Workshop Item - Erik Thorvig, Community Development Director
Title
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Planning and Zoning/Comprehensive Plan Presentation
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Background
Planning and zoning/development approvals are a primary function of the City Council. These types of approvals are dictated by city ordinances and Minnesota State Statutes and arguably have more legal parameters than other types of approvals the Council considers.
The following is general information on planning and zoning approvals. Given that this information hasn’t been formally presented to this group of city councilmembers, and certain questions/concerns/issues that have come up in the last year with planning cases, staff felt it was important to provide this information to assist in educating the city council. Staff will provide a more in-depth presentation on these items at the workshop.
Approval Process
The City Council has final approval on development/zoning items including:
• Subdivisions/Plats
• Rezoning Requests
• Comprehensive Plan Amendments
• Conditional Use Permits
• Variances
Applicants must submit an application and subsequent materials to the Planning Department by the application deadline. Application deadlines are typically the second Friday of each month. If an application is deemed complete, the item is placed on the following months Planning Commission agenda. For example, if the applicant submits by the January deadline, the item is placed on the February Planning Commission agenda and the City Council agenda in March.
Minnesota Statute 15.99 requires cities to act on an application within 60-days of when the application is deemed complete. For subdivisions, cities have 120 days. If a city fails to act on an application within the required timeframe, applications are deemed approved. This law is in place to prevent cities from delaying action and complicating the process for applicants.
Minnesota State Statute 462.357 requires the city to hold a public hearing on all items listed above. In most instances, the Planning Commission is the body that holds the public hearing. The Planning Commission then makes a recommendation to the City Council on the application.
In certain instances, such as conditional use permits where there are no neighboring residential properties and the request is straight-forward, items are brought directly to the city council where a public hearing is held. This expedites the process for businesses looking to occupy a space.
Minnesota Statute 462.357 also outlines requirements for who public hearing notices are sent to. It states “A notice of the time, place and purpose of the hearing shall be published in the official newspaper of the municipality at least ten days prior to the day of the hearing. When an amendment involves changes in district boundaries affecting an area of five acres or less, a similar notice shall be mailed at least ten days before the day of the hearing to each owner of affected property and property situated wholly or partly within 350 feet of the property to which the amendment relates.”
As a general rule, staff will abide by the statutory requirement for notification to property owners. Staff will use discretion when applications are submitted to determine if the notification area should be expanded. This is typically done when the notification area does not include an entire development with attached housing (townhomes). If it’s determined the area needs to be expanded, staff will use natural buffers, roads, etc. to determine boundaries of the notification area. It’s important to be consistent with notification requirements to prevent arbitrary decision making which could be criticized by either the neighborhood or developer.
In 2019, the City adopted a Neighborhood Open House Policy. The policy requires an open house to be held for applications that request the following: a rezoning, land use amendment, plat, or conditional use permit for new industrial, commercial, or multi-family development adjacent to or within a residential neighborhood. The open house is hosted by the applicant/developer. Staff does not typically attend. The city council is allowed to attend, but to primarily listen. The intent is to allow the developer to introduce the project to the neighborhood and receive feedback on ways the project could be adjusted prior to the Planning Commission meeting based on concerns. The open house is held after the application is deemed complete and prior to the Planning Commission meeting.
The City makes additional efforts to notify the public of an application including placing a sign on the property with a phone number to call for information and posting public hearing notices on the City’s webpage and Facebook page. Throughout the process, the City often receives written feedback from residents/property owners. These correspondences are provided in the Planning Commission and City Council packets. A summary of the neighborhood open house is also provided. Minutes from the Planning Commission meeting are provided in the City Council packet.
Zoning/development approvals require a majority vote by the City Council. When a comprehensive plan amendment is requested, a super majority (5 of 7 councilmembers) is required. When a rezoning is requested to change zoning from residential to commercial, a super majority (5 of 7 councilmembers) is also required. This procedure is outlined in the Blaine City Charter and Minnesota Statute.
Level of Discretion on Land Use Approvals
Land use litigation is costly and often puts city officials in the difficult position of dealing with controversies that may displease people, no matter the outcome. City officials can help themselves through these controversies by educating themselves about land use regulation authority, and the process and procedures necessary to exercise it. An important consideration is how much authority the city has over any given land use decision. A city has much broader authority when creating its land use plans and ordinances than it does when administering the same. Consequently, it is important for a city official to be aware of what authority the city is acting under whenever making a particular decision.
When creating, adopting and amending land use plans and zoning ordinances, a city is making law by exercising so-called “legislative” authority. The council sits as a body of elected representatives to make plans and laws (ordinances) for the entire community to advance health, safety, and welfare. When acting legislatively, the council has broad discretion and will be afforded considerable deference by any reviewing court. In contrast, when applying existing plans and laws, a city council is exercising so-called “quasi-judicial” authority. The limited task is to determine the facts associated with a particular request, and then apply those facts to the relevant law. A city council has less discretion when acting quasi-judicially, and a reviewing court will examine whether the city council applied rules already in place to the facts before it.
It can be helpful to visualize this as a “pyramid of discretion” that shows cities have greater discretion when making land use decisions at the base of the triangle, and less as decision-making moves up the pyramid (see attached). Discretion is greatest when officials are creating local laws and the least when officials are administering those laws. Land use disputes tend to arise most often when a city is applying laws, rather than when making law.
If a city denies a land use request, it must give written reasons for its denial at the time it denies the request. When a governing body such as a city council denies a request, it must state and provide the applicant with a written statement of the reasons for denial. The written statement of the reasons for denial must be consistent with reasons stated in the record at the time of denial. The written statement of reasons for denial must be provided to the applicant upon adoption.
Findings for denial cannot be arbitrary and need to consider requirements set-forth in the zoning ordinance, state statute and comprehensive plan.
Variances
The “pyramid of discretion” identifies that the city council has some discretion in these approvals.
A variance is a way that a city may allow an exception to part of a zoning ordinance. It is permission from the city for a departure from strict enforcement of the ordinance as applied to a particular piece of property. A variance is generally for a dimensional standard (such as setbacks or height limits). A variance may not be used to allow a use that is prohibited in the zoning district. Essentially, a variance allows the landowner to break a dimensional zoning rule that would otherwise apply.
A variance may be granted if enforcement of a zoning ordinance provision as applied to a particular piece of property would cause the landowner “practical difficulties.” Whether the applicant would be caused practical difficulties is determined by the statutory three-factor test.
If the applicant does not meet all three factors of the statutory test, a variance should not be granted. Also, variances are only permitted when they are in harmony with the general purposes and intent of the ordinance, and when the terms of the variance are consistent with the comprehensive plan. The practical difficulties test consists of the following three criteria.
• The property owner proposes to use the property in a reasonable manner, but one which is not allowed by the city’s zoning ordinance.
• The landowner’s situation is due to circumstances unique to the property not caused by the landowner. Uniqueness generally relates to the physical characteristics of the piece of property and economic considerations alone “do not constitute practical difficulties.”
• The variance, if granted, will not alter the essential character of the locality. This factor generally contemplates whether the resulting structure will be out of scale, out of place, or otherwise inconsistent with the surrounding area.
If a variance applicant can demonstrate the practical difficulties test is met, that the variance would be in harmony with the general purposes and intent of the zoning ordinance, and that the variance is consistent with the comprehensive plan, the city may grant the variance.
Staff understands that the preference of a city council is often to approve variances however it’s important to note that there are specific legal findings required to approve a variance. Staff’s recommendation is based on the legal findings required in Minnesota Statute. The city council should be cautious of approving variances and understand that it can set a precedent.
Conditional Use Permits (CUP)
The “pyramid of discretion” identifies that the City Council has some discretion in these approvals.
The zoning ordinance identifies certain conditional uses within every zoning district. Conditional uses are permitted within the district, however, require city council review to place conditions on the use that mitigate potential impacts to the health, safety and welfare of adjacent properties and the overall city. It is difficult to deny a conditional use permit request unless the council finds, based on fact (not opinion), that the CUP request does not meet the following:
1. The use shall not create an excessive burden on existing parks, schools, streets, and other public facilities which serve or are proposed to serve the area.
2. The use will be located, designed, maintained, and operated to be compatible with adjoining properties and the existing or intended character of the zoning district.
3. The use shall have an appearance that will not have an adverse effect on adjacent properties.
4. The use shall be reasonably related to the overall needs of the city and existing land use.
5. The use shall be consistent with the purposes of the zoning code and purposes of the zoning district in with the applicant intends to locate the proposed use.
6. The use shall not cause traffic hazard or congestion.
7. The use shall have adequate utilities, access roads, drainage, and necessary facilities.
Additionally, according to the League of Minnesota Cities, neighborhood opinion alone is not a valid basis for granting or denying a CUP. While city officials may feel their decision should reflect the overall preferences of residents, their task is limited to evaluating how the CUP application meets the ordinance standards. Residents can often provide important facts to help the city address whether the application meets the standards, but unsubstantiated opinions and reactions to an application are not a legitimate basis for a CUP decision. If neighborhood opinion serves as the sole basis of the decision, it could be overturned by a court if challenged.
Staff reports for these items provide information on each of the criteria to assist the city council in determining whether the proposed use has impacts.
Residential Subdivisions/Rezoning Requests
As a growing city, the City Council often will review single-family subdivision requests. Most requests come in the form of a preliminary plat (creating lots), rezoning to Development Flex (DF), and a subsequent CUP for DF which is required by the zoning ordinance to set parameters for the particular development. DF zoning allows for flexibility in lot sizes, setbacks, etc., versus the rigid zoning requirements set forth elsewhere in the zoning ordinance, specifically the R-1 Single Family district. For example, the R-1 zoning district requires minimum lot widths of 80’ and minimum lot sizes of 10,000 square feet. Most new subdivisions, in response to market demands, have narrower lots and/or smaller lot sizes and this can be accomplished through the DF zoning. Most cities utilize a similar tool referred to as Planned Unit Developments (PUDs).
Most land that is proposed for single-family subdivision is guided as Low Density Residential (LDR) in the 2040 Comprehensive Plan. As such, the proposed subdivision and rezoning requests are consistent with the Comprehensive Plan and there is little latitude for the City Council to deny the request. The City Council does have the ability to dictate design of the development through the CUP review associated with the DF zoning. For example, if the developer is proposing 60’ wide lots and the Council would prefer 65’ wide lots, this can be a requirement of the approval.
Comprehensive Plan
Minnesota Statute requires every city within the seven-county metropolitan area to prepare a comprehensive plan. Comprehensive plans are regulated through Minnesota Statute and the Metropolitan Council. Full plans are required to be updated every ten years. The last full update was approved by the City Council in 2018. Full plan updates generally take more than one year to prepare as preparation of the plan requires public feedback, multiple discussions with the city council and various reviews by the Metropolitan Council. Portions of the plan can be amended based on a change of city council policy/philosophy at any time however require process as identified earlier in this report. The Planning and Zoning 101 attachment specifically outlines the requirements, purpose, and components of the comprehensive plan.
The full version of the comprehensive plan is available on the city’s webpage.
<https://www.blainemn.gov/DocumentCenter/View/4995/2040-Comprehensive-Plan-and-Surface-Water-Plan-PDF%20>
Staff Recommendation
Review the information, listen to the presentation, and ask questions.
Attachment List
Planning and Zoning 101
Land Use Handbook