10-25-1994CITY OF RIOFIFIELD
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October 25, 1994
7:00 p.m. -- Regular Meeting
I u ll ('a11
f ppr•.><1 f' Minute,I
Regular meeting of September 27, 1994 and Study Session of October 11, 1994.
1 "uk lic• L- Ic.11 "'in
1 94 -TAP -1
MEMMI
2 PC LETTER #14
3 OPEN DISCUSSION
e)Icl 1:IUti11 c'ti
LIlafia®n Reports
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7700 Fremont Avenue - Relocate
Naegele Advertising Sign
Adult Uses Study - First Draft
Review Draft Zoning Provisions
School Board
Community Services Advisory Commission
HRA
City Council
AdHoc 135/1494 Traffic Committee
Auxiliary aids for individuals with disabilities are available upon request. Requests must be made at least 96
hours in advance to the Administrative Service's Director at 861 - 9702."
PLANNING COMMISSION MINUTES
MEMBERS PRESENT: Chairperson Daniel Linnihan; Commissioners: Pamela Dmytrenko,
Timothy Erlander, David Gepner, Thomas Scaglia, Kristal Stokes,
and Paul Wasko
MEMBERS ABSENT: Morris Nilsen II and William Snyder
COUNCIL LIAISON: Martin Kirsch, Mayor
STAFF PRESENT: Bill Weaver, City Planner; and Shawn Drill, Zoning Administrator.
The Planning Commission meeting was called to order by Chairperson Linnihan at 7:05
p.m.
APPROVAL OF MINUTES
M/Scaglia, S/Dmytrenko to approve the minutes of the regular Planning Commission
meeting off August 23, 1994.
Motion carried: 7 -0
M/Erlander, S/Wasko to approve the minutes of the September 20, 1994 study session
with the following, correction on Paragraph 6 of Page 3: add "gun shops and check cashing
businesses," after "pawn shops ".
Motion carried: 7 -0
PUBLIC HEARINGS
None.
Planning Commission Minutes
September 27, 1994
Page 2
Chairperson Linnihan suggested rearrangement of the agenda. The other commissioners
concurred.
LIAISON REPORTS
School Board: Commissioner Dmytrenko stated that the School Board is planning a
community open house of the schools for January 14, 1995. She also stated that a preliminary
enrollment report indicates that the District is down by 23 students from original projections.
Community Services Advisory, Commission: Commissioner Stokes stated that the CSC is
discussing proposed improvements for Fremont Park, as well as prioritizing park needs for the
neighborhood.
HRA: Commissioner Stokes stated that the HRA recently reviewed a preliminary
proposal for a dental office redevelopment project at the Tip Top Car Wash site, 66th Street and
Bloomington Ave. No formal action was taken.
Commissioner Wasko stated that he would like staff to provide the Planning
Commissioners with the HRA Packet regarding the upcoming CSM/Feldman redevelopment
decision to be made by the HRA in October.
City Council: None.
Ad Hoc Traffic Committee: None.
OLD BUSINESS
ITEM #1 Continue review of Section 520 of the draft zoning code
Mr. Drill noted that discussion would commence at subsection 520.29, where the
Commission left off on September 20, 1994.
The Commission reviewed the proposed changes to the C -2 and C -3 district provisions.
Mr. Drill said he would provide a response to all the discussion items of the September 20
review and this review at the next study session scheduled for October 11,' 1994.
Planning Commission Minutes
September 27, 1994
Page 3
NEW BUSINESS
ITEM #2 Draft schedule for adult uses study
Mr. Drill presented a hand -out entitled "Schedule for Adult Uses Study /Ordinance ". He
noted that the schedule outlined specific dates for undertaking of the study an implementation of
any resulting ordinance. He also noted that the schedule was tentative, and subject to adjustment
depending on certain uncontrollable factors (e.g., legal review, cancellation of meetings).
The Commission reviewed the hand -out and concurred that the draft schedule provided an
acceptable and realistic time -frame.
Commissioner Erlander volunteered to present, or play a part in presenting, the study,
findings, and recommendation to the City Council at their December 5 study session.
The Commission requested that staff provide a status report of the drafting of the findings
at the next two study sessions.
ITEM #3 Site plan lesson
The Commission was provided with a hand -out which detailed landscaping and parking lot
standards. Using overheads, Mr. Weaver reviewed elements involved in designing a parking lot,
including throats, parking layout and angles, and circulation patterns. He also reviewed the
Richfield Landscape Guidelines with respect to screening of parking areas, loading docks, and
dumpsters.
ADJOURNMENT
The meeting was adjourned by unanimous consent at 9:15 p.m.
Planning Commission Secretary
PLANNING COMMISSION MINUTFS
Study Session
October 11, 1994
MEMBERS PRESENT: Chairperson Daniel Linnihan; Commissioners: Timothy Erlander,
David Gepner, William Snyder, Kristal Stokes, and Paul Wasko
MEMBERS ABSENT: Pamela Dmytrenko, Morris Nilsen II, and Thomas Scaglia
COUNCIL LIAISON: None.
STAFF PRESENT: Byron Wallace, Community Development Director; Bill Weaver,
City Planner, and Shawn Drill, Zoning Administrator.
The Study Session was called to order by Chairperson Linnihan at 7:00 p.m.
ITEM #I Status report -- Study on adult uses
Mr. Wallace briefed the Commission on progress in drafting the study and related findings.
He noted that a first draft will be reviewed by the Planning Commission for input at the October
25 meeting.
There was also discussion about the recent situation in Hopkins, where an adult video
store opened in violation of that city's ordinance. An injunction was secured by the video store
owner preventing Hopkins from applying its zoning laws until a court determines the validity of
their ordinance. Hopkins is currently seeking a court order to close the video store while the case
is pending.
Commissioner Snyder requested to hear the cassette tape of the September 20 study
session relating to "adult uses ", as he was out of town on that date. Mr. Drill said he would
provide a copy of the tape to Commissioner Snyder by October 14, 1994.
ITEM #II Review of Section 525 (Industrial district) of the
draft zoning code
Following up on the September review of the commercial districts, Mr. Drill gave the
Commissioners a hand -out entitled "Discussion Responses" which outlined the discussion items
Study Session Minutes
October 11, 1994
Page 2
relating to the draft C -2 and C -3 provisions. The hand -out also provided staff responses and
recommendations for making changes to the draft. The Commissioners reviewed the hand -out
and concurred with the recommended changes.
The Commissioners were given a hand -out entitled "Proposed Zoning Amendments" for
the "I" industrial district. This hand -out described the proposed changes with explanatory
statements. The Commissioners reviewed each proposed change, item by item. The Commission
concurred with the proposed changes to the "I" district provisions, and suggested no changes for
the time being.
ITEM #III Site planning lesson project
Mr. Weaver gave the Commissioners hand -out materials to read relating to development
scenarios for a restaurant and a bank site. The Commission then broke up into two groups to
develop site plans on prescribed plot parcels. The Commissioners overlaid the plot parcels with
sketching paper and drew up likely development plans for the restaurant and bank sites. Building
setback, parking layout, landscaping, and stacking space were discussed.
Next Study Session
Chairperson Linnihan noted that the November study session needs to be rescheduled
because the second Tuesday falls on a general election day (Nov. 8). The Commissioners decided
to reschedule the November study session to Tuesday, November 15, 1994 at 7:00 p.m.
ADJOURNMENT
The meeting was adjourned by unanimous consent at 9:20 p.m.
Planning Commission Secretary
r--
01'11111 CITY OF R10HRELD
P«nninG oommission
Action Request
Item: #1 Agenda Section: Public Hearing
Case: #94 -TAP -1 Date: October 25, 1994
Petitioner:
Location:
Type of Request:
Zoning:
Land Use:
Comp. Plan:
GENERAL INFORMATION
Naegele Outdoor Advertising
7700 Fremont Avenue South
Transitional Activity Permit
C -3 (high density commercial)
Vacant
Freeway strip
References: (see attached Citations section for excerpts)
Zoning Code: Section 520.57 outlines the transitional activity permit process.
City Code: Section 416.09 regulates outdoor advertising displays.
HRA Letter: HRA Letter No. 72 outlines the lease arrangement for the advertising sign.
ACTION
Proposed Change: Approval of the transitional activity permit, in conjunction with special
approval from Council, would allow Naegele to relocate the advertising sign
that is currently located on the CSM Phase I site (former Maki property) to
the southern portion of the Cloverleaf site, 7700 Fremont Avenue.
Staff
Recommendation: Approve the transitional activity permit with stipulations.
HISTORY
Public Notice: Notice of the Planning Commission's consideration and public hearing was
mailed to all property owners within 350 feet of the subject property.
Public Hearing: The Planning Commission will conduct a public hearing on October 25,
1994, at 7:00 p.m. in the Richfield City Hall Council Chamber, 6700
Portland Avenue South..
Hearing Examiner: Not applicable
City Council: Planning Commission action would set a City Council public hearing date of
November 14, 1994.
ANALYSIS
Background' The subject advertising sign was constructed in 1984 on the site of the
Cutler Animal Hospital, 7738 Colfax (former Maki property). The sign,
owned by Naegele, was permitted on this site under a lease arrangement
with the Cutler Animal Hospital. The advertising sign is a unipol mounted
double -face "V" sign. The sign face measures 14 feet high by 48 feet long.
In 1987, Richfield amended its sign ordinance, making the subject
advertising sign nonconforming to the zoning district, height and setback
requirements, and required distance from interstate highways.
Earlier this year, the Cutler site was purchased for the CSM Phase I
Redevelopment Project, requiring the advertising sign to be removed from
its current site.
Proposal: Naegele is requesting the relocation of the advertising sign to the Cloverleaf
site under an agreement with the Housing and Redevelopment Authority
HRA).
The sign would be moved to the west approximately 450 feet from its
current location.
L%UeS: The relocated sign would be the same type and size as the existing sign.
A transitional activity permit is required to allow relocation of the
nonconforming structure. The Council must also grant special approval for
sign height, and sign location with respect to proximity to interstate
highways and a church.
RECOMMENDATIONS
Recommended
Action:
Preferred: Recommend that the City Council approve the transitional activity permit
with the following stipulations:
1. That the transitional activity permit shall expire on October 31, 1997, or
such earlier time as determined by cancellation of the lease.
2. That the HRA and Council approve all necessary actions related to the
sign relocation.
asiS: 1. The City Attorney has reviewed and approved the applicant's process to
seek relocation of the advertising sign.
2. The lease agreement with the HRA is satisfactory to properly protect the
City's interests.
3. The relocated sign will be the same type and size and the current sign.
4. Due to the CSM Redevelopment Project, the HRA /CSM has a relocation
obligation for this advertising sign.
Findings of Fact: 1. The transitional activity is in conjunction with an existing use which is
allowable in the district as a nonconforming use.
2. The transitional activity will maintain the vitality and economic success
of the applicant's business during the transition of the C -3 district.
3. The transitional activity will not have an adverse impact upon
development of land within the C -3 district in the manner intended for
the district under the City's land use regulations or its comprehensive
plan.
4. The transitional use will not materially increase the potential public cost
of development within the C -3 district.
S. The transitional activity will be no less compatible with the surrounding
uses than the existing advertising sign, nor will it have additional
adverse impacts on surrounding properties. It will be in compliance the
regulations applicable to the C -2 district, except for those items granted
special approval by the Council.
Alternative: Recommend that the City Council deny the request with a finding that the
proposal would have an adverse impact on surrounding properties or
potential redevelopment of the C -3 district.
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ZONING CODE:
520.31. C -3 high- density commercial district. Subdivision 1. Subsections 520.31 through 520.57 apply to the
C -3 district. (Amended, Bill No. 1989 -10)
520.57 Transitional Activity Permits. Subdivision 1. Purvo . The City Council recognizes that the
development potential within the C -3 district may require an extended period of transition to be fully realized.
The City Council further recognizes that it may be appropriate and desirable to permit, subject to the conditions
and limitations of this subsection, the owners of lands within the C -3 district to engage in certain activities with
respect to the land, the structures or the uses during the transition period which will both permit commercial
enterprises within the C -3 district to remain viable but which will not have the effect of either delaying the
transition or increasing the public costs connected with such transition. This subsection is intended to establish
the circumstances under which certain transitional activities may take place and to set forth the regulations,
limitations and conditions applicable to such activities.
Subd. 2. Transitional Activities. The extension or expansion of a nonconforming use or structure or the
development of a nonconforming parcel shall be referred to as transitional activities.
Subd. 3. Permit Required. It shall be unlawful for the owner or occupier of any land within the C -3 district
to engage in any transitional activity without having first obtained a permit to do so. - It shall be unlawful for the
owner or occupier of such land to engage in any transitional activity in contradiction to the terms and conditions
of any issued transitional permit.
Subd. 4. Application for a Transitional Activity Permit shall be made to the director on forms provided by the
City and shall contain or be accompanied by the following:
a) a site plan drawn to scale showing the dimensions of the parcel and the dimensions and locations of all
structures;
b) in instances where the site is to be utilized in connection with a use or structure located on a contiguous
parcel, the site plan shall contain the same detail for the contiguous parcel;
c) the proposed uses;
d) the proposed modifications, alterations, renovations or improvements to be made in connection with the
transitional activity, and the estimated cost of each;
e) the time for completion of all modifications, alterations, renovations or improvements;
f) evidence of ownership or interest in the property; and
g) the fee specified in Appendix D of this Code. -
h) the material they have to provide would include an estimated market value before and after, the change in
taxes before and after, and change to potential cost of public development.
Subd. 5. Public Hearing. The provisions of subsection 520.35, subd. 5 shall be applicable to public hearings
concerning the issuance of Transitional Activity Permits.
Subd. 6. Criteria and Standards. A Transitional Activity Permit shall not be granted unless the City Council
makes the following findings:
a) the transitional activity is in connection with an existing use or structure allowable in the district as either
a permitted or nonconforming use or structure;
b) the transitional activity will maintain the vitality and economic success of the applicant's business during
the transition period of the C -3 district;
c) the transitional activity will not have an adverse impact upon development of land within the C -3 district
in the manner intended for the district under the City's land use regulations or its comprehensive plan;
d) the transitional activity will not materially increase the potential public cost of development within the C -3
district; and
e) the transitional activity will be compatible with surrounding uses, will have no adverse impact upon
surrounding properties, and will be in full compliances with all standards and requirements contained in this code
applicable to uses and structures in C -2 districts.
Subd. 7. Duration of Permit. Any Transitional Activity Permit granted by the City Council shall state on its
face the expiration date of such permit.
Subd. 8. Conditions. In approving a Transitional Activity Permit the Council may place conditions and
limitation upon the permit which, in the Council's discretion will assure:
a) that the transitional activity will be compatible with surrounding uses;
b) that the activity is merely of a transitional nature and will not impede the orderly development of the C -3
district; and
c) that the public costs occasioned by the ultimate development of the C -3 district will not be materially
increased as a result of the transitional activity.
Subd. 9. Revocation. The City may revoke any Transitional Activity Permit granted under this subsection.
The procedure to be followed in considering such action shall be the same as the procedure described in
Subsection 545.09, subdivision 7 of this code.
Subd. 10. Permit Not Assignable. The right to engage in transitional Activities shall be the personal right of
the permittee names on the permits; and may not be transferred or assigned to another even though such other
person or entity may succeed to permittee's interest in the land. The permit shall terminate upon such transfer or
assignment, and permittee's successor in interest in the land shall not engage in any transitional activity until such
successor has obtained a new Transitional Activity Permit. (Subsection added, Bill No. 1989 -10)
CITY CODE:
416.09. Outdoor advertising displays. Subdivision 1. Permit required. No new outdoor advertising display
may be established in the city unless a permit is first obtained. Permits may be issued by the city council only
after a public hearing preceded by the giving of 10 days notice mailed to the owners and occupants of all
properties located in whole or in part within 660 feet of the proposed outdoor advertising display. Failure to
comply with this notice requirement, however, shall not invalidate the proceedings. The council may attach
conditions upon the granting of any permit.
Subd. 2. The following regulations apply to all outdoor advertising displays within the city:
a) Outdoor advertising displays are permitted only in the C -2, PC -2, I and PI districts of the city.
b) An outdoor advertising display may not exceed 750 square feet in sign area per face.
c) An outdoor advertising display may have no more than two sign faces.
d) All outdoor advertising displays will be freestanding signs either supported by a single or double column
or some other support which has all structural and support members screened from view from all directions.
e) Outdoor advertising displays may not be located closer than 1,000 feet apart as measured along the same
side of the same roadway.
f) The sign face of outdoor advertising displays must not be visible from the boundary of any residentially
zoned property which is located entirely or partially within 300 feet of the sign face.
g) Outdoor advertising displays may not be located within 300 feet of any school or church.
h) Outdoor advertising displays must comply with the setback requirements for buildings in the zoning
district in which they are located. Any variance from those requirements will be subject to the procedure
established in the zoning code for such variances.
i) No outdoor advertising displays may exceed 27 feet in height above the ground level of the nearest street
towards where it faces. The council may permit an increase in the allowable height to a maximum of 48 feet in
the event that the following findings are made.
1) As a result of unique circumstances, a sign 27 feet in height could not be located on the premises so
as to be visible from the abutting street which it faces or that the visibility of the sign from such street could be
substantially obstructed.
2) The increased height of the sign would be unlikely to have any adverse or detrimental impact upon
traffic safety, pedestrian safety, aesthetics, or the value of other properties within the area.
0) No outdoor advertising display may exceed 65 feet in length.
k) Outdoor advertising displays shall not be closer than 660 feet from the right -of -way of any freeway within
the city (including Highways 35 -W, 494, 62 and 77). No "traveling" or changing message sign shall be located
so as to face any freeway or be visible from the freeway. Any outdoor advertising displays legally located
within 660 feet of any such freeway at the time of adoption of this provision may be replaced, subject to
compliance with the other provisions of the part and subject to the limitations hereinafter contained, either in the
same location or at another location along any such freeway provided that such alternate location is first
approved by the council. The council may approve a relocation if it finds that the relocation will lessen any
adverse impact of the sign upon traffic safety and aesthetics.
1) A permit shall not be issued for any new outdoor advertising display if such outdoor advertising display
would be within 300 feet of any other such outdoor advertising display already in existence in the interior of the
same city block or its equivalent area.
Subd. 3. Nonconforming outdoor advertising displays. Outdoor advertising displays lawfully erected and
located on the effective date of this subsection may continue subject to the following limitations:
a) Except as provided in subdivision 2, paragraph (k) of this subsection, no nonconforming outdoor
advertising display may be expanded, rebuilt, relocated or-altered without being brought into conformity with the
requirements of this ordinance. This provision shall not apply to the following circumstances.
1) The rebuilding of an outdoor advertising display which sustains damage the repair of which in the
opinion of the building official will cost less than 50% of the replacement cost of physical structure prior to the
damage.
2) Nonstructural alterations or modifications designed to improve the appearance of the sign and
changes of the sign face.
b) Any outdoor advertising display which is not used for advertising purposes for a period of more than two
years shall be deemed abandoned and must be removed by the owner of the parcel on which it is located.
HOUSING AND REDEVELOPMENT AUTHORITY
HRA Letter No. 72
October 17, 1994
Issue Statement:
Lease a portion of Cloverleaf site for an outdoor advertising
structure (sign).
Background:
Naegele Outdoor Advertising Company has a unipole mounted double
face "V" sign within the Phase I site area. It was on property
formerly owned by Mr. Maki. The HRA /CSM have a relocation
obligation for this sign.
Recommended Motion:
Adopt a motion which approves the attached lease and authorizes
the Chair and Executive Director to sign it subject to City
Council approvals (related to sign locations) as required by City
Code.
Basis of Recommendation:
1. The estimated relocation benefit due Naegele would be
22,500.
2. By leasing a portion of the Cloverleaf site to Naegele the
relocation payment may be avoided in part or totally.
If the lease is cancelled because a contract exists
between the HRA and a developer for the site no payment
is due from the HRA.
If the lease is cancelled in the second year by the HRA
the fee is $21,000.
If the lease is cancelled in the third year by the HRA
the fee is $15,000.
3. Income in the amount of $24,000 per year would be received
by the HRA (rent to November and December 1994 would be
3,000).
4. The sign to be located on the Cloverleaf site will be the
same type and size of sign as is currently located within
Phase I. (See attached map for location.)
5. The lease expires October 31, 1997. This is the same date
by which Naegele was required to remove the sign from the
Maki property because of the sign phase out program of the
City Council.
6. The lease was prepared with assistance from legal counsel
and includes several other conditions to properly protect
the HRA.
Alternative Recommendation:
1. Refuse to lease the property.
2. Modify the lease.
Discussion /Decision Mode:
The sign is within the construction zone of Phase I and must be
moved soon.
Respectfully submitted,
James` Prosser
ExecUt2v7e Director
JDP:cak
CONMIERCIAL LEASE
THIS LEASE is made the day of , 1994 by and between THE
HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF
RICHFIELD, MINNESOTA, Landlord, and NAEGELE OUTDOOR ADVERTISING
COMPANY, INC., Tenant.
WITNESSETH
In consideration of payment of the rent hereinafter specified to be paid by
Tenant, and the covenants and agreements herein contained, Landlord hereby leases
to Tenant that certain property (herein called the Premises) in the County of
Hennepin, State of Minnesota, which is located in the northwest corner of the
intersection of Emerson Avenue and 78th Street, Richfield, Minnesota.
Type of Property: Vacant Land
Legal Description: That land shown outlined in red on the attached EXHIBIT,
which EXHIBIT is hereby incorporated as part of this
lease.
including improvements, if any, for the term of 35.5 months commencing on
November 15, 1994 and ending on October 31, 1997, with the right of termination in
both Landlord and Tenant as hereinafter set forth.
IT IS AGREED:
1. RENT. Tenant shall pay to Landlord as rent for the Premises the sum
of $ 24, 000, in monthly payments of $ 2, 000 in advance on the first day of each month
during the term of this lease. Rent payments are to be mailed or delivered to
Landlord's office as follows:
Richfield HRA Make checks payable to:
6700 Portland Avenue
Richfield, MN 55423 Richfield HRA
2. PREPAID RENT. Tenant has paid to Landlord the sum of $3, 000 as rent
for November and December, 1994.
3. USE OF PREMISES. Tenant will use the Premises for the following
purpose only: Maintenance of one outdoor advertising structure, a unipole mounted
double face "V" , 14' x
481, set in concrete.
It is the sole responsibility of Tenant to comply with all laws, regulations or
ordinances imposed by any jurisdiction governing the use of the Premises. Failure
to comply will not relieve Tenant of the obligation to pay rent.
4. MAINTENANCE AND REPAIRS. Tenant shall keep the Premises in good
condition at Tenant's own expense and shall not call on Landlord to make any
improvements or repairs.
5. UTILITY CHARGES. Tenant shall pay when due all utility charges and
any other charges or expenses connected with Tenant's use of the Premises.
CAR76837
RC125 -68 1
6. NOTICES. All notices herein provided to be given, or which may be
given, by either party to the other, shall be deemed to have been fully given when
served personally on Landlord or Tenant or when made in writing and deposited in
the United States mail and addressed as follows:
To Tenant: Director of Real Estate
Naegele Outdoor Advertising Company, Inc.
1700 West 78th Street
Richfield, MN 55423
To Landord : Address listed at paragraph 1 above
The address to which notices are mailed may be changed by written notice by either
party to the other as herein provided.
7. CANCELLATION. This lease shall be subject to cancellation by Tenant
at any time during the term of this lease. Landlord may cancel this lease at any time
i) if Landlord has entered into a contract with a third party for development of the
Premises or (ii) pursuant to paragraph 17 of this lease. In all other cases, Landlord
may cancel this lease at any time after November 15, 1995. The party cancelling the
lease must give the other party notice in writing at least sixty days prior to the date
when the cancellation shall become effective. The cancellation notice shall be
accompanied by the cancellation fee, if any, required by paragraph 8 of this lease.
In the event of cancellation, any unearned rent paid by Tenant shall be returned.
8. CANCELLATION FEE. Tenant shall not be required to pay a
cancellation fee. Landlord shall not be required to pay a cancellation fee if Landlord
has entered into a contract with a third party for development of the Premises or if
Landlord cancels the lease pursuant to paragraph 17 of this lease. In all other
cases, however, Landlord shall pay a cancellation fee, the amount of which shall be
determined according to the following schedule:
Lease year in which cancelled Cancellation Fee
Cancellation during second year of lease $21,000
Cancellation during third year of lease $15,000
9. INDEMNIFICATION AND RELEASE. Tenant shall defend, indemnify,
save harmless and release Landlord and Landlord's employees from and against all
claims, demands and causes of action for injury to or death of persons or loss of or
damage to property (including Tenant and Tenant's property) occurring on the
Premises or connected with Tenant's use and occupancy of the Premises, regardless
of whether such injury, death, loss or damage is caused in part by the negligence
of Landlord or is deemed to be the responsibility of Landlord because of its failure
to supervise, inspect or control the operations of Tenant or otherwise discover or
prevent actions or operations of Tenant giving rise to liability to any person.
10. LIABILITY INSURANCE. Tenant shall maintain during the full term of
this lease a policy of public liability insurance with the following minimum limits of
liability:
Bodily injury and property damage combined $1,000,000 each occurrence
1,000,000 aggregate
CAU76837
RC125 -68 2
The insurance policy shall include the coverage provided by one of the foll ^wing
policies, consistent with the risk involved: Comprehensive General Liability;
Premises - Operations Liability; Owners', Landlords', and Tenants' Liability;
Manufacturers' and Contractors' Liability. Prior to execution of this lease by
Landlord, the Tenant shall have a Certificate of Insurance sent to Landlord as proof
of coverage. The Certificate shall name the Landlord as Additional Insured and shall
designate the leased Premises as the location covered by the policy.
11. FIRE INSURANCE. None required. Tenant will make no claim against
Landlord arising out of any loss to the Premises .
12. TAXES. Tenant shall pay all taxes, permits, and license fees, if any,
arising out of the operation and maintenance or ownership of the advertising
structure on the Premises.
13. LIENS. Tenant shall keep the Premises free and clear of all liens arising
out of Tenant's use of the Premises and agrees to protect and indemnify Landlord
against all costs, expenses, loss and damage which may in any manner result from
the filing or attempted enforcement of any and all such liens.
14. RIGHT TO ENTER. Tenant shall allow Landlord, Landlord's
contractors, agents and assigns to enter upon the Premises for any of the following
purposes: to survey the land; to take soil borings; to show the Premises to
prospective developers; to install, remove or repair utilities. If any of these
operations substantially restrict the Tenant's use of the Premises, rent shall be
reduced proportional to the restricted use of the Premises for the period of the
restricted use. Landlord or its representatives may enter without notice to Tenant,
and for such entry.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this lease or
sublet the Premises, in whole or in part, without the written consent of Landlord.
16. CIVIL RIGHTS ACT. Tenant shall not discriminate on the grounds of
race, color, sex or national origin against any person in access to and use of the
facilities and services operated or otherwise maintained on the Premises; and the
Tenant shall operate and maintain such facilities and services in compliance with Title
VI of the Civil Rights Act of 1964, and Title 49, Code of Federal Regulations, Part
21.
17. REMEDIES. If any rent is due and unpaid or if Tenant defaults in any
of the covenants or agreements on the part of the Tenant contained.in this lease,
Landlord may, at any time after default, cancel this lease, re-enter and take
possession of the Premises in the manner provided by law. Tenant will pay Landlord
all costs and expenses, including attorneys' fees, in any successful action brought
by Landlord to recover any rent due and unpaid hereunder, or for the breach of any
of the covenants or agreements contained' in this lease, or to recover possession of
the Premises.
18. HOLDING OVER. If Tenant holds over after the expiration of the term
of this lease with the consent of the Landlord, express or implied, the tenancy shall
be deemed torte a tenancy only from month to month, subject otherwise to all of the
terms and conditions of this lease so far as applicable.
CAH76837
RC125 -68 3
19. MOVING OUT. At the expiration or sooner termination of this lease,
Tenant shall remove the outdoor advertising structure and leave the Premises in as
good condition as when delivered to Tenant (except for ordinary wear and any loss
covered by insurance under paragraph 10).
20. CONDEMNATION. If the whole or any substantial part of the Premises
shall be taken or condemned or purchased under threat of condemnation by any
governmental authority other than Landlord, then the Term of this Lease shall cease
and terminate as of the date when the condemning authority takes possession of the
Premises and Tenant shall have no claim against the condemning authority, Landlord
or otherwise for any portion of the amount that may be awarded as damages as a
result of such taking or condemnation or for the value of any unexpired term of this
Lease.
21. SETTLEMENT OF CLAIMS. Tenant acknowledges that by execution of
this lease, Tenant and Landlord have reached a complete and final settlement of all
claims, whether for just compensation, interest, attorney's fees, relocation benefits,
appraisal fees, or otherwise, which Tenant has or could make against Landlord in
connection with the Landlord's acquisition by condemnation of the real estate at 7738
Colfax Avenue South, Richfield, Minnesota, pursuant to that certain action filed as
Hennepin County District Court File No. CD -2324. Tenant agrees that any breach
by Landlord of the terms and conditions of this lease shall not reinstate any claim
settled pursuant to this paragraph but that Tenant shall have a cause of action for
breach of contract against Landlord.
22. ADDITIONAL AGREEMENTS. None.
TENANT
NAEGELE OUTDOOR ADVERTISING
COMPANY, INC .
By:
By:
General Manager
Director -Real Estate
LANDLORD
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY
OF RICHFIELD, MINNESOTA
By:
Chair
By:
Executive Director
CAH76837
RC125 -68 4
CITY OF RIOFIFIELD
PumninG oommission
Letter
Item: #2 Agenda Section: New Business
PC Letter: #14 Date: October 25, 1994
GENERAL INFORMATION
Subject: Study to determine the impacts of adult businesses on the community.
Type of Request: Review first draft of study and provide feedback to staff.
References: First draft of study (attached).
i' , _•JJZJ&
Purpose: On September 27, 1994, the Planning Commission was presented a schedule to
conduct a study on adult businesses. That schedule called for a first draft review
of the study at the Planning Commission's regular meeting in October.
RECOMMENDATION
Preferred: Review the attached material and provide staff with direction as how to proceed.
Basis: Review this month will keep the study on schedule, allowing staff adequate time
to make necessary changes and bring the study back for review in November.
CITY OF RICHFIELD
Memorandum
DATE: October 25, 1994
TO: Planning Commissioners
FROM: Byron Wallace
SUBJECT: Adult Uses Study - First Draft
Introduction:
The City of Richfield has regulated adult uses through a licensing procedure
under section 605 of the City Code (Appendix A). The Zoning Ordinance does
not specifically relate to adult uses. The licensing provisions responded to the
massage parlor' issues of a decade ago.
In recent years, other types of adult uses have appeared in other cities or
inquiries received about uses which may not be covered by either the licensing
provisions or the Zoning Ordinance. The City of Bloomington has recently
completed a study on the regulation of adult uses and the Zoning Ordinance of
the City of Hopkins has been challenged as unduly restrictive by an adult use
video store.
As a result, the City Council on October 25, 1993 approved a one year
moratorium on the development of adult uses within the City and extended such
moratorium on September 12, 1994 for an additional one year to provide
adequate time to address the land use and zoning issues. During this time, staff
has researched and accumulated materials and studies relating to the subject.
The Planning Commission has had the materials available as well as heard from
staff and the City Attorney's office on the topic. The Planning Commission is
also at work on a comprehensive review and revision of the entire Zoning
Ordinance.
Background:
Zoning has long been recognized as a valid method to regulate land use in
cities. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). In
reality, there is an exclusion or segregation of uses inherent in any such zoning
ordinance.
Zoning establishes districts and permits certain types of uses in each such
district. More particularly, certain types of businesses are considered to have a
blighting influence on other properties as a result of its operations. The oft cited
use is the slaughter house or rendering plant. More recently, the City Council
considered the potential blighting influences of businesses such as pawn shops
and required that they be dispersed and a specified distance from each other
and away from residentially zoned property.
There is an overriding differential when considering adult uses. The U.S.
Supreme Court has concluded that adult businesses, not dealing in obscene
materials, are protected_ by the First Amendment. Obscenity is not, however,
protected and may be prosecuted under state law.
An adult use business is typically a business that generates revenue by featuring
material, whether books, magazines, motion pictures or entertainment that
features or depicts sexual activities. Any regulation of the First Amendment
guarantees of freedom of communication and expression will be narrowly
construed.
The Scope of regulation has been delineated in great part by the U.S. Supreme
Court in two cases: Young v. American Mini Theatres, Inc. 427 US 50 (1976)
and Renton v. Playtime Theatres, Inc. 475 US 41 (1986). Two other more
recent Eighth Circuit cases from Minnesota are also attached: Holmberg v. _Cit y
of Ramsey, No. 92 -3897 MN, filed December 30, 1993 and ILO Investments,
Inc. v City of Rochester, No. 93 -1925, filed June 15, 1994.
Based on the above cases, any zoning regulation must be analyzed by
reference to the following:
1. An adult use cannot be regulated on the basis of the materials that
they sell or the entertainment provided but only on the effect that
such businesses have on the surrounding area.
2. A municipality must conclude that such adult businesses create
adverse secondary effects such as neighborhood blight, diminished
property values and increase crime.
3. Municipalities need not conduct their own adverse secondary
effects studies. They can rely on studies performed by other cities,
provided that the studies are reasonably related to the problem that
the City is trying to address.
4. Either dispersal or concentration regulations may be utilized but, in
either case, the City must allow a reasonable opportunity area in
the City for adult uses to locate.
There have been a series of studies undertaken across the country of the
secondary effects of adult businesses. Some of these studies are outlined
herein.
The Planning Department of the City of Phoenix, Arizona published a study
report in May 1979 entitled "Relation of Criminal Activity and Adult Business ".
The study compared three areas containing adult businesses with three
comparable control areas. The study conclusions were that the adult business
areas had crime rates of 143% of the control group for property crimes, 104% for
violent crimes and 606% for sex crimes. It should also be noted that in one of
the study areas the sex crime rate was 1135% of the control group area
average. In that same study area, 89% of the reported indecent exposure
crimes were committed at the addresses of adult businesses.
The Division of Planning in the City of Indianapolis, Indiana undertook a dual
planning study in 1983. Six areas containing adult businesses were compared
with six comparable control areas relative to the factors of crime incidence. In
the second part of the study, the City collaborated with Indiana University in a
national survey of real estate appraisers to develop a "best professional opinion"
as to the effect of adult entertainment businesses on surrounding real estate
values. The findings were as follows:
The average major crime rate (i.e., crimes per 10,000 population)
in the IPD District was 748.55, the Control Area 886.34, and the
Study Area 1090.51. Major crimes occurred in areas of the study
that contained at least one adult entertainment establishment at a
rate that was 23% higher than the six similar areas studies not
having such businesses and 46% higher than the Police District at
large.
Although it was impossible to obtain a discrete rate for sex - related
crimes at the police district level, it was possible to compare rates
between the Control Areas and the Study areas. The average
sex - related crime rate in the Control Areas over the five year
period was 26.2, while that rate for the Study Areas was 46.4.
If the ratio of sex - related crimes was the same as that established
for major crimes between the Control Area and the Study Area,
however, we would expect a sex - related crime rate of 32.3. The
actual rate of 46.4 is 77% higher than that of the Control Areas
rather than the 23% that would be expected and indicates the
presence of abnormal influences in the Study Areas.
Close examination of crime statistics within the Study Areas
indicate a direct correlation between crime and the residential
character of the neighborhood. Crime frequencies were 56%
higher in residential areas of the study than in its commercial
areas.
At the same time, sex - related crimes occurred four times more
frequently within residential neighborhoods having at least one
adult entertainment business than in neighborhoods having a
substantially district related commercial make -up having adult
entertainment.
Although the housing base within the Study Areas was of a
distinctly higher value than that of the control Areas, its value
appreciated at only one -half the rate of the control Areas' and
one -third the rate of Center Township as a whole during the period
1979-1982.
Pressures within the Study Areas caused the real estate market
within their boundaries to perform in a manner contrary to that
within the Control Areas, Center Township and the County. In a
time when the market saw a decrease of 50% on listings, listings
within the Study Areas actually increased slightly.
As a result, twice as many houses were placed on the market at
substantially lower prices than would be expected had the Study
Area's market performance been typical for the period of time in
question.
The great majority of appraisers (75 %) who responded to a
national survey of certified real estate appraisers felt that an adult
bookstore located within one block would have negative effect on
the value of both residential (80 %) and commercial (72 %)
properties. 50% of these respondents foresaw an immediate
depreciation in excess of 10 %.
At a distance of three blocks, the great majority of respondents
71 %) felt that the impact of an adult bookstore fell off sharply so
that the impact was negligible on both residential (64 %) and
commercial (77 %). At the same time, if appears that the residual
effect of such a use was greater for residential than for commercial
properties.
In answer to a survey question regarding the impact of an adult
bookstore on property values generally, 50% felt that there would
be a substantial -to- moderate negative impact, 30% saw little or no
impact, and 20% saw the effect as being dependent on factors
such as the predominant values (property and social) existing in
the neighborhood, the development standards imposed on the use,
and the ability of an existing commercial node 'to buffer the impact
from other uses.
An April 1978 study by the St. Paul Division of Planning and the Minnesota
Crime Control Planning Board entitled "Neighborhood Deterioration and the
location of Adult Entertainment Establishments" looked at the relationship
between alcohol serving adult entertainment and neighborhood blight. Adult
uses without alcohol were not part of this study. The Summary, in part, is as
follows:
There is a statistically significant relationship between the number
of adult entertainment establishments (alcohol - serving and
sexually oriented combined) located in an area and the
deterioration of that area as reflected in housing values and crime
rates.
Sexually oriented establishments tend to locate in areas which
already reflect the effects of other adult entertainment
establishments, making it difficult without further analysis to
ascertain the unique contribution which sexually oriented
establishments have on neighborhood deterioration.
While adult entertainment establishments tend to locate in areas of
relative deterioration, there is clear indication that these
establishments contribute heavily to the further deterioration of
these same areas. Most significantly, the effect of adult
entertainment establishments on neighborhood deterioration was
found to be a threshold phenomenon; neighborhood deterioration
is significantly greater in those areas with more than two adult
entertainment establishments of any type (alcohol - serving or
sexually oriented).
There is an externality or social cost, as reflected in neighborhood
deterioration, imposed on a neighborhood by the location of an
adult entertainment establishment in that area. These costs are
ultimately reflected in higher taxes for all St. Paul citizens in order
to support the delivery of more police services, and in a relatively
depressed and eroding tax base in the affected areas, leading to
even higher citywide tax rates.
Those areas with more than two adult entertainment establishment
have sharply higher crime rates and sharply lower housing values
than those with fewer than two such establishments.
The June 1989 " Report of the Attorney General's Working Group on the
Regulation of Sexually Oriented Businesses" also reported on the studies done
by Minneapolis and Los Angeles. These are set out in the Report on pages 6
and 10.
Minneapolis:
In 1980, on direction form the Minneapolis City Council, the Minneapolis Crime
Prevention Center examined the effects of sex - oriented and alcohol- oriented
adult entertainment upon property values and crime rates. This study used both
simple regression and multiple regression statistical analysis to evaluate whether
there was a causal relationship between these businesses and neighborhood
blight.
The study concluded that there was a close association between sexually
oriented businesses, high crime rates and low housing values in a neighborhood.
When the data was reexamined using control variables such as the mean
income in the neighborhood to determine whether the association proved
causation, it was unclear whether sexually oriented businesses caused a decline
in property values. The Minneapolis study concluded that sexually oriented
businesses concentrate in areas which are relatively deteriorated and, at most,
they may weakly contribute to the continued depression of property values.
However, the Minneapolis study found a much stronger relationship between
sexually oriented businesses and crime rate. A crime index was constructed
including robbery, burglary, rape and assault. The rate of crime in areas near
sexually oriented businesses was then compared to crime rates in other areas.
The study drew the following conclusions:
1. The effects of sexually oriented businesses on the crime rate index
is positive and significant regardless of which control variable is
used.
2. Sexually oriented businesses continue to be associated with higher
crime rates, even when the control variables' impacts are
considered simultaneously.
According.to the statistical analysis conducted in the Minneapolis study, the
addition of one sexually oriented business to a census tract area will cause an
increase in the overall crime rate index in that area by 9.15 crimes per thousand
people per year even if all other social factors remain unchanged.
Los Angeles:
A study released by the Los Angeles Police Department in 1984 supports a
relationship between sexually oriented businesses and rising crime rates. This
study is less definitive, since it was not designed to use similar areas as a
control. The study indicated that there were 11 sexually oriented adult
establishment in the Hollywood, California, area in 1969. By 1975, the number
had grown to 88. During the same time period, reported incidents of "Part I"
crime (i.e., homicide, rape, aggravated assault, robbery, burglary, larceny and
6
vehicle theft) increased 7.6 percent in the Hollywood area while the rest of Los
Angeles had a 4.2 percent increase. "Part II" arrests (i.e. forgery, prostitution,
narcotics, liquor law violations, and gambling) increased 3.4 percent in the rest of
Los Angeles, but 45.4 percent in the Hollywood area.
Other reports considered include a Planning Advisory Report by William Toner,
Regulating Sex Businesses" May 1977 and "The Impact of Pornography: A
Decade of Literature" by H.B. McKay and K.J. Kolff, 1984. Pertinent reviews of
studies and the literature in the field include that by the Rochester /Olmstead
Consolidated Planning Department for the City of Rochester in 1988 and the City
of Ramsey Planning Report of September 1990. The recent set of documents
and reports of the City of Bloomington is also attached.
The Rochester report, as quoted by the Eighth Circuit, seemed a reasonable
review of the findings of the variance studies:
a) A considerable number of communities throughout the nation have
studied the impacts which adult entertainments have on the areas
surrounding them.
b) These studies have concluded that adult entertainment uses have
an adverse impact on the surrounding neighborhoods.
C) Residential neighborhoods in proximity to adult uses suffer adverse
effects including increased crime rates, lowered property values,
and increased transiency.
d) Values of both commercial and residential properties are
diminished when located in proximity to adult entertainment
businesses.
e) The adverse impact on commercial areas is increased by the
presence of more than one adult entertainment use in close
proximity to another adult entertainment use.
f) The impact which an adult entertainment use has on the
surrounding area appears to lessen as the distance for the adult
entertainment use increases.
g) Reasonable "time, place and manner" restrictions which address
the "secondary" impacts of adult entertainment uses are
constitutionally permissible.
as well as the conclusions:
The concerns which have prompted public hearings in this city are
similar to the concerns which motivated the communities of
Indianapolis, Indiana; St. Paul, Minnesota; Phoenix, Arizona; and
Seattle, Washington to undertake their studies of adult
entertainment uses; consequently, the results of those studies are
relevant to the existing or foreseeable impacts which such uses
can have on the areas surrounding them in this city.
The concentration of adult entertainment uses in commercial areas
or the location of adult entertainment uses in close proximity to
residential uses, churches, parks and schools will result in
devaluation of property values and decreases in commercial
business sales, thereby reducing tax revenues to the City and
adversely impacting the economic well -being of the citizens of this
City.
Location of adult entertainment uses in proximity to residential
uses, churches, parks, schools, bars, and other adult entertainment
uses very likely would lead to increased levels of criminal activities,
including prostitution, rape, assaults, and other sex - related crimes
in the vicinity of such adult entertainment uses.
Recommendation:
1. The City should adopt zoning regulations which set distance
requirements between adult use businesses and other sensitive
areas or uses such as residentially zoned areas, schools,
churches, parks and child care facilities.
2. The City should adopt zoning regulations which disperse adult uses
rather than concentrate them in a single area.
3. The City should adopt zoning regulations which set minimum
distances between adult use businesses.
4. The City should adopt zoning regulations which restrict adult uses
to one such adult use business per building.
5. The City should provide in the zoning regulations a reasonable
area for adult uses to locate.
Appendix A - Section 605, Richfield City Code
B - City of Renton v. Playtime Theatres, Inc., 475 US 41 (1986)
C - Holmberg v. City of Ramsey, No. 92 -3897 MN, U.S. Court
of Appeals for the Eighth Circuit, 1993.
D - ILO Investments, Inc. v. City of Rochester, No. 93 -1925,
U.S. Court of Appeals for the Eighth Circuit, 1994.
E - Community Crime Prevention Project of the Minnesota
Crime Control Planing Board and the Division of Planning,
Department of Planning and Economic Development of the
City of St. Paul, "Neighborhood Deterioration and the
Location of Adult Entertainment Establishments in St. Paul"
April 1978.
F - Department of Metropolitan Development Division of
Planning, "Adult Entertainment Business in Indianapolis An
Analysis, " February 1984.
G - City of Phoenix Planning Department, "Relation of Criminal
Activity and Adult Businesses", May 1979.
H - " Report of the Attorney General's Working Group on the
Regulation of Sexually Oriented Businesses ", June 6, 1989.
I - Division of Planning, Department of Planning and Economic
Development of the City of St. Paul, "A 40 -Acre Study ",
1987.
J - Northwest Associated Consultants, Inc., "Planning Report
City of Ramsey Adult Uses ", 1990.
K - Rochester /Olmsted Consolidated Planning Department and
office of the Rochester City Attorney, "Adult Entertainment,
Land Use and Legal Perspectives ", March 2, 1988.
L - William Toner, "Regulating Sex Businesses ", ASPO
Planning Advisory Service Report No. 327, May 1977.
M - H.B. McKay and D.J. Dolff, "The Impact of Pornography: A
Decade of Literature ", 1984.
7
N - City of Bloomington, "Conclusions Reached by Other Cities
Studying the Adverse Secondary Effects of Sexually
Oriented Businesses, ' and "Recommendations of the
Attorney General's Working Group on the Regulation of
Sexually Oriented Businesses 1989', and "Ordinances
Recommended by the Staff Committee on Sexually Oriented
Businesses 1994" and miscellaneous memoranda. -
10