege that is denied by this Chapter to other lands, structures
or buildings int he same district.
(e) The request is not a use variance.
( Variance requested is the minimum variance necessary to accomplish the
intended purpose of the applicant.
It is important to notice that each of these standards must be met in order to qualify
for variance consideration. Variances should be put to this test rigorously in order
that the City applies it ordinances equitably. Finally, the City may still deny a
variance if despite these conditions, the result would be contrary to the
Comprehensive Plan. However, where the refusal to grant a variance results in a
situation which makes it impossible to use the land under the ordinance, the City
may be found liable for a "regulatory taking", effectively requiring the City to
compensate the property owner for the fair market value of the property.
FINDINGS OF FACT
Findings of Fact - The legal, written substantiation for a land use decision.
One of the most critical factors in making land use decisions, whether rezonings,
variances, conditional use permits, or subdivisions, is that the decision meets the
legal standard for local government land use regulation. This is often called the
"rational basis" standard of review. In short, a local government may regulate land
use so long as there is a rational basis for the regulation, and the regulation bears a
reasonable relationship to the attainment of a legitimate governmental interest.
Violations of this test are often called "arbitrary and capricious".
For many land use decisions, there are numerous reasons the decision was made.
Each of these reasons may be completely legitimate, and based on evidence
available to the Planning Commission or City Council. However, if a decision is
challenged, and the City has not made its decision accompanied by written findings
of fact, the Court may throw out the City's decision, and put itself in the City's
place. There are a number of standards to apply when making the findings:
1. Findings need to be made "contemporaneously" with the decision. The
City does not have the latitude to decide an issue one month, then adopt
formal findings the next. Recent court decisions have made it clear that
the City needs to support its decision with findings at the time of the
decision. This can make things difficult if the 60-day calendar is running
out.
2. Findings need to be based on evidence submitted as a part of the City's
hearing process. This means that if the City is going to decide a permit
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request based on a particular reason, that reason must have been a part of
the debate or submissions made to the City. It does not necessarily have
to have been brought up by the applicant. Planning Commissioners or
Councilmembers may raise an issue during the debate, and having arrived
at a conclusion based on that issue, may include it in the findings.
3. Findings need to be written. This means that the City should rely on a
written record documenting the debate and the decision, and the record
should include the findings. This may be in the form of a separate
resolution, or it may be imbedded into the meeting minutes.
4. Findings should be as specific as possible. They should include references
to specific policies or components of the City's Comprehensive Plan or a
specific ordinance standard. Vague findings may be better than none, but
only a little better.
If a City makes clear, written, contemporaneous findings of fact with their land use
decisions, a court will most often rely on the City's record in reviewing a challenged
City decision. And, if the findings meet the rational basis test, the City's decision
will most likely withstand challenge.
"60 DAYRULE"
This rule is a statute (Minn. Stat. § 15.99) which requires local governments and
state agencies to respond to zoning applications within (usually) 60 days of
application. There are a number of complications to this law.
1. The City has 15 days from the time that an application is made to
determine whether or not the application is complete. The City must notify
the applicant within this time period of any incompleteness. The 60 day
period does not begin until the application is complete. However, if the
City does not notify an applicant as to incompleteness within the first 15
days, the application is deemed complete as a matter of law, and the
calendar starts running as of the original date of submission.
It is important to note that completeness does not mean acceptability. The
application just has to have addressed the required items - the subsequent
review process will determine whether the project is acceptable under the
City's regulations.
2. If the City cannot come to a final decision prior to the end of the first 60
days, for almost any reason, it may extend the review period by an
additional 60 days, if the applicant is notified in writing prior to the
expiration of the first 60 day period. There appears to be little constraint
on the "quality" of the reason - a simple explanation that the City's review
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schedule does not permit adequate time for the City Council to act properly
on the item is sufficient.
3. The City cannot "automatically" notify the applicant of a 60 day extension.
The City is required to review the application enough to make a reasonable
determination that the first 60 days will be inadequate. Therefore, a
separate letter should be sent after the material is received.
4. If the City reaches the end of the 120 day review period, including a
noticed extension, it must make a final decision, or the application will be
considered approved as submitted. For complex projects, negotiations
often occur between the City and the applicant, and can take several
weeks. Most Cities will ask the applicant to sign a form letter waiving the
60-day rule if a decision can not be made. The City can be quite
persuasive with this request as the alternative to further consideration is
usually to deny the proposal.
5. Subdivisions have their own 120 review calendar listed in the Statutes.
However, most Cities apply the 60-day rule to subdivisions just to be on
the safe side.
6. Cities are required to notify an applicant in writing of a denial of a permit,
including the reasons for denial. This notice is required to be provided
within the statutory period. It is a safe assumption that approvals with
conditions must also be notified in this manner.
This notification can have consequences that cities need to be careful of.
Imagine that a City Council is meeting on the final day of the timeline.
They would essentially have to present the written notice of denial, along
with the reasons, to the applicant at the meeting to meet the deadline.
The 60-day rule is not necessarily difficult to comply with, but it requires attention
to avoid a trap of automatic approval. The safest option is to be careful with the
application package and notify the applicant of deficiencies in the application to
delay the start of the calendar.
For multi -part applications, it is best to require that each part is a separate
application. For instance, with Planned Unit Developments, the ordinance provides
for a Concept Stage review, Development Stage review, and Final Stage PUD. For
complex projects, there is no way that the project can be submitted, reviewed,
revised, and reviewed again within the full 120 day period. As such, most Cities
separate the stages into distinct applications.
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SUBDIVISIONSAND PLATS
Subdivisions are any division or combination of land parcels. A "Plat" is a specific
type of subdivision that involves the filing of new title information with the County
Recorder that results in all future legal descriptions referring to the mapped Plat,
rather than historical description information.
There are generally three types of subdivision actions that a City will consider. The
simplest is sometimes referred to as a "Minor Subdivision". These actions usually
involve no more than two parcels, and may include lot combinations, lot line
adjustments, and occasionally, the splitting of one platted lot into two new parcels.
This type of approval is typically not applied to unplatted land due to the
complicated legal descriptions that can result. The County Recorder may reject
subdivisions when the legal description is too long or complex.
In certain circumstances, where the subdivision is clear and simple, Minor
Subdivisions are eligible to be approved by the City staff, relieving the applicant of
the procedural requirements of Planning Commission and City Council review.
Minor Subdivisions are commonly permitted by what is referred to as a "Metes and
Bounds" certificate of survey. These surveys are prepared by registered surveyors,
and include a map of the property and a legal description that provides an exact
description of the parcel or parcels in question. The survey will usually show lot
dimensions, existing buildings, and existing easements that may exist on the
property.
The second type of subdivision action is a "Registered Land Survey". This is a legal
method of subdivision for registered property, also known as "Torrens" property.
Torrens parcels are registered with the County, and have had new registered title
certificates prepared. These are in contrast to the more common "Abstract"
property, in which an abstract of the title to the property exists that lists the chain
of title back to its original conveyance (often from the original United States
government land grant).
The third type of subdivision is the Plat. Platting re -titles the subject property into
new lots and blocks, and eliminates previous underlying lot lines (it should be noted
that easements and streets need to be separately vacated). The platting process
typically consists of a Preliminary Plat and a Final Plat. In many instances, a City
will ask for a sketch plan for preliminary concept review, prior to a formal
Preliminary Plat application.
An approved Preliminary Plat conveys specific rights to a property owner, and as
such, should be reviewed carefully. This stage of review will usually include a plat
drawing showing the layout of the subdivision; a grading and drainage plan that
identifies the changes to the existing grade and stormwater management impacts; a
utility plan that provides for preliminary sanitary sewer and water designs; a street
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plan that identifies the street profile; and a landscaping plan that identifies new
landscaping and erosion control planting in the subdivision.
Minnesota courts have determined that the approval of a Preliminary Plat gives the
developer a reasonable expectation that he or she will be able to develop the
property as proposed. It is common for small adjustments to be made between the
Preliminary Plat and the Final Plat, but the City needs to make sure that it has
addressed all of its major issues in its review and approval of the Preliminary Plat.
Because many Preliminary Plats get approved with a number of technical
conditions, it is usually a good idea to require that a revised and corrected
Preliminary Plat is submitted for City records and reference.
There are several issues to look for when reviewing new subdivision proposals:
1. Does the street system provide for an adequate number of new and future
street connections to surrounding land? Most planning recommendations
look for residential neighborhoods that limit traffic to less than 500 vehicle
trips per day - 250 trips per day is considered the more optimal threshold.
If the street design creates a high number of trips past some lots,
additional street connections should be considered. As a general rule,
more connections result in better and more even traffic distribution. Cities
often hear people argue for fewer connections over fear of increased traffic.
The opposite is actually the case.
2. Does the regional street system support the number of lots in the
subdivision, or should a new collector route be considered in the area?
3. Does the design of the individual lots allow for comfortable building
placement? Occasionally, lot designs may meet the City's technical
regulations, but due to unique considerations, result in difficult building
sites. Most cities consider newly platted lots to be "variance -proof', that is,
there should be no need to consider variances to make reasonable use of a
new lot - it is presumed to be buildable as approved.
4. Does the subdivision make reasonable consideration for the existing
character of the land? Heavily graded projects, woodland areas that are
being eliminated for additional lots, elimination of significant views of
surrounding countryside or water features, or other similar characteristics
indicate a subdivision that is not making the best use of the property. The
City has a stake in managing these issues.
S. Does the subdivision minimize the impact on the City's utility and
maintenance system? Some subdivision designs can make it difficult for
the City to serve the project once constructed. Issues such as snow-
plowing, maintenance access to stormwater ponding areas, fire -fighting
capability, access for emergency vehicles, and other issues need to be
considered to ensure the protection of the City's future residents. It is
tempting to think of the subdivision's defects as the problem of the
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developer in selling the lots. But these problems will become the City's
when the future new residents raise concerns over poor design.
6. What kinds of public use might be necessary in the subdivision, or in the
area? Should the City require a dedication of park land or trail right of
way? Is there a need for the construction of sidewalks or other
improvements not commonly found in other areas?
7. What kinds of ideas might improve the livability of the subdivision? How
can the existing landscape be capitalized upon to ensure the best
neighborhood? Or, what additional amenities might be considered to
improve the area?
PLANNED UNIT DEVELOPMENT
Planned Unit Development is a zoning technique that permits a developer and City
to negotiate the applicable zoning standards for a project. PUD implies a number of
elements in any project design - those below are a generalized outline of common
elements:
a. The City will allow flexibility from some of its zoning standards, in
exchange for a higher standard in other areas.
b. The flexibility is intended to result in a project of superior design and
amenity than would otherwise be possible if basic zoning regulations were
to be applied.
C. PUD is not intended as a method of merely skirting around inconvenient
regulations.
d. The process is designed to allow for the integration of several disparate
project elements, resulting in better coordination of public facilities, and
hopefully, more efficient use of land and public resources.
e. The process ends with a development contract that accompanies an
associated Zoning Ordinance amendment for the construction of the
project.
In many zoning ordinances, there are two types of Planned Unit Development
projects. Both follow the processing section of the Zoning Ordinance, but they differ
in the nature of the regulation. The first is a rezoning of the property to a PUD
zoning district. In this type of PUD, The City is essentially writing a new zoning
ordinance that applies only to this district. The ordinance will list which uses are
allowed, what development standards apply, and any other requirements of the
district. While this sounds complex, most PUD District ordinances refer to some
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other existing zoning district and the master development plans, and then list only
additions or deletions.
The second type of PUD is actually a Conditional Use Permit allowing the use of
PUD flexibility on a development parcel, keeping the underlying zoning district in
place. In this type of PUD, the base zoning district regulates the allowable uses in
the district, and sets out the general conditions. The site plan and other documents
are then used to identify the areas where flexibility is being approved. Currently, St.
Francis' zoning ordinance does not make provision for this type of PUD - specific
amendments to the zoning regulations would be necessary to accommodate it.
For many PUD projects (especially residential projects), one of the most common
areas of flexibility requested is for the use of private streets. With private street
design, an association is formed of the owners in the project, and the association
becomes responsible for street maintenance, and many other aspects of project
operation. For a developer, the advantage of using a private street design is a
marked increase in potential density. Setbacks from the edge of a private street
need not be a strict as might be typical with public streets, and the street itself will
typically require less than half of the area of a public street right of way. The City
should feel confident in requiring significant upgrades to the design and amenity
package of such a PUD, given the increased density that usually accompanies this
type of project.
The key for the successful use of Planned Unit Development is to be able to identify
the specific, tangible benefits from the use of PUD design. These benefits may
include upgraded architecture (both building design and materials), significantly
increased landscaping, or additional open space offsetting greater building density.
In many cases, the developer may be adding specific amenities to the project,
including recreational facilities, or similar elements. When these types of
"upgrades" can not be easily identified, the City should reconsider the flexibility
being requested by the applicant.
NONCONFORMITIES
A common issue that faces Planning Commissions in the application of zoning
regulations is how to treat existing buildings or land uses that are no longer allowed
by newer zoning requirements. Such buildings and uses are called
"nonconformities", and have specific rights under State law.
Until recently, the municipality applied a "50% Rule" to all nonconformities. Under
this rule, a community was permitted to require that any existing nonconformity be
removed and replaced only by a fully conforming use if it was destroyed by more
than 50% of its value. Thus, a property owner who lost most of a building through
damage by storm, accident, or even one's own demolition, was required from that
point on to comply with the current zoning requirements.
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The newer rule expands the rights of the owners of nonconformities. The Statute
explicitly provides that nonconformities may be replaced or improved, but not
expanded, so long as the owner has applied for a building permit within 6 months,
and completed the work within 12 months. After this timeframe, the 50% Rule
comes back into play. This is true even for the removal of nonconformities that are
removed by the owner intentionally - natural or accidental damage is no longer a
factor.
One aspect of this issue relates to the "legality" or illegality" of the use or building.
The nonconforming rights accrue only to those uses that are "legal nonconforming",
that is, they must have been legally established at the time of their construction or
occupancy, according to the rules in place at that time. If they were never legal,
such as someone who built a building outside of the regulations that would have
applied, then no nonconforming rights accrue to that use or building.
There are specific exclusions for Floodplain nonconformities that should be checked
out when applying this relatively new language.
ANNE" TION
Not technically a "planning and zoning" issue, annexation is nonetheless an
important factor for communities managing growth and development. Annexation is
a discretionary decision on the part of the City. While the interests of the Township
government and subject property owners can affect the process, a City can not be
forced by either to accept an annexation (the State theoretically could, but this
would be extremely unusual).
The State of Minnesota sets out annexation rules in Chapter 414 of the State
Statutes. There are essentially three types of annexation:
1. Orderly Annexation
2. Annexation by Ordinance
3. Contested Case Annexations
With Orderly Annexation, the City and Township work together to establish a set of
conditions under which annexations can occur. These conditions usually include
rules about contiguity and the ability to serve the site with public utilities. Other
common conditions include specific geographic areas that are eligible or off-limits,
and whether the City will provide a fee to the Township to mitigate the Township's
loss of tax base.
Orderly Annexations can occur one at a time, with an agreement reached between
City and Township as each property comes up, or, more comprehensively - subject
to a larger Orderly Annexation plan. In either case, the City and Township will
create an agreement and a joint resolution effecting the annexation. The resolution
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is forwarded to the State of Minnesota Department of Administration's Office of
Municipal Boundary Adjustments for certification.
The second type, Annexation by Ordinance, is an annexation decision between the
City and the property owner. There are a few specific conditions to Annexation by
Ordinance, in which case no direct Township involvement occurs. These conditions
include:
a. The subject parcel is no more than 120 acres in size;*
b. 100% of the property owners of the parcel(s) in question petition for the
annexation; and
C. The subject parcel is contiguous to the current City limits.
*There are now some additional limitations affecting "serial" annexations.
When these conditions are met, the City can call for a public hearing to annex the
parcel through the adoption of an Ordinance. While the Township may object to the
annexation during the hearing process, it does not have the authority to "veto" or
otherwise interfere with the decision. If the City adopts the ordinance in compliance
with the statutory requirements, the State's Office of Municipal Boundary
Adjustments then certifies the annexation.
The third type of annexation is sometimes referred to as a "contested case"
annexation. In these situations, the City is considering an annexation that does not
comply with the Annexation by Ordinance rules, and the Township will not agree to
a joint resolution or "Orderly Annexation". Contested Cases are treated like trials,
held before an Administrative Law Judge. Prior to trial, however, the City and
Township must conduct a series of negotiation sessions to attempt to come to an
agreement.
If no agreement is reached, the judge reviews the evidence presented, and rules
based on specific criteria laid out in the statutes. These criteria are centered
around whether or not the area "is or is about to become urban or suburban in
character". This phrase is somewhat ambiguous, however. As a result, Cities most
often support their contested case annexations with studies demonstrating growth
demand and shortage of available land area, and the cost of providing services to
unincorporated areas. These trials have become rarer, and are very expensive and
time consuming.
One additional point about annexation policy relates to the City's ability to recover
the costs of growth. Once a property has been annexed, the fees charged for
development services (such as sewer and water extensions, road improvements, etc.)
must meet specific and strict statutory requirements for "proportionality" to the
impacts created by the development. However, property owners do not have any
implicit right to annex into a City. As such, the City can negotiate a development
fee agreement with the owner/ developer of annexing land to cover extraordinary
costs that would otherwise be spread to the general City taxpayer. This is an
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important factor to remember when considering annexation agreements and
requests.
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