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07-22-1997CITY Of R10HRELD PUnnn6 commission RGefIDFl July 22, 1997 7:00 p.m. Planning Commission meeting of June 24, 1997 and Planning Commission Study Session of July 8, 1997. ITEM #1 ITEM It? ITEM #3 PC Letter #16 Comprehensive Plan Text Amendment PC Letter #17 Ordinance Amendment - Licensed Residential Care Facilities PC Letter #18 Review of Zoning Ordinance - Section 521 School Board Community Services Advisory Commission HRA City Council 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 Regular Meeting June 24, 1997 MEMBERS PRESENT: Chairperson Daniel Linnihan; Commissioners: Terry Ahlstrom, Brenda Bjorklund, Pamela Dmytrenko, David Gepner, Roger Gordon, Mitchell Hadley, Kevin Hansen, and Bill Kilian. MEMBERS ABSENT: COUNCIL LIAISON None Martin Kirsch, Mayor STAFF PRESENT: Tom Foley, Transportation Engineer Julie Urban, Zoning Administrator Brian S. Mehl, Community Development Technician The Planning Commission meeting was called to order by Chairperson Linnihan at 7:05 p.m. APPROVAL OF MINUTES M /Gepner, S /Hadley to approve the minutes of the regular Planning Commission meeting of May 27, 1997. Motion carried: 9 -0 PUBLIC HEARINGS CASE 97- CUP -8, 6244 Cedar Avenue South ITEM #1 U.S. West Wireless Conditional use permit to construct a 90 foot telecommunications tower Zoning Administrator Urban reviewed the staff report, stating that U.S. West is proposing to construct a 90 foot steel monopole tower on their property located at 6244 Cedar Avenue. The tower would be located in the parking lot near the northwest corner of the building. An equipment pad would be located at the base of the pole. The tower would be painted a neutral color. She further added that the tower would be built to accommodate a second user, as required in Richfield ordinances. Ms. Urban stated that staff recommends that the Planning June 24, 1997 Page 2 Commission recommends the approval of the conditional use permit with the stipulations that the plans for any additional users are submitted to and approved by the Community Development Director and that the handicapped parking space be relocated if impacted by the construction of the tower. Ms. Urban responded to questions from Commission Gepner and Commissioner Linnihan stating that this would be the first tower located in Richfield, adding that all other providers have located on existing structures, including both Richfield water towers. She further stated that this tower would not be required to be painted red and white as was required of another tower located in Taft Park on the Minneapolis side. Commissioner Gordon asked what the maximum allowable height would be to which Ms. Urban responded that 150 feet would be allowed under Richfield ordinance. Commissioner Linnihan requested additional information regarding the line of sight and whether or not the tower would have a 360° radial. John Hollenbeck from CB Commercial for U.S. West, responded that the tower would have the 360° radial and would meet all requirements regarding line of sight. Commissioner Linnihan asked whether or not U.S. West owned the land in question, to which Mr. Hollenbeck stated that the company does own the property. Mr. Hollenbeck responded to a question from Commissioner Gordon, stating that APT has submitted a letter of interest in locating on the proposed tower. Mr. Hollenbeck presented a map showing the land area that would be covered by U.S. West Wireless if the new tower was approved, as well as a map showing what is currently covered by the U.S. West system. Commissioner Linnihan asked whether or not a tower would need to be constructed to provide service to the 66th Street area. Mr. Hollenbeck responded that another tower would not be required because a new tower had already been constructed in South Minneapolis which covered that area. Commissioner Linnihan further asked if the tower would be visible to the public. Ms. Urban stated that it would generally blend in with the existing light poles located at Taft Park. Mr. Hollenbeck added that the tower has been planned to have a "stealth design" in which no crows nest would be located on top. He added that a light at the top as well as the red and white striped paint would not be required because of the tower's height. Mr. Hollenbeck stated that the tower would not be painted unless required by the City and would be allowed to rust naturally in order to give the tower a more natural appearance. M /Hadley, S /Gordon to close the public hearing. Motion carried: 9 -0. M/Hadley, S /Bjorklund to recommend approval of the conditional use permit with the stipulations that U.S. West provide the plans for any additional users be submitted to and aqpproved by the Community Development Director and that the handicapped parking space be relocated if impacted by the construction of the tower: June 24, 1997 Page 3 Motion carried: 9 -0 OLD BUSINESS Discussion of Bike Way Network - 76th Street Plan ITEM #2 presented by Tom Foley, Transportation Engineer continued) Tom Foley, Transportation Engineer, presented a report to the Planning Commission outlining the investment needs, investment priorities, financial considerations, candidate capital needs projects, project maps, and the Municipal State Aid budget showing income and year end balances. Mr. Foley stated that the City should establish priorities in preserving, managing, replacing or expanding the existing facilities within the City. He continued by explaining the sources of income, including the MSA, local funds and state or federal funds. Mr. Foley finished by outlining a few of the capital needs projects, itemizing those that have been previously approved but not yet complete, those that are new proposals, and those that are other candidate projects. Commissioner Bjorklund stated that she would like staff to rank the capital needs projects in order from most necessary to least necessary, with ranking being based upon criteria such as need and financial considerations. Commissioner Linnihan asked if a tie - breaker would be used if two projects were determined to be equally important after the above listed criteria had been analyzed. Mr. Foley responded that some projects are directly linked to other projects in the City. He stated that a tie- breaker could be determined if one of the "tied" projects were related to another project that the City planned to complete. Larry Wozniczka, 6744 Wentworth Avenue South, stated that he was concerned with the language used in the report generated by Mr. Foley. He stated he would like to see stress placed on the improvement of existing facilities, rather than simply replacing these facilities whenever needs are deemed necessary. He further added that he thinks that too much money is being allocated for the 76th Street East Project after the year 2001. LIAISON REPORTS School Board: Commissioner Dmytrenko stated that a committee took a look at whether or not the school should establish a foundation and considered connecting with the Richfield foundation. She then stated that the Board was looking at the funding and the future of the School Liaison Program. She added that a website had been created on the world -wide web at www.richfield.kl2.mn.us and that the school budget had been approved, although the Board was still waiting to see what happens with the State Legislature with regard to education funding. June 24, 1997 Page 4 Community Services Advisory Commission: Commissioner Hansen stated that applications were reviewed for the FOWL Board. He further stated that Jean Fox was reappointed to the Board. HRA: Commissioner Kilian stated that there were public hearings regarding 7600 Emerson Avenue, 6629 Washburn Avenue, 7600 Lyndale Avenue and 7432 Queen Avenue. He then stated that there was a consideration for the funding of seed money for new businesses in Richfield which was passed 3 -2 and a consideration to allow CSM to have private development rights for six months was passed 3 -2 with Cmmrs. Stokes and Susag rejecting. City Council: Mayor Kirsch stated that final approval had been given to the Minnesota School of Music as well as Richfield Nursery for their planned construction. He further stated that the City Council had approved the firefighters contract. Discussion ensued concerning the July 3, 1997 meeting regarding CSM's planned development in the area bounded by I -35W, 76th Street, Penn Avenue and I -494. Commissioner Linnihan requested that the other commissioners drive by a new three car garage on the corner of 67th Street and Morgan Avenue. ADJOURNMENT The meeting was adjourned by unanimous consent at 8:55 p.m. Mitchell Hadley Planning Commission Secretary h: \cdadmin \p &z \pc -mi ns \0624971nn.doc] Planning Commission Minutes Study Session July 8, 1997 MEMBERS PRESENT: Commissioners: Terry Ahlstrom, Brenda Bjorklund, Roger Gordon, Mitchell Hadley, Kevin Hansen, and Bill Kilian. MEMBERS ABSENT: Chairperson Daniel Linnihan; Commissioners: Pamela Dmytrenko and David Gepner COUNCIL LIAISON: None STAFF PRESENT: John Melin, Community Development Manager Julie Urban, Zoning Administrator Brian S. Mehl, Community Development Technician The Planning Commission meeting was called to order by Vice - Chairperson Hansen at 7:05 p.m. NEW BUSINESS Mr. Sid Inman, Ehlers and Associates, Inc., made a presentation to the Commission regarding Tax Increment Financing (TIF). Mr. Inman outlined the property tax basics for Minnesota, stating that the Minnesota property tax system must be understood in order to understand TIF. He further explained how TIF is calculated and the basics of TIF, including the different types of projects and districts, how increment may be used, and the types of financing available. Mr. Inman further explained the current TIF districts in the City of Richfield and how it is important to the redevelopment of Richfield as well as increasing the City's tax base over a period of time. Discussion ensued regarding the ramifications of either using or not using TIT to attract developers. Mr. Inman cited examples of several other cities in which some individuals may consider that TIF was used inappropriately, as well as examples in which TIF was used successfully. ADJOURNMENT The meeting was adjourned by unanimous consent at 8:55 p.m. July 8, 1997 Page 2 Mitchell Hadley Planning Commission Secretary h: \cdadmin \p &z \pc -m ins \070897.doc] a' Planning Commission Letterw':L I. 'wt . July 22, 1997 Agenda Section: Public Hearing Item #: l Letter #: 16 GENERAL INFORMATION Type of Request: Consideration of an amendment to the Comprehensive Development Plan Public Notice: Notice of the Planning Commission hearing was published in the Sun - Current. City Council: Planning Commission action would set a City Council hearing date of July 28, 1997. ANALYSIS Proposal: On June 12, 1997 the Metropolitan Council approved the City's Comprehensive Plan update with the stipulation that the City add notification language that is required by state law. The Plan update includes some similar language, however, the exact language from statute needs to be included. The language to be inserted into the Aviation section of the Plan is as follows: 5.3 MNDOT Notification is required by state statute for any construction or alteration that may be a potential obstruction to air navigation. Any sponsor who proposes any construction or alteration that would exceed a height of 200 feet above ground level at the site, or any construction or alteration of greater height than an imaginary surface extending upward and outward at a slope of 100:1 from the nearest point of the nearest runway of a public airport shall notify the Commissioner of the Minnesota Department of Transportation at least 30 days in advance. Staff was unaware that the exact language required was missing until it was too late to submit the language. Met Council staff is requiring the City Planning Commission and City Council to approve the language and submit it to the Met Council before the City Council can adopt the Plan. ACTION TO BE TAKEN Recommendation: Adopt the attached resolution recommending that the City Council approve an amendment to the Comprehensive Plan including the required notification language. Basis: 1. The City is required by state law to include the language in the Comprehensive Plan. 2. The language was omitted from the Plan unintentionally; the City has every intention of complying with the State law requiring this notification. 3. Adoption of the language will enable the City Council to adopt the Comprehensive Plan update; the Plan update has to be adopted by December 31, 1998. Alternative: Recommend that the City Council not adopt the attached notification language, however, the City's Comprehensive Plan would then be out of compliance with state law. RICHFIELD COMPREHENSIVE PLAN Volume Five: Addenda Richfield to be acquired by MAC and the Plan graphics show the areas as "PUB" (MAC). These areas are not included in the current, nor the projected Plan land use calculations since this property is part of the airport site. The loss of some 350 residential units was taken into account by proposals to add up to 1,000 new units in the City. Water supply for the expanded MSP development within and adjacent to the former New Ford Town and Rich Acres could come from City of Richfield water mains already in place. However, the MSP draft EIS states that water supply will come from wells on the MSP site, so the enlarged MSP operation will have no effect on the City water system. Wastewater flows to "Richfield" are shown to increase from about 0.2MGD to 0.27MGD, but because the wastewater discharges directly into a metro interceptor sewer downstream from City connections rather than through City trunks or laterals, there will be no impact on the City system. Public safety is handled by MSP special services that have mutual aid arrangements with City departments much the same as with other surrounding cities. Surface water runoff from the City does not flow through the MAC site and MAC will accommodate all surface water runoff on site, so no coordination is required. Future "West Terminal" Access, possible after 2010, will affect the configuration and may affect the timing of the TH77/West 66th Street interchange. The Plan recognizes the fact that the interchange will most likely be upgraded in any event and shows the local street intersection (Cedar Avenue and West 66th Street) moved one block to the west. Because of this move, the north -south minor arterial designation is also moved one block to the west. Airport noise impact -- An overlay zone will be created using the final adopted noise contour map and added to the zoning ordinance. Ordinance amendments will also designate those areas eligible for sound insulation and will include requirements for acoustic design standards for new construction. Special consideration will be required for the area west of the proposed north -south runway. 5.3 MNDOT Notification Minnesota Department of Transportation notification is required by state statute for any construction or alteration that may be a potential obstruction to air navigation. Any sponsor who proposes any construction or alteration that would exceed a height of 200 feet above ground level at the site or any construction or alteration or greater height than an imaginary surface extending upward and outward at a slope of 100:1 from the nearest point of the nearest runway of a public airport shall notify the Commissioner of the Minnesota Department of Transportation at least 30 days in advance. 5.4 Mitigation Measures Mitigation measures for expanded MSP operations include mitigation for loss of City tax base, public works infrastructure, two neighborhood parks, 27 holes of golf together with clubhouse and maintenance facility, softball and little league fields, site for a combined MnDOT -City public works FIVE -6 a Plannin g Commission Letter July 22, 1997 Agenda Section: New Business Item #: 2 Letter #: 17 GENERAL INFORMATION Type of Request: Consider an amendment to the Zoning Ordinance to make provisions regarding licensed and community based residential care facilities consistent with state law. References: (see attached Citations section for excerpts) Zoning Code: 521.03, Subd. 3; 521.07, Subd. 2; 521.19, Subd. 3; 521.23, Subd. 2; 521.39, Subd. 3; 521.43, Subd. 2; 521.61, Subd. 4; 521.65, Subd. 3; 521.81, Subd. 3; 521.85, Subd. 3 Legal Opinion: Letter from Assistant City Attorney, dated April 30, 1997 Opinion of the Attorney General, July 1990 Miscellaneous Fact Sheet on Residential Care Facilities Information: City Council: Planning Commission action would set a City Council first reading date of August 11, 1997. ANALYSIS History: This spring, a resident expressed concern to staff about a group home for developmentally disabled adults (residential care facility) that was moving into that person's neighborhood and asked for copies of the City's Ordinances relating to group homes. The Zoning Ordinance requires that residential care facilities in single family districts not be located within 1/4 mile of each other. The resident discovered that another group home was located within 1/4 mile of the proposed group home and asked the City to enforce this ordinance provision. History: The Assistant City Attorney advised the City against enforcing this provision because it is in conflict with state law (see attached letter from Corrine Thomson). She also advised that the City amend the Zoning Ordinance to bring it into compliance with state law. Chapter 462 (state zoning enabling legislation) provides that licensed residential care facilities serving six or fewer persons shall be considered a permitted single family residential use. Facilities serving from 7 to 16 persons shall be considered a permitted multi - family use. The state of Minnesota licenses programs serving from 7 to 16 persons. One of the requirements the state imposes is that the programs be located 1/4 mile apart from one another. The state does not, however, impose this distance requirement if the program serves six or fewer person. The City's Zoning Ordinance currently imposes a distance requirement for programs serving six or fewer persons unless the program obtains a conditional use permit. The Attorney General ruled several years ago that cities cannot impose a stricter distance requirement on care facilities than that imposed by state law. Proposal: The attached ordinance amendment makes residential care facilities serving six or fewer persons permitted single family uses and omits the reference to a 1/4 mile distance requirement. The ordinance amendment also makes changes to the MR -2 (medium density multiple residence) and MR -3 (high density multiple residence) residential districts. The changes make the ordinance language consistent with language in State Statute. Issues: Information on group homes is provided in the attached information piece. As the handout explains, the City is limited in its ability to regulate group homes for handicapped people by federal law as well as State Statute. Handicapped people are protected from housing discrimination by the Federal Fair Housing Act. The City is required to treat housing for handicapped people the same as it treats housing for non - handicapped people. ACTION TO BE TAKEN Recommendation: Recommend that the City Council amend Section 521 of the Zoning Ordinance relating to residential care facilities to make it consistent with state law. Basis: 1. The City's Zoning Ordinance imposes stricter requirements on group homes than those imposed by state law; the Attorney General has ruled that cities cannot impose stricter requirements. 2. The Assistant City Attorney has advised that the existing ordinance is unenforceable and should be amended. 3. State Statute and federal law provide clear guidelines for regulating group homes, and the City's Zoning Ordinance should be consistent with these laws. Alternative: Recommend that the City Council not amend Section 521 of the Zoning Ordinance. Bill No. 1997 - Amendment to the City Code of the City of Richfield The City of Richfield Does Ordain: A. Section 521 of Appendix B of the Richfield City Code entitled "Zoning: Residential Districts" is hereby amended in the following way: Subsection 521.03, subd. 3, is hereby amended to read as follows: 521.03. Permitted uses. Subdivision 1. The uses listed in this subsection are permitted uses in the R District. Subd. 3. Licensed residential care facilities or community based residential care facilities serving six or fever persons - provided- they -fire- net- lec- ateck vit# rirt --fl4- mil"&enether-sueh- faeihPy, exeept as- provided -fe -in- Section 521.07, Subdue -ef- this- -eede. Care facilities located within the R District shall be subject to the same zoning regulations as single family dwellings in the R District, II, Subsection 521.07, subd. 2, is hereby amended to read as follows: 521.07. Conditional uses. Subdivision 1. The uses listed in this subsection are conditional uses in the R District, and are subject to the conditional use permit provisions outlined in Section 546.05 of this code. Subdue.- Licensed- residential- care-faeilities er- EOninunity- based - residential - acre - facilities serving seven- or- mer -e- persons r--suc- h- faedities -- which- are -loc- ated- within444- mile- of -aneth ef-sueh4aeility-. C- are- €ac- ilities4eeated- within ri e4 strict- shall be- subjee *rte_ he --sa zoning- regulations -as single amity dwellings- in4he- R-Bist ie III. Subsection 521.19, subd. 3, is hereby amended to read as follows: 521.19. Permitted uses. Subdivision 1. The uses listed in this subsection are permitted uses in the R -I District. Subd. 3. Licensed residential care facilities or community based residential care facilities serving six or fewer persons- previded-the"re - net - located- within- IA- mii"f- another- sueh -facil eept as- provided- €or- in eet;1 -3 ubd-2 of- tl+s ode. Care facilities located within the R -1 District shall be subject to the same zoning regulations as single family dwellings in the R -1 District. IV. Subsection 521.23, subd. 2, is hereby amended to read as follows: 521.23. Conditional uses. Subdivision 1. The uses listed in this subsection are conditional uses in the R- 1 District; and are subject to the conditional use permit provisions outlined in Section 546.05 of this code. Subd- 2 —L-ie- ensed - residential -c- are- fasili ties -or- community- based residential - care- facilities - serving seven or mere pe sot }s- er- srtcli -fae lities vliieh- are - loeated wid ii 'n., -; ;;;ile of-anotheF sueh iaeility. Care 4acilities4ecate"-ithiii4he -R 1- District hall -be subject to -the same zoning-regu-latiens as single- faiiiily- dxvcllings- in-the R- I-- Distric -t- V. Subsection 521.39, subd. 4, is hereby amended to read as follows: 521.39. Permitted uses. Subdivision 1. The uses listed in this subsection are permitted uses in the MR -I District. Subd. 4. Licensed residential care facilities or community based residential care facilities serving six or fewer persons- previded-thep- aie- net -loe aced- widiin4/4- mile -ef anether-sin -- Iai €aciI& , ex -cept as- provided - for- innSeetioii - i24- 43,-Subd -2-of -this -code. Care facilities located in the MR -1 District shall be subject to the same zoning regulations as two family dwellings in the MR -1 District. Vl. Subsection 521.43, subd. 2, is hereby amended to read as follows: 521.43. Conditional uses. Subdivision 1. The uses listed in this subsection are conditional uses in the MR -I District; and are subject to the conditional use permit provisions outlined in Section 546.05 of this code. Subd— Licensed- residential -c - are -fac -d ities- oFeemmunity- based -res idcntiakare- facilities- seFVir}g seven -or -more- per sons- or-sueh- fac- ilities- which- are - located -within -/4 -mile of-another-sueh- -66hty Gare-faeAities- -- ated —w,* M-tie MR- "istr-iet shall be subject =to the same ZOning Feg latiens -as Hve- fartA,, dwel •1ings-tn4he -M° 4- 9istricf VII. Subsection 521.61; subd. 4, is hereby amended to read as follows: 521.61. Permitted uses. Subdivision 1. The uses listed in this subsection are permitted uses in the MR -2 District. Subd. 4. Licensed residential care facilities or community based residential care facilities serving six or fewer persons- provided-they- are -not4oc- ated - within -N4- mile -o€- another- sueh4aeility-exeept as- provided- for- i- Sectioi5 1.65 Subd of -this cede. Care facilities located in the MR -2 District shall be subject to the same zoning regulations as multi - family dwellings in the MR -2 District. Subd. 5. Licensed residential care facilities or community based residential care facilities serving from 7 through 16 persons provided they are not located within 1/4 mile of another such facility. Care facilities located in the MR -2 District shall be subject to the same zoning regulations as multi - family dwellings in the MR -2 District. Vlll. Subsection 521.65, Subd. 3, is hereby amended to read as follows: 521.65. Conditional uses. Subdivision 1. The uses listed in this subsection are conditional uses in the MR -2 District: and are subject to the conditional use permit provisions outlined in Section 546.05 of this code. Subd. 3. Licensed residential care facilities or comununity based residential care facilities serving s(.ven -or- more- per-sonsmore than 16 persons er -sueh- facilities- which- are - located within 1/4 -„.ilof another - such - facility-. Care facilities located within the MR -2 District shall be subject to the same zoning regulations as multi - family dwellings in the R -1 District. IX. Subsection 521.81, Subd. 3; is hereby amended to read as follows: 521.81. Permitted uses. Subdivision 1. The uses listed in this subsection are permitted uses in the MR -3 District. Subd. 3. Licensed residential care facilities or community based residential care facilities serving six or fewer persons - provided -they- are ne4 loea* °a vithin 1/4 mile of another-- sueh- faeilit3 Texe-ept as- provided- fo "'n- Seetio.-- : o5, ubd- 4-eRhis -eede. Care facilities shall have the same zoning requirements as multi - family dwellings in the MR -3 District. Subd. 4. Licensed residential care facilities or community based residential care facilities serving from 7 through 16 persons provided the\, are not located within 1/4 mile of another such facility. Care facilities shall have the same zoning requirements as multi - family dwellings in the MR -3 District. X. Subsection 521.85, subd. 3, is hereby amended to read as follows: 521.85. Conditional uses. Subdivision 1. The uses listed in this subsection are conditional uses in the MR -3 District, and are subject to the conditional use permit provisions outlined in Section 546.05 of this code. Subd. 3. Licensed residential care facilities or community based residential care facilities serving more than 16 persons - seven -or- more-persons; or- suc4-t- t'ties whie"re- loeated- within 1/4 mile -of another - such - facility. Care facilities located within the MR -3 District shall be subject to the same zoning regulations as two family dwellings in the MR -3 District. B. The remaining subsections of section 521 are renumbered accordingly. Passed by the City Council of the Citv of Richfield, Minnesota this day of 1997. Martin J. Kirsch, Mayor ATTEST: Thomas P. Ferber, City Clerk 470 Pillsbury Center 200 South Sixth Street Minneapolis MN 55402 612) 337 -9300 telephone 612) 337 -9310 fax e -mail: attys@kennedy- graven.com CHARTERED CORRINE H. THOMSON Attorney at Law Direct Dial (612) 337 -9217 April 30, 1997 BY FAX AND MAIL Julie Urban City of Richfield 6700 Portland Avenue South Richfield, MN 55423 RE: Group Home Zoning Regulations Dear Julie: This responds to your inquiry regarding the enforceability of Richfield City Code §§ 521.03, subd. 3 and 521.07, subd. 2. Subsection 521.03, subd. 3 provides that licensed residential care facilities or community based residential care facilities serving six or fewer persons are permitted uses in the Single Family Residential District, provided that they are not located within 1/4 mile of another such facility. Under § 521.07, subd. 2, facilities that are within 1/4 mile of another facility must obtain a conditional use permit. The City is precluded from enforcing the 1/4 mile distance requirement, because it conflicts with state law. Minnesota Statutes, Section 462.357, subd. 7 provides, in relevant part: A state licensed residential facility serving six or fewer persons ... shall be considered a permitted single family residential use of property for the purposes of zoning ... Minn. Stat. § 462.357, surd. 7 (1996). The Minnesota Attorney General has opined that a city may not impose distance requirements for group homes in city zoning regulations that are more stringent than the distance requirements established under statute. Minn. Op. Atty. Gen. 59 -a -32, July 10, 1990 (copy enclosed). The relevant state distance requirements are found at Minnesota Statutes, Section 245A.11, subd. 4, which provides, in part: The commissioner shall not grant an initial license to any residential program if the residential program will be within 1,320 feet of an existing residential c: ,u 1211'02 i GO .. s Julie Urban April 30, 1997 Page 2 program unless one of the following conditions apply: (1) the existing residential program is located in a hospital licensed by the commissioner of health; (2) the town, municipality, or county zoning authority grants the residential program a conditional use or special use permit; (3) the program serves six or fewer persons and is not located in a city of the first class; or (4) the program is foster care. Minn. Stat. § 245A.11, subd. 4 (1996)(emphasis added). The facility in question has fewer than six persons and falls within exception 3 above for the 1/4 mile distance requirement. (As an aside, I would note that exception 3 was added to the statute in 1992. Prior to 1992, a 1/4 mile distance requirement was lawful. This provision i. ^. the city code simply has not kept pace with changes in the state licensing statutes.) In conclusion, the City may not enforce the 1/4 mile distance requirement imposed by § 521.03, subd. 3. A licensed residential facility or community based residential facility serving six or fewer persons is a permitted use in the Single Family Residential district, without regard to its distance from other such facilities. It is not required that the City amend its ordinances to remove the distance requirement. Instead, the City could simply not enforce the distance requirement. However, to avoid situations like the instant one, I recommend that the ordinance be amended by removing the distance requirement from § 521.03, subd. 3 and repealing § 521.07, subd. 2. Please contact me if you have any further questions. Sincerely, Corrine H. Thomson cc: John Dean (w /o enclosures) Jim Prosser (w /enclosures) John Paul Martin (attorney for resident) (w /enclosures) Alan Thiel (attorney for Fraser) (w /enclosures) CAH12L902 RC160 -5 Minnesota Legal Register Attorney General Opinions Issue) JULY 1990 Page 16 Opinions of the Attorney General Hubert H. Humphrey, III MUNICIPALITIES: ZONING: Minn. Stat. § 245A.11, subd. 2, 4 and 6 and Act of May 3, 1990, ch. 568, Art. II, § 47 preclude a local zoning authority from requiring that a new four person residential program to be licensed pursuant to the Human Services Licensing Act, Minn. Stat. ch. 245A, be 1320 feet or more from an existing licensed residential program. Hugh L. Nierengarten July 10, 1990 New Ulm City Attorney 59 -a -32 P.O. Box 214 (Cr. ref. to New Ulm, MN 56073 477 -b -34) In your letter to Attorney General Hubert H. Humph- rey, III, you state substantially the following: FACTS Minn. Stat. § 245A.I I requires that, with certain excep- tions, new residential facilities must be at least 1320 feet from existing residential facilities in order to be licensed by the Minnesota Department of Human Services. Under the statute, however, programs serving six or fewer individuals and residential programs located in hospitals are exempt from the spacing provisions of section 245A.11. The City of New Ulm has adopted an ordinance which purports to apply the 1320 feet spacing requirement to all residential programs, including those serving six or fewer individuals, and those in hospitals. An issue has arisen with respect to the ordinance because of a proposed residential program which would serve four individuals with mental retardation. The new program would be located within 1320 feet of a hospital which houses a residential chemical dependency program licensed by the Department of Human Services. QUESTION May a municipal zoning code impose distance require- ments on a residential program licensed under Minn. Stat. ch. 245A that are more resttictive than those established in statute? OPINION We answer your question in the negative. Municipalities derive their zoning power through a legislative grant of authority from the state. Minn. Stat. § 462.357 (1988); Costley v. Caromin House. Inc., 313 N.W.2d 21 (Minn. 1981) ( "In Minnesota ... a municipality has no inherent power to enact zoning regulations. A municipality receives power to zone only by legislative grant of authority by the state. "); Denney v. City of Duluth, 295 Minn. 22, 26, 202 N.W.2d 892, 894 (1972) ( "It is fundamental that a municipality's power to regulate land use by zoning exists by virtue of authority delegated to it by the state. ") A munici- pality cannot authorize through its zoning code what a state law expressly prohibits; conversely, it cannot prohibit what a state law expressly permits. Mangold Midwest Co. v. Village of. Richfield, 274 Minn. 347, 143 N.W.2d 813 (1966). The state has preempted local authority in the area of "ensuring an appropriate living environment in residential facilities" In This Issue ... Subject Op. No. Dated MUNICIPALITIES: Zoning: 59 -a -32 Cr. Ref. 477 -b -34) 7/10/90 ELECTIONS: Courts: 184d Cr. Ref. 141d- 2,402b) 7/17/90 for persons with mental illness. Northwest Residence. Inc. v. City of Brooklyn Center, 352 N.W.2d 764, 772 (Minn. Ct. App. 1984); rev. denied Jan. 4, 1985. By inference, this principle also applies to matters affecting residential facilities for persons with mental retardation. Cf. Costley, 313 N.W.2d at 27 ( "zoning statutes guarantee that local govern- ments cannot frustrate state and national policy of permit- ting mentally retarded persons to participate in normal residential communities. "). See also Ops. Atty. Gen. 59 -a -32 April 23, 1979) and 47 -b -34 (April 26, 1982). The state's general policy concerning the location of residential facilities is summarized in the Human Services Licensing Act (HSLA): It is the policy of the state that persons shall not be excluded by municipal zoning ordinances or other land use regulations from the benefits of normal residential sur- roundings. Minn. Stat. § 245A.11, subd. 1 (1988). As recently amended by the Minnesota Legislature, the HSLA also provides that: The commissioner shall not grant an initial license to any residential program if the residential program will be within 1,320 feet of an existing residential program unless one of the following conditions apply: (1) the existing residential program is located in a hospital licensed by the commissioner of health; or (2) the town, municipality, or county zoning authority grants the residential program a conditional use or special use permit. In cities of the first class, this subdivision applies even if a residential program is considered a permitted single- family residential use of property under subdivision 2. Foster care homes are exempt from this subdivision. Minn. Stat. § 245A.11, subd. 4 (1988), as amended by Act of May 3. 1990, ch. 568, Art. 2, § 47 (emphasis added to denote 1990 amendments). Subdivision 2 of the statute provides: Residential programs with a licensed capacity of six or fewer persons shall be considered a permitted single - family residential use of property for the purposes of zoning and other land use regulations. Minn. Stat. § 245A.11, subd. 2 (1988). See also Minn. Stat. § 462.357, subd. 7 (1988). The proposed program at issue here will serve four individuals with mental retardation. Under the licensing provisions, a program serving six or fewer people is to be treated as a permitted single family residential use. Minn. Stat. § 245A.11, subd. 2. The spacing requirements of subdivision 4 apply to such a facility only if the program is located in a city of the first class.' Cities of the first class are defined in Minn. Stat. § 410.01 (1988) as those cities having a A program in a city of the first class may be permitted even if it is within 1320 feet of another residential program, if granted a special or conditional use permit by the local zoning authority. Minn. Stat. 245A.11, subd. 4. Page 17 JULY 1990 population of 100,000 or more. Since New Ulm is not a city of the first class, the 1320 foot distance requirement in subdivision 4 does not apply to the proposed program. Thus, regardless of its proximity to other residential programs, the program's proposed location is permissible under the statute, to the same extent any other single family residential use is permitted. In 1990, the Minnesota Legislature amended subdivision 4 to clarify the intent of subdivisions 4 and 6 as to distance requirements. The amendment clearly exempts from the spacing requirement those programs within 1320 feet of a hospital -based residential program. As you noted in your letter, under this provision, too, the proposed New Ulm program is exempt from the 1320 foot distance requirement, and thus no special or conditional use permit from the city is statutorily required. However, the City of New Ulm has enacted an ordin- ance which states that: N]o Group Residential Facility shall be located closer than 1320 feet from any other current or new Group Residential Facility, regardless of the zoning district classifications of the facilities. Ordinance No. 85 -033, Second Series, dated April 16, 1985. The ordinance is written to apply to any group residential facility, regardless of its size. "Group Residential Facility" is defined, in part, as: A] state licensed facility, public or private, which regul- arly provides a planned combination of living conditions, services and resources for the treatment, rehabilitation, training, supervision or care of persons residing on the premises. Id. Thus, under the New Ulm ordinance, the proposed four - person group home would be precluded from locating on the proposed site, since that site is within 1320 feet of hospital -based a residential program licensed by the state. The question, then, is whether the city can prohibit what the licensing statute explicitly allows. The law is well - settled on this point. The statute clearly exempts the proposed program from the distance requirement. Since a "local regulation that forbids what the state expressly permits cannot stand," Northwest Residence, Inc., 352 N.W.2d at 774 (citation omitted), it is clear that New Ulm is without authority to impose requirements not imposed by the licensing statute. Mangold Midwest Co., 274 Minn. at 352, 143 N.W.2d at 820. Therefore, the city is prohibited from requiring that the proposed program be at least 1320 feet from existing pro- grams. Finally, we note that a municipality's authority to impose requirements designed to protect the health and safety of pro.-ram residents is interpreted narrowly. Thus, in Northwest Residence, Inc., the court stated that section 245.812 (1982) (the predecessor provision to section 245A.11): Clonstitutes a narrow grant of authority and cannot be interpreted in a manner that would run against state regulations on the operation of residential facilities, or undermine the state policy of favoring the establishment of community residential facilities. Rather, it must be read to permit municipalities to impose only special health and safety standards appropriate to the characteristics of a particular site.... The grant of authority does not permit municipalities to establish special regulations concerning the general welfare of mentally ill adults and thus is not a basis for a special occupancy requirement. 352 N.W.2d at 774. New Ulm Ordinance No. 85 -033 is invalid and without effect to the extent ii prohibits that which is expressly permitted by the statute. The proposed four - person residen- tial program to be licensed by the Minnesota Department of Human Services is not subject to the 1320 foot distance requirement contained in the ordinance, and for zoning purposes must be regarded as any other single family residen- tial use. HUBERT H. HUMPHREY, III Attorney Geneial GAIL M. OLSON, Asst. Atty. Gen. ELECTIONS: COURTS: Where vacancy will occur in office of Chief Justice of Supreme Court through mandatory retirement after time for scheduled election for that office, Governor shall appoint someone to fill vacancy until next election more than one year after appointment. Op. Atty. Gen. 141d -2, June 20, 1986, distinguished. Minn. Const. art. VI, §§ 7, S. Honorable Rudy Perpich July 17, 1990 Governor of Minnesota 184D 130 State Capitol (cr. ref. 14ld -2, 402b) St. Paul, MN 55155 In your recent communications with our office you have presented substantially the following: FACTS The Honorable Peter Popovich was appointed to the. office of Chief Justice of the Minnesota Supreme Court on February 1, 1989, to fill a vacancy created by the retirement of the Honorable Douglas K. Amdahl. Pursuant to Minn. Const. art. VI, § 8, an election would normally be scheduled to choose a successor on November 6, 1990. Chief Justice Popovich will become 70 years of age on November 27, 1990. Therefore, he is required by law to retire on November 30, 1990, and in accordance with that requirement, on June 21, 1990, he submitted a written resignation, effective November 30, 1990. As the appointing authority, you have accepted the resignation. Thus, a vacancy has been created in the office of Chief Justice, effective November 30, 1990. You then ask substantially the following: QUESTION Is it the constitutional duty of the Governor to appoint someone to fill this vacancy until a successor is elected in November, 1992, eliminating the election for the office of Chief Justice in November, 1990? OPINION It is our view that the language of article VI, section 8 of the Constitution and recent decisions of the Minnesota Supreme Court mandate that the Governor fill the vacancy in the office of Chief Justice by appointment. The individual appointed by the Governor would serve until that person or a successor is elected in November, 1992. We therefore answer your question in the affirmative. This opinion confirms oral advice provided to your office when the issues considered here were first raised. Minn. Const. art. VI, § 8, provides: Whenever there is a vacancy in the office of judge the governor shall appoint in the manner provided by law a qualified person to fill the vacancy until a successor is elected and qualified. The successor shall be elected for a six year term, at the next general election occurring more than one year after the appointment. While this section of the Minnesota Constitution pro- vides for appointment to fill all judicial vacancies, the immediately preceding section provides: The term of office of all judges shall be six years and until their successors are qualified. They shall be elected by the voters from the area which they are to serve in the manner provided by law. Minn. Const, art. VI, § 7. RESIDENTIAL CARE FACILITIES Group Homes) Federal Level ° Beginning in the late 1960s, a national movernent toward del nstltutionalization led to the closing of many large institutions and the development of community -based facilities. Handicapped people moved out of state institutions and into the community. In 1988, Congress passed the Fair Housing Amendments Act (FHAA) The Fair Housing Act 0 968) prohibits housing discrimination on the basis of race, color, religion, or national origin ". In the FHAA, the Fair Housing Act is extended to prohibit discrimination on the basis of handicap. The purpose of the FHAA is to permit people with disabilities to live where they wish, irrespective of the views and prejudices of others. Under the law, a City must "make reasonable accommodations ... to afford such persons equal opportunity to use and enjoy a dwelling." State of Minnesota Minnesota Statutes, Chapter 462.357 (zoning enahling legislation) A state licensed residential facility serving six or fewer persons shall be considered a permitted single family residential use. A state licensed residential facility serving 7 to 16 persons shall be considered a permitted multi - family use. A City may require a conditional use permit. Any conditions imposed cannot be more restrictive than those imposed on facilities for non - handicapped persons unless the conditions are necessary to protect the health and safety of the residents. Separation Requirement The A4innesota Department of Human Services (DHS) Licensing Act requires that programs serving more than six persons be located 1,320 feet 0 /4 mile) apart to ensure that an over - concentration of these programs does not occur. DHS monitors the concentration of these programs when it issues licenses. Programs serving six or fewer persons are excepted from the distance requirement in all cities except cities of the first class (population over 100,000). A distance requirement is enforced for programs serving six or fewer persons in cities of the first class because programs have been overly - concentrated in these communities, primarily Minneapolis. h:\cdadmin \PRz \gpliomes.doe I May 16, 1997 RESIDENTIAL CARE FACILITIES Group Homes) The Department of Human Services shall not grant a license to any residential program if the residential program is within 1,320 feet 0 /4 mile) of an existing residential program unless one of the following conditions apply: (1) the existing residential program is located in a hospital licensed by the commissioner of health; (2) the town, municipality, or county zoning authority grants the residential program a conditional use or special use permit; (3) the program serves six or fewer persons and is not located in a city of the first class population over 100,000 people); or (4) the program is foster care." Minnesota Statutes, Section 245A.11, subd. 4 -- Department of Human Services Licensing Act) The City of New Ulm adopted an ordinance applying a 1/4 mile distance requirement to all residential programs, regardless of size. In 1990, the Minnesota Attorney General ruled that a city may not impose distance requirements for group homes in city zoning regulations that are more stringent than the distance requirements established under state statute. In other words, cities (except first class cities) cannot impose a distance requirement for programs serving six or fewer persons. Licensing Requirements Residential programs are licensed by the state Department of Human Services DHS). Hennepin County issues licenses for programs that serve 4 or fewer persons considered adult foster care programs). The County makes sure that all programs meet licensing criteria and monitors them on a regular basis. A non- licensed residential program opened in Richfield in 1994. At the time, the City required the program to obtain a conditional use permit because it was not licensed. Since that time, the Zoning Ordinance was changed to allow both licensed residential care facilities" and "community based residential care facilities" as permitted single family uses. A community based residential care facility is not licensed but is similar to a licensed facility in its operation and the services it provides. In the case of the Richfield prograrn, it was not required to.be licensed by the State because of the small number of residents being served. h: \cdadmin \p&z\gphonrs.doc 2 May 16, 1997 RESIDENTIAL CARE FACILITIES Group Homes) Richfield: Number According to County and State records, there are 16 residential care facilities in Richfield that serve 6 or fewer residents. They are primarily adult foster care programs that are licensed through the County and limited to 4 or fewer residents. In addition, there are three residential programs for persons with disabilities that are located in apartment buildings. Two programs are located in multi - family districts. Another program is located in an apartment building in a commercial zoning district. All three apartment buildings received conditional use permits before they were constructed. Residential care facilities account for 0.5 percent of the total housing units in Richfield. Types There are various types of residential programs designed to serve different populations. The Department of Human Services defines the different types of programs and their requirements in state rules. For example, a Rule 34 facility is a residential program for developmentally disabled children or adults. There are also programs for persons with mental illness, persons who are chemically dependent, and children and adolescents in crisis. The programs available in Richfield are primarily for people with developmental disabilities. Sixteen programs serve persons with developmental disabilities Two programs are for persons with mental illness (one of which is an apartment building) One program (in an apartment building) is for persons who are chemically dependent One program (in a single family home) is for youth in crisis Effects on Property Values The change in property value of neighboring properties was compared for the three years prior to the year that the group home moved into the neighborhood and for the three years subsequent. The comparison indicates no significant decrease in property value after the group home moved into the neighborhood. In fact, in many ii:\cdad,nin\p&ztigpl,on,es.doc 3 May 16, 1997 RESIDENTIAL CARE FACILITIES Group Homes) neighborhoods, property values increased at a higher level after the group home moved into the neighborhood. Crime and Nuisance Reports It is not unusual for a home in Richfield to have one to two police calls in a year. An apartment building will generate a similar number of calls per unit in a year. A review of police records of the number of calls for service (including medical service) during 1996 and the first four months of 1997 indicate that, in general, the residential care facilities in Richfield did not generate a higher than normal number of police calls. h:cdadmin \pc@z \gphomes.doc 4 May 16, 1997 Planning Commission Letter July 22, 1997 Agenda Section: New Business Item #: 3 Letter #: 18 GENERAL INFORMATION Type of Request: Review Section 521 (Residential Districts) of the Zoning Ordinance: consider changes and provide feedback to staff relating to front setback reductions, lot coverage, height and size of accessory buildings. References: (see attached Citations section for excerpts) Zoning Code: 521.11 ANALYSIS Proposal: Reduced Front Setbacks: Last November the Planning Commission discussed the possibility of allowing reduced front setbacks to enable people to construct front porches and /or remodel their homes in other ways. Staff is bringing the issue back to the Planning Commission to discuss since there are several new Planning Commissioners that did not participate in the previous discussion. An outline is attached that goes over the ideas planning, housing and Inspections staff have developed. If the Planning Commission is in favor of the ideas presented, staff will have the ideas reviewed by the City Attorney and prepare a formal ordinance amendment for review at a future meeting. Lot Coverage: In the early 1990s, the Zoning Ordinance was amended to allow greater lot coverage (35 %) on lots smaller than 7,000 square feet. This was done in part to assist in the development of small lots through the Richfield Rediscovered program. The lot coverage for lots over 7,000 square feet was left at 25 percent or 2,500 square feet, whichever is greater. In the past couple of years (as the City has encouraged people to remodel their homes), staff have been seeing more instances where people want to exceed the allowable lot coverage. In staff's view, requiring a smaller coverage percentage for larger lots is inequitable. In effect, people with larger lots who likely have sufficient room to remodel their homes are penalized. While some lot coverage limitation is appropriate, the Commission may want to consider allowing an equal coverage percentage regardless of lot size. Allowable Garage Sizes: A complaint was received regarding the large height and size that the City allows for detached garages. The City currently allows garages up to 1,000 square feet in size and 14 feet in height. Garages cannot, however, be larger than the house in size (building envelope) and height if the house is smaller than 1,000 square feet in size and 14 feet in height. The Housing and Redevelopment Authority has expressed concern with the significant size and prominence of the garages that are being built with new homes through the Richfield Rediscovered program. The HRA has developed design guidelines encouraging people to minimize the appearance of garages so that the designs of new homes are more in character with the surrounding neighborhood. The Planning Commission may want to consider limiting the size and height of garages. (Note: reducing the allowable size and height will create nonconforming structures in the City. If a structure is nonconforming, it must come into conformance if it is ever replaced, relocated, expanded or structurally altered.) Neighboring communities provide the following restrictions on garage size and height: Bloomington: AREA - -1,000 sq. ft. (over 1,000 sq. ft. is a conditional use); HEIGHT - -no taller than principal structure (storage buildings limited to 10 feet) St. Louis .Park. AREA- -800 sq. ft. or 25% of the rear lot area, whichever is less; HEIGHT - -30 feet Minnetonka: AREA - -1,000 sq. ft. (total combined with any other accessory buildings) or no more than 30 percent of the area of the side or rear yard in which accessory buildings are located; HEIGHT - -12 feet Minneapolis: AREA- -676 sq. ft. or 10 percent of lot area, whichever is greater. Shed Heights: Inspections staff have received complaints about a couple of sheds that have been constructed. The sheds are built to the maximum allowable height for accessory structures, and the neighbors feel this height is excessive and detracts from the appearance of the neighborhood. Although the Zoning Ordinance does not allow two story sheds, the sheds are often constructed in such a way that they are just under the legal definition of two stories. The height for sheds is currently the same as it is for garages (14 feet). The City could consider establishing a different height for sheds and making that height more restrictive. Pictures of the tall sheds will be provided at the Planning Commission meeting. ACTION TO BE TAKEN Recommendation: Review and discuss the information and provide direction to staff to prepare or not prepare a Zoning Ordinance amendment for the different topics discussed. ZONING CODE: CITATIONS SECTION 521 - ZONING: RESIDENTIAL DISTRICTS 521.11. Required building setback and maximum height. Subdivision 1. Standards. The standards set out in this subsection apply in the R District. Subd. 2. Required setback and maximum height: TREE, E SINGLE RAMILI' 30 Ft, 25 Ft. 5 Ft. 12 Ft. 25 Ft. X 30 Ft. 25 Ft. 10 Ft. 12 R 25 Ft. A— :,E!sS.QR 30 Ft. 3 Ft. 5 Ft. 12 Ft. 14 Ft. xx WON WiD. 40 Ft. 30 Ft. 30 Ft. 30 Ft. 42 Ft. V F 58 40 Ft. 10 Ft. 10 Ft. 30 Ft. 15 Ft Reduced Front Setbacks 1. Allow front setback to be reduced to 20' or 25' for front porch and/or other building additions. 2. Reductions not allowed for garage additions (unless done as an integral part of house addition and /or subject to the design committee's discretion). 3. Limited to one -story additions (not including basement level). 4. Application should describe the need for the addition (e.g. dysfunctional kitchen, create master bedroom) and why it can't be accomplished within the normal setback requirements. 5. Require compliance with design guidelines. Design guidelines to ensure an addition that "fits" with existing structure Include provisions relating to roof lines /pitch, windows and exterior materials to match existing Full plans required Meet with Design Advisor to provide design ideas, as requested by City 6. May want to require notification of neighbors. 7. May want to consider not allowing reductions on lots that are adjacent to arterial/collector streets. 8. Building permit application should be reviewed by a design committee comprised of Design Advisor, Rehabilitation Specialist, Building Official (or designated representative), and Zoning Administrator review for compliance with ordinance regulations review for compliance with design guidelines review for compliance with Building Code committee may attach conditions for approval 9. "Advertise" new regulations Handout describing design expectations, process, checklist of things to do. Handout needs to make it very clear up front that permission to infringe on the setback isn't a given -- the design expectations are high. This issue needs to be reviewed with the City Attorney to make sure we have the ability to stop badly designed additions in the front. Marketing mailings, Your City, Remodeling Fair, Parade of Homes, Remodeling/Design Advisors Describe the concept in Your City ahead of time to solicit comments or come to a Planning Commission meeting May want to explore developing examples to give people ideas. 10. Would like to limit setback reductions to remodeling, although may make exceptions for undersized lots.