11-25-1997CITY Of RIOHFIELD
K«nninG commission
November 25, 1997
7:00 p.m.
Regular Planning Commission meeting of October 14, 1997 and October 28, 1997.
w .. >:;::: v:
ITEM #1 PC Letter #19 Amendment to Zoning Ordinance - Licensed and
Community Based Residential Care Facilities.
ITEM #2 PC Letter #20 Review Section 521 of Zoning Ordinance
ITEM #3 PC Letter #21 Consider Report by Don Brauer on City's Mitigation
Strategy
School Board
Community Services Advisory Commission
H RA
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."
MEMBERS PRESENT: Acting Chairperson Mitchell Hadley; Commissioners: Brenda
Bjorklund, Pamela Dmytrenko, David Gepner, and Bill Kilian.
MEMBERS ABSENT: Daniel Linnihan, Terry Ahlstrom, Roger Gordon, Kevin Hansen
COUNCIL LIAISON: Martin Kirsch, Mayor
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 Chairperson Hadley at 7:04
p.m. Commissioner Dmytrenko was appointed Acting Secretary and noted that a quorum was
not present. Chairperson Hadley reviewed the Bylaws and Rules of Procedure of the City
Planning Commission under Chapter III, Section 305.05, Subdivision 1 -8, Part I, Section 5,
stating that without a quorum, no action may be taken, but that testimony could be taken to be
used later when a quorum was met. Chairperson Hadley stated that Commissioner Bjorklund
was expected to arrive at a later time, so the Commission would start with Item #4 which did not
require action.
NEW BUSINESS
Information Letter #20
ITEM #4 Discussion of moratorium on development along I -494
Zoning Administrator Urban review the staff report stating that the City Council adopted
a resolution establishing a moratorium along the I -494 corridor from Pleasant Avenue to Trunk
Highway 77 that would remain in effect until September, 1998. Ms. Urban explained that the
zoning along the freeway is inconsistent with the Comprehensive Plan. The Council has directed
the Planning Commission to study the zoning.
Zoning Administrator Urban continued by presenting several maps showing the industrial
zoning along the I -494 corridor, the Comprehensive Plan of the same corridor, the current use of
the corridor, and the industrially zoned properties throughout the City.
October 14, 1997
Page 2
The Commission discussed the length of the moratorium, the process by which a
favorable development project would have to go through should one be presented to the City
during the moratorium, and the possible elimination of all industrial zoning within the City of
Richfield.
PUBLIC HEARINGS
CASE 97- CUP -10, 6519 Nicollet Avenue
ITEM #1 China Star Restaurant
Conditional use permit to allow 90 -seat restaurant
Zoning Administrator Urban reviewed the staff report stating that the applicant proposes
to open a 90 seat, buffet style restaurant at 6519 Nicollet Avenue. She added that staff had
received a letter from a neighbor stating that odors from the past restaurant had been upsetting to
the neighborhood. The neighbor felt that restaurant odors would continue if a Chinese %estaurant
were allowed to open at this location.
Mr. Jeff Hogue, representative of Midwest Management, Inc. 750 Pennsylvania Ave. S.,
Minneapolis, MN 55426, stated that a new ventilation and HVAC system was being installed in
the building in order to contain odors and smoke that might result from the Chinese -style
cooking. An HVAC specialist was looking into the situation in order to determine which type of
ventilation system would best suit this use. He added that in the past, the ventilation system
carried smoke and odors out of the back of the restaurant. The new system would take all fumes
out of the restaurant through the roof over a neighboring tenant.
The applicant, Ms. Corrina Cheng, stated that she has had several restaurants throughout
the Twin Cities area during the last 20 years, but currently has two in operation. She further
stated that nearly all food prepared would be stir fried.
Mr. Denny Czupryna, 6521 1st Avenue, stated that in the past, plumes of smoke were
emitted from restaurants in this location that would be carried into the nearby neighborhoods. He
added that restaurants currently located near the site emit odors that can be smelled nearly all day
long. He felt that if this restaurant were to be allowed to open at this site, it would only
exacerbate the current situation.
October 14, 1997
Page 3
Mr. Czupryna stated that the previous restaurant had installed a ventilation system that
cleared up the smoke problem, but did nothing to remove the odor of food from permeating the
neighborhood to the east.
Commissioner Kilian asked Ms. Cheng the hours of operation for the proposed
restaurant. She stated that the restaurant would be open from 11:00 a.m. through 9:00 p.m.,
seven days per week.
Discussion ensued regarding how odor could be restricted. Zoning Administrator Urban
stressed that odor is a subjective issue that would be difficult to measure.
M/Kilian, SBjorklund to close the public hearing.
Motion carried: 5 -0
Zoning Administrator Urban reviewed the criteria that the Commission can use to turn
down the request for a conditional use permit, including the condition that the use would not
have an undue, adverse effect upon the public health, safety, or welfare.
Commission Bjorklund stated that she felt that she couldn't turn down the
recommendation because the ordinances weren't specific enough to deny a request based on
odor. She further stated that, in her opinion, any odor from the food would not have an undue,
adverse effect upon the public health, safety, or welfare of neighboring residents.
Commissioner Kilian agreed with Commissioner Bjorklund, adding that Richfield is
comprised of businesses as well as residential areas. Both residents and business owners must
live and do business within close proximity to one another. In addition, he felt that by installing
the proper HVAC unit and maintaining a proper cleaning schedule, any undue odors could be
contained.
M/Kilian, S /Gepner to recommend approval of the conditional use permit with
stipulations that:
1. Plans for a trash enclosure be submitted and approved by the Community Development
Director and Health Department,
2. The conditional use permit be recorded with the County, pursuant to Minnesota statutes
section 462.36, subdivision 1,
3. The applicant work with representative from the Health Department and Community
Development Department to develop a plan for addressing odors acceptable to both.
Invitations shall be made to neighboring residents for a representative to provide feedback on
the plan.
Commissioner Dmytrenko stated that, in her opinion, any odor resulting from the cooking
would be unpleasant for neighboring residents. She felt that once a restaurant was in place, there
wouldn't be any way to objectively decide whether or not the odor was bearable or not. Even if
October 14, 1997
Page 4
neighbors were to complain about the odors, there wouldn't be a "next step" to control them if
the HVAC system or cleaning schedule didn't work.
Chairperson Hadley stated that, although he wasn't against the restaurant moving into the
City of Richfield, he felt that there were better places for the restaurant to be located.
Commissioner Gepner agreed with Commissioner Kilian, stating that Richfield
businesses and residents live in such close proximity that it wouldn't be possible to limit odor
from restaurants. He further stated that if odor could be used to keep one restaurant from
opening, then no restaurant would be able to open in the City.
Chairperson Hadley stated that the purpose of having a public hearing was to get the
opinions and viewpoints from the residents of Richfield. He further stated that he didn't want to
hold a public hearing and then just make a vote contrary to what was stated by the public.
Motion carried: 3 -2 (Dmytrenko and Hadley opposed)
CASE 97 -RZ -2, 300 West 78th Street
ITEM #2 City of Richfield
Rezoning of property from C -3 to C -2
Zoning Administrator Urban reviewed the staff report stating that the property formerly
known as the Lampert Lumber site is currently being marketed for development. The property is
currently zoned C -3, which has strict regulations and was created as a means of encouraging
higher density development. By rezoning the property to C -2, greater flexibility would be given
to market the site for redevelopment as the typical length of time to rezone a property could be a
disincentive to developers.
Staff discussed with the Commission the differences between C -3 and C -2 zones. In
addition, staff explained that there were three current or potential offers to develop the property.
M/Kilian, S/Bjorklund to close the public hearing.
Motion carried: 5 -0
M/Kilian, S/Bjorklund to recommend approval of the rezoning of 300 West 78th Street
from C -3 to C -2.
Motion carried: 5 -0
October 14, 1997
Page 5
NEW BUSINESS
Information Letter 419
ITEM #3 Ordinance Amendment to allow building heights
in C -2 district along I -494 of up to 135 feet
Zoning Administrator Urban reviewed the staff report stating that current ordinance limits
building height in the C -2 district along I -494 to 40 feet. Several buildings have been
constructed at heights over 40 feet, including the Minnesota School of Business, Hampton Inn,
Meridian Crossings and Richfield Towers. The developers for each of these projects had to
obtain a variance or rezone the property to a planned district.
Commissioner Kilian questioned why 135 feet was chosen as a height limit. Zoning
Administrator Urban explained that 135 feet is the height of the tallest existing structure in
Richfield, so that seemed to be an acceptable height for development in the City.
Commissioner Kilian suggested that the height limit be set at 100 feet, closer to the
height of the existing tall buildings along the freeway. Commissioner Dmytrenko pointed out
that the commercial area to the west of I -35W do not have the same separation from the
residential area as that east of I -35W. She suggested that the height increase be limited to east of
1 -35W.
M/Kilian, SBjorklund to recommend changing the height limit in the C -2 district east of
I -35W, north of 1 -494, west of Trunk Highway 77, and south of 77th Street to 100 feet.
Motion carried: 5 -0
APPROVAL OF MINUTES
M/Dmytrenko, S/Kilian to approve the minutes of the regular Planning Commission
meeting of August 26, 1997.
Motion carried: 5 -0
October 14, 1997
Page 6
Community Services Advisory Commission: No report.
HRA: Zoning Administrator Urban stated that the co- owners of Richfield Floral and
Nursery had approached the HRA Commission stating that the cost estimates for the expansion
of their store had been higher than expected. Unsure of what the owners were asking for, the
HRA asked the owners to make a proposal to the HRA at a future time with a specific request.
City Council: Mayor Kirsch stated that a Special City Council session would be held on
Wednesday, October 15, 1997 so that City Manager Jim Prosser could appoint the new Public
Safety Director.
ADJOURNMENT
The meeting was adjourned by unanimous consent at 9:25 p.m.
Pam Dmytrenko
Acting Planning Commission Secretary
Planning Commission Minutes
Study Session
October 28, 1997
MEMBERS PRESENT: Chairperson Daniel Linnihan; Commissioners: Terry Ahlstrom,
Brenda Bjorklund, Pamela Dmytrenko, David Gepner, Roger
Gordon, Mitchell Hadley, and Bill Kilian.
MEMBERS ABSENT: Kevin Hanson
COUNCIL LIAISON: Martin Kirsch, Mayor
STAFF PRESENT: John Thom, Utilities Superintendent
Carol Kaszynski, Data Processing Technician
Julie Urban, Zoning Administrator
Brian S. Mehl, Community Development Technician
p.m.
The Planning Commission meeting was called to order by Chairperson Linnihan at 7:30
NEW BUSINESS
ITEM #1 Presentation on Implementation of the Richfield
Geographic Information System (GIS)
Data Processing Technician Carol Kaszynski, Public Works Department, made a
presentation to the Planning Commission regarding the City's Geographic Information System
GIS). She spoke of the process used to determine whether or not the City should invest in GIS,
the criteria set forth in selecting and utilizing GIS, and the ways in which different departments
within the City can share and use data.
Zoning Administrator Urban showed several examples of maps that were produced by
GIS and spoke of the flexibility that GIS offers in order for data to be processed.
Data Processing Technician Kaszynski gave a demonstration of GIS to the Planning
Commission, showing different uses that GIS can be used for.
Discussion ensued regarding the possible uses of GIS in future projects within the City.
October 28, 1997
Page 2
ADJOURNMENT
The meeting was adjourned by unanimous consent at 8:30 p.m.
Mitchell Hadley
Planning Commission Secretary
Planning Commission Letter
November 25, 1997
Agenda Section: Old Business
Item #: 1
Letter #: 19
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
Memo from Karen Carlson, law clerk, to Scott Riggs, attorney,
Kennedy & Graven
Miscellaneous Fact Sheet on Residential Care Facilities
Information:
City Council: Planning Commission action would set a City Council first reading
date of December 8, 1997.
ANALYSIS
History: This spring, staff discovered that the City's Zoning Ordinance is in
conflict with state law as it relates to licensed residential care facilities, or
group homes, for disabled persons.
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.
History: 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 persons. 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.
The City Attorney has recommended that the City make its ordinance
consistent with state law. Along with changing the specific provision that
came to the City's attention, staff has reviewed all provisions relating to
licensed residential care facilities and, as a result, recommends that several
provisions be changed.
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.
State statute does not require cities to allow programs larger than six
persons in single family districts. Some court cases have argued that limiting
the number of handicapped persons when the number of related family
members is not limited, is not legal. There does not, however, appear to be
a final decision on this issue so staff recommends that the City's ordinance
follow the state guideline.
The ordinance amendment also makes changes to the MR -2 (medium
density multiple residence) and MR -3 (high density multiple residence)
residential districts. State statute allows for programs serving more than six
people to be considered conditional uses if the conditions imposed are not
more stringent than those imposed on multiple housing for non - handicapped
people. The ordinance changes would treat the programs the same as an
apartment building for non - handicapped people would be treated.
In the MR -2 district, apartments with more than eight units require a
conditional use permit so a group home with more than eight units would
also need a conditional use permit. In the MR -3 district, apartments with
more than 20 units require a conditional use permit so a group home with
more than 20 units would also need a conditional use permit.
The quarter mile distance requirement between programs would be applied
to these larger programs because it is applied at the state level through
licensing.
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.
The difficulty with this issue is that there are state and federal laws that
apply to a municipality's treatment of group homes. In addition, the
courts have not decided all aspects of this issue so the direction that a
City is to take is somewhat uncertain. In cases where the final answer is
unclear, staff recommend that the City's ordinance follow the guidelines
set by state statute.
The groups of people covered by state law governing licensed residential
treatment facilities includes persons who are developmentally disabled,
mentally ill, chemically dependent, and youth in crisis.
The federal Fair Housing Act covers a broader range of protected
groups of people. Courts have ruled that groups such as persons who
are HIV - positive and elderly persons who require assistance in daily
living are covered by the Fair Housing Act.
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 City Attorney has advised that the existing ordinance is
unenforceable and should be amended.
3. State Statute and federal law provide 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.
Single Family Zoning
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 fewer persons
aS idea c F i ceetien c„ n, Subd 2 of this ed- 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 pen-nit provisions outlined in Section 546.05 of this code.
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
as idea feF in Seetien :2 i.2,. Subd 2 e f this eede 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-
I District, and are subject to the conditional use permit provisions outlined in Section 546.05 of this code.
V. Subsection 52 1.39, 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 -1
District.
Subd. 4. Licensed residential care facilities or community based residential care facilities serving
six or fewer persons
f _ in eeetien 521 43 Subd 2 e fthis eed-e Care facilities located in the MR -1as
District shall be subject to the same zoning regulations as two family dwellings in the MR -I
District.
VI. 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 -1 District, and are subject to the conditional use permit provisions outlined in Section 546.05 of this
code.
Multi- Family Zoning
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 with
eight or fewer units, provided such facilities serving more than sip: persons 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.
VIII. 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 community based residential care facilities with
nine to 25 units.. provided they are not located within 1/4 mile of another such facilityse ert
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 521.8 1, 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. 4. Licensed residential care facilities or community based residential care facilities with 20
or fewer units, provided they 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 with
more than 20 units sem,ing seven eF fnefe pefs , provided such facility is noteF fiftpifities
whieh ace- located 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.
470 Pillsbury Center
200 South Sixth Street
Minneapolis MN 55402
612) 337 -9300 telephone
612) 337 -9310 fax
e -mail: arms @kennedv- gra%*cn.com
CHARTERED
CORRINE H. THOMSON
Attomev 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, subd. :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
Julie Urban
April 30, 1997
Page 2
pry nless o n gl 3 .. (1) the existi ng residential
program rs the commissioner of health; (2) the
town, municipality, or county zoning authority runts the residential program a
conditional use. or special use pemut; -(3) the program selves six nr fewer persons
and is not located in a city of the first class; r is osier care far 4 ,e
in.n. tat.. _SA. , su 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 in 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)
nF i_ i'.
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. 11, §
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. Stall. 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.11 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
trom the spacing provisions of section 245A.11. The City of
Ne- 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
hosrttals. An issue has arisen with respect to the ordinance
because of a proposed residential program which would serve
tour individuals with mental retardation. The new program
could 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. 2-i5A that are murc restt ictivc 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. 14ld- 2,402b) 7/17/90
for persons with mental illness. Northwest Residence. Inc. •.
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 resk!:ntinl 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 nJ' the following conditions apply: (I) the exisnng
residential program is located in a hospital licensed br Meg
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 -
fa--nily residential use of property for the purposes of
zoning and other land use regulations.
Minn. Stat. § 245A.11. subd. 2 (1988). See also Minn. Stan. §
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.
Scat. § 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, t-he
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 program residents is interpreted narrowly. Thu:,, in
Northwest Residence, Inc., the court stated that section
245.812 (1982) (the predecessor provision to section
245A.1 1):
C)onstitutes 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 it 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, Ill Attorney General
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, .tune 20, 1986, distinguished. Minn. Coast. art.
VI, §§ 7. 8.
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. V1, § 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.
MEMORANDUM
DATE: October 9, 1997
TO: Scott Riggs
FROM: Karen Carlson
RE: RC 160 -5; Residential Care Facilities
ISSUES
Julie Urban at the City of Richfield requested the following information regarding licensed
residential care facilities:
1) What types of populations are served by licensed residential care facilities? Are ex-
convicts included in the definition?
2) Are these same groups covered by the Fair Housing-Act? Does the Fair Housing Act also
cover the elderly and HIV - positive persons?
Julie said in her letter that it is her understanding that, pursuant to Minnesota Statutes Chapter
245 (the Department of Human Services statute), persons that may be served by licensed
residential care facilities are the developmentally disabled, mentally ill, chemically dependent, and
youth in crisis.
DISCUSSION
A. The Adult Mental Health Act
Chapter 245 of the Minnesota Statutes includes the Adult Mental Health Act and the
Children's Mental Health Act. The Adult Mental Health Act, set out at Minn. Stat. §§ 245.461-
245.4711, directs the Commissioner of Human Services to create an adult mental health system.
The Act defines "residential treatment" as:
CARLSK131460
RC160 -5 1
A] 24- hour -a -day program under the clinical supervision of a mental health
professional, in a community residential setting other than an acute care hospital
or regional treatment center inpatient unit, that must be licensed as a residential
treatment program for adults with mental illness under Minnesota Rules parts
9520.0500 to 9520.0690 or other rules adopted by the commissioner.
Minn. Stat. § 245.462, subd. 23 (emphasis added). The rules referred to in § 245.462, subd. 23
are based in part on Minn. Stat. § 245A.02, subd. 14, which defines the term "residential
program" to include programs that provide treatment to five or more persons whose primary
diagnosis is mental retardation or a related condition or mental illness. See, Minn. Rules, part
9520.0500.
As indicated in § 245.462, subd. 23, residential treatment facilities are facilities that treat
mentally ill persons. The statute defines the term "mental illness" as:
A]n organic disorder of the brain or a clinically significant disorder of thought,
mood, perception, orientation, memory, or behavior that is listed in the
International Classification of Diseases or the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders, and that seriously limits
a person's capacity to function in primary aspects of daily living such as personal
relations, living arrangements, work, and recreation.
Minn. Stat. § 245.46.2, subd. 20. In addition, the rules regulating licensing of residential
programs for adult mentally ill persons defines a "mentally ill person" as:
A] person who has been diagnosed by a physician, a licensed psychologist, or a
licensed consulting psychologist as having a condition which results in an inability
to interpret the environment realistically and in impaired functioning in primary
aspects of daily living such as personal relations, living arrangements, work, and
recreation; or which is listed in the International Classification of Diseases (ICD -9-
CM), code range 290, 293 -302.9 or 306 - 314.9, or the corresponding code in the
American Psychiatric Association's Diagnostic and Statistical Manual of Mental
Disorders (DSM -III), Axes I, II, or III.
Minn. Rules, part 9520.0510, subp. 20.
Based on the above definitions, it is clear that persons who are mentally ill and mentally
retarded are entitled to residential care facility services. Furthermore, based on the language of
the statute, it appears that "developmental disabilities" are included in the term "mentally
CARLSK131460
RC160 -5 2
retarded ". Although I found no direct reference to "developmental disabilities" in the definitional
sections of the statute or the rules, there is a reference in § 245.072 to "developmental
disabilities" -- specifically, the statute provides for the creation in the Department of Human
Services of a division for persons with developmental disabilities, for the purpose of enforcing
laws relating to mental retardation and related conditions. See, Minn. Stat. § 245.072.' Finally,
as to ex- convicts, I have found no authority indicating whether or not ex- convicts are eligible for
residential care facility services; hence, I assume they are not covered.
B. The Children's Mental Health Act
The Children's Mental Health Act, set out at Minn. Stat. §§ 245.487- 245.490, provides
for development of clinical services for emotionally disturbed children. The Act defines
residential treatment" as:
A] 24- hour -a -day program under the clinical supervision of a mental health
professional, in a community residential setting other than an acute care hospital
or regional treatment center inpatient unit, that must be licensed as a residential
treatment program for children with emotional disturbances under Minnesota Rules
parts 9545.0900 to 9545.1090 or other rules adopted by the commissioner.
Minn. Stat. § 245.4871, subd. 32 (emphasis added). The Act further defines a "child with severe
emotional disturbance" as a child who has an emotional disturbance and who meets one of the
following criteria:
1) the child has been admitted within the last three years or is at risk of being
admitted to inpatient treatment or residential treatment for an emotional
disturbance; or
2) the child is a Minnesota resident and is receiving inpatient treatment or
residential treatment for an emotional disturbance through the interstate compact;
or
3) the child has one of the following as determined by a mental health
professional:
The term "related conditions" is defined as a condition related to mental retardation,
including, but not limited to cerebral palsy, epilepsy, autism, and Prader -Willi syndrome. See,
Minn. Stat. § 252.27, subd. 1 a.
CARLSK131460
RC160 -5 3
i) psychosis or a clinical depression; or
ii) risk of harming self or others as a result of an emotional
disturbance; or
iii) psychopathological symptoms as a result of being a victim of
physical or sexual abuse or of psychic trauma within the past year;
or
4) the child, as a result of an emotional disturbance, has significantly impaired
home, school, or community functioning that has lasted at least one year or that,
in the written opinion of a mental health professional, presents substantial risk of
lasting at least one year.
Minn. Stat. § 245.4871, subd. 6. Based on this definition, I think we can safely tell Julie that
youth in crisis" are entitled to participate in residential care facilities.
C. The Housing Finance Agency Statute
The Housing Finance Agency Statute, Minn. Stat. Chapter 462A, provides for assistance
in providing housing for persons of low and moderate incomes. The statute defines "residential
care facility" as:
A] living unit established primarily for the accommodation and treatment of
mentally ill, mentally retarded, physically handicapped, and drug dependent
persons.
Minn. Stat. § 462A.03, subd. 19. Clearly, chemically- dependent persons, as well as the mentally
ill and mentally retarded, are covered under this statute.
D. The Fair Housing Act
The Fair Housing Act, 42 U.S.C. § 3601, et sec.. (the "FHA "), prohibits discrimination
in the sale or rental of housing on the basis of race, color, religion, sex, familial status, national
origin, or handicap. See, 42 U.S.C. § 3604. In- response to Julie's question about what groups
are covered by the FHA and whether that includes the elderly and persons infected with HIV, the
statute clearly states that it applies to the handicapped, and the term "handicapped" includes HIV-
positive persons and elderly persons who require assistance in daily living. Support Ministries
V. Village of Waterford. N.Y., 808 F.Supp. 120, 129 (N.D.N.Y. 1992) (village violated Fair
CARLSK131460
4RC160 -5
Housing Act by enacting and applying zoning ordinance defining "boarding house" so as to
prevent establishment of adult care facility for persons infected with HIV; HIV - positive persons
are "handicapped" within the meaning of the Fair Housing Act); Baxter v. City of Belleville, Ill.,
720 F.Supp. 720, 728 -729 (S.D. Ill. 1989) (persons with AIDS are "handicapped" for purposes
of the Fair Housing Act); See, K Care, Inc. v. Town of Lac Du Flambeau, 510 N. W.2d 697, 700
Wis. App. 1993) (town failed to make,reasonable accommodations required by the Fair Housing
Act by refusing to grant permission to plaintiff to build a residential facility for elderly persons
who were "handicapped" within the meaning of the Fair Housing Act because they were frail and
required assistance in daily living).
CONCLUSION
Under the Adult Mental Health Act, licensed residential care facilities may serve the
mentally ill and mentally retarded/developmentally disabled. Under the Children's Mental Health
Act, residential care facilities may serve "youth in crisis ". Under the Housing Finance Agency
Statute, residential care facilities serve the mentally ill, mentally retarded, physically handicapped,
and drug dependent persons.. And under the Fair Housing Act, care facilities may also serve
persons infected with HIV and elderly handicapped persons.
CARLSK131460
RC160 -5 5
RESIDENTIAL CARE FACILITIES
Group Homes)
Federal Level
Beginning in the late 1960s, a national movement toward deinstitutionalization 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 enabling 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 Minnesota Department of Human Services (DHS) Licensing Act requires that
programs serving more than six persons be located 1,320 feet (1/4 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.
Frograms 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 \p&z \gphomes.doc 1 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 program, it was not required to be
licensed by the State because of the small number of residents being served.
h:\:d.idt71111\p&z\gphollles.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 Properly 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
h: \cdadmin \p&z \gphomcs.doc 3 1 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.
The statistics on group home properties indicate the following information:
Five homes generated no calls during this 16 -month period.
Four homes generated one call during this period.
Two homes generated two calls during this period.
One home generated three calls.
Two homes generated four calls.
One home generated 15 calls (1 Z of which were medical /health related calls).
One 1 1 -unit apartment building generated 12 calls.
The remaining two apartment buildings generated fewer than one call per unit.
h: \cdadmin p &zlgphomes.doc 4 May 16, 1997
clr nr
Planning Commission Letter
RICHFIELD November 25, 1997
Agenda Section: Old Business
Item #: 2
Letter #: 20
GENERAL INFORMATION
Type of Request: Review Section 521 (Residential Districts) of the Zoning Ordinance:
consider changes relating to lot coverage and height and size of
accessory buildings.
References: (see attached Citations section for excerpts)
Zoning Code: 521.07, 521.09, 521.11
ANALYSIS
Proposal: 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: The Planning Commission discussed the
allowable height and size of garages. Garages up to 1,000 square feet in
size and 14 feet in height are currently permitted.
Staff recommends that the current size and height of garages be maintained.
Many existing garages would be made nonconforming by reducing the
allowable garage size. If a structure is nonconforming, it must come into
conformance if it is ever replaced, relocated, expanded or structurally
altered. In addition, there is significant demand for larger garages. Any
change to this provision of the ordinance should include a communications
plan and allow for public input.
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). A
separate height could be established for accessory buildings that are not
garages. A maximum of height of 12 feet, measured from ground level to
the highest point of the roof, would be appropriate.
A sample ordinance amendment for the R (single family district) is attached.
The proposed changes for lot coverage would also apply to the R -I (low
density residential) district and the changes for shed heights would apply to
the R -I and MR -1 (two family residence) districts.
ACTION TO BE TAKEN
Recommendation: 1. Recommend that the City Council amend the Zoning Ordinance,
Section 521.09, to allow a maximum lot coverage of 35 percent for
lots over 7,000 square feet.
2. Recommend that the City Council amend the Zoning Ordinance,
Section 521.11, to restrict the height of non - garage accessory
structures to 12 feet.
Basis: 1. The City actively encourages people to remodel their homes,
however, the current maximum lot coverage penalizes people with
large lots wanting to remodel.
2.. The lot coverage for smaller lots was increased several years ago. It
would be equitable to allow greater lot coverage for larger lots as
well.
3. The City has received complaints regarding the excessive height of
accessory sheds.
4. The Zoning Ordinance does not allow two story sheds; however,
sheds are being constructed in such a way that they are just under
the legal definition of two stories.
Alternative 1. Recommend that the City Council not amend the Zoning Ordinance,
Recommendation: Section 521.00.
2. Recommend that the City Council not amend the Zoning Ordinance,
Section 521.11.
3. Recommend that the City Council amend the Zoning Ordinance,
Section 521.05, to restrict the size of private garages to 800 square
feet.
ZONING CODE:
CITATIONS
SECTION 521 - ZONING: RESIDENTIAL DISTRICTS
521.05. Accessory uses. Subdivision 1. The uses listed in this subsection are allowable accessory uses in
the R District.
Subd. 2. Private garages which do not exceed 1,000 square feet in gross floor area, and which do
not exceed an aggregate of 1,200 square feet in gross floor area when combined with all other
accessory buildings and attached garages on the lot.
521.09. Lot area, width, depth, and coverage. Subdivision 1. Standards. The standards set out in this
subsection apply in the R District.
Subd. 4. Maximum lot coverage:
Lots of 7,000 S . Ft. or less: 35%
Lots of over 7,000 S . Ft.: The greater of 25% or 2,500 S . Ft.
Non - residential uses: 50%
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:
SIDE SIDE MAiMLAI:
USE FR(1NT in REAR
r;TREETSlDE . H.EIGHT..:.
SIIVGLE:FAMILY 30 Ft. 25 Ft. 5 Ft. 12 Ft. 25 Ft.
TWO *YA MILY 30 Ft. 25 Ft. 10 Ft. 12 Ft. 25 Ft.
30 Ft. 3 Ft, 5 Ft. 12 Ft. 14 Ft.
NON- RESIDEN:TiAL .. ? 40 Ft. 30 Ft. 30 Ft. 30 Ft. 42 Ft.
ACCESSORY 40 Ft. 10 Ft, 10 Ft. 30 Ft. 15 Ft.
BILL NO.
AMENDMENT TO SECTION 521
OF THE ORDINANCE CODE OF THE
CITY OF RICHFIELD
THE CITY OF RICHFIELD DOES ORDAIN:
1. Section 521 of the Zoning Ordinance of the City of Richfield entitled "Zoning:
Residential Districts" is hereby amended by amending Section 521.09, subd. 4 to read
as follows:
521.09. Lot area, width, depth, and coverage. Subdivision 1. Standards. The
standards set out in this subsection apply in the R District.
Subd. 4. Maximum lot coverage:
Lots ef 35%
Lots of GveF 7,0Q0 Sq--4- Tbe-gFeateF of 0
MAXlMU1Vl..
Residential Lots: 35%
Non - residential uses: 50%
2. Section 521 of the Zoning Ordinance of the City of Richfield entitled "Zoning:
Residential Districts" is hereby amended by amending Section 521.11, subd. 2 to read
as follows:
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:
SIDE SIDE....... .... ................... MAXlMU1Vl..
Xso USE f ONT. REAR INTER/4R ...'. 3T.REElS/DE.......H.
SfNGL'f .... .._ ....
TWO FAMILY:: 30 Ft. 25 Ft. 10 Ft. 12 Ft. 25 Ft.
CUP)
ACCESSORY ` 30 Ft. 3 Ft. 5 Ft. 12 Ft. 14 Ft.
GARAGE
AC:CESSORY:: 30. Ft 3 ft K.......... Ft . :...:..::..:::::::::: 12 Ft: 12 Ft_.:::: >`«::
o -G X.
40 Ft. 30 Ft. 30 Ft. 30 Ft. 42 Ft.
RESIDENTIAL
ACCESSORY:: 40 Ft. 10 Ft. 10 Ft. 30 Ft. 15 Ft.
Subd. 3. Height Measurement. For the purpose of non - garage accessory
structures, height is measured from the ground level to the highest point
of the roof.
Passed by the City Council of the City of Richfield, Minnesota this day of
1997.
Martin J. Kirsch, Mayor
ATTEST:
Thomas P. Ferber, City Clerk
Planning Commission Letter
November 25, 1997
Agenda Section: Old Business
Item #: 3
Letter #: 21
GENERAL INFORMATION
Type of Request: Consider a report by Don Brauer, planning consultant, on the status
of the City's airport mitigation strategy.
References: Selected excerpts from the Field Study of the Annoyance of Low
Frequently Runway Sideline Noise prepared by BBN Technology for
the City of Richfield, October 9, 1997.
ANALYSIS
History: At its May 27, 1997 meeting the Planning Commission heard from
Don Brauer regarding the relatively new issue of low frequency noise.
Mr. Brauer briefly reviewed the results of a study which was
conducted by professional noise consultants to determine the potential
impact of low frequency noise resulting from the proposed north/south
runway at the Minneapolis /St. Paul International Airport. It was
pointed out that low frequency noise will likely be a significant
problem for residents along Cedar Avenue and beyond if the new
runway is built. It was further noted that the Planning Commission
may asked to consider changes in the Comprehensive Plan based on
these noise impacts and the subsequent mitigation plan. What was not
known was the extent of the impact.
More recently another study was undertaken to help the City further its
understanding of the noise impacts of the proposed north/south
runway. This study was undertaken to determine the level of
annoyance associated with low frequency noise at an existing Airport.
Please refer to the attached Introduction, Summary and figure 3 from
that report. As you can see in figure 3, the area of impact is well
beyond Cedar Avenue.
Based on the information that has been gathered to date, it is becoming
apparent that the noise impacts in eastern Richfield that would result
from operations of the proposed north/south runway would be far
greater than was anticipated in the Comprehensive Plan. It is therefore
likely that in order to mitigate the negative impacts of this low
frequency noise on residents in eastern Richfield a much greater area
will need to be considered for land use change and redevelopment. At
this writing a detailed redevelopment plan has not been prepared,
however, land use changes are a integral part of the overall mitigation
strategy.
The attached map is a composite of the sub area plans for eastern
Richfield found in the Comprehensive Plan. The heavy dashed line
represents the area that will be impacted by the proposed runway. The
noise level in this area will be comparable to the areas which currently
qualify for insulation from high frequency noise. Unfortunately,
insulation does not reduce low frequency noise. The lighter checkered
line represents the currently suggested limits of redevelopment.
Mr. Brauer will be present at the November 25 Planning Commission
meeting to discuss the mitigation strategy in general and the potential
land use implications in particular. More detailed discussions of the
mitigation strategy, potential land use changes and Comprehensive
Plan amendments can be expected in the near future.
ACTION TO BE TAKEN
Recommended Discuss the role of the Planning Commission in implementing the
Action: land use component of the mitigation strategy.
BBN Report No. 8211
FIELD STUDY OF THE ANNOYANCE
OF LOW FREQUENCY RUNWAY
SIDELINE NOISE
Sanford Fidell, Laura Silvati, Karl Pearsons, Stephen Lind, and Richard Howe
9 October 1997
Prepared by:
BBN TECHNOLOGIES
A Unit of GTE Internetworking
21128 Vanowen Street
Canoga Park, California 91303 -2853
Prepared for:
CITY OF RICHFIELD
Office of the City Manager
6700 Portland Avenue
Richfield, Minnesota 55423 -2599
D
BBN
WtOLOGffi
BBN REPORT No. 8211
1
VaRODUCTION
This field study of the annoyance of low frequency runway sideline noise was undertaken at the
Mquest of the City of Richfield, Minnesota to further its understanding of the potential noise impacts of a
proposed
North/South runway (17/35) at Minneapolis -St. Paul International Airport (MSP). Prior field
of the low frequency noise produced by aircraft operations on an existing runway at MSP
hind, pearsons and Fidell, 1997) indicated that aircraft operations on the proposed new runway would
produce rumbling sounds in a large area of eastern Richfield, with characteristically longer onset and offset
Ames than those of aircraft flyovers.
Low frequency sideline noise from the proposed runway would also be capable of producing
perceptible vibration and secondary emissions (rattling noises audible inside residences) in areas of Richfield
as many as a dozen blocks to the west of the new runway. However, the likely extent of the annoyance
associated with such vibration and rattle could not be directly determined from the acoustic measurements
of Lind et al. (1997). The present study developed information about the annoyance of low frequency
aircraft sideline noise through direct questioning of residents of an appropriately situated community at an
existing airport.
Section 2 of this report contains general information related to the purpose and design of the current
study. Section 3 describes the methods used to collect information about low frequency aircraft noise and
reactions to it. Section 4 presents the results of the study. Section 5 discusses the application of these
findings to Richfield. A Glossary defines acoustic terms as used in this report. Three Appendices contain
supplementary information, including the questionnaire and a narrative account of findings.
No. 8211
BBN ,IEC IOt.oG s
BBN REPORT No. 8211
SUMMARY.-
A social survey of community response to runway sideline noise (including low frequency aircraft
noise[ potentially capable of causing vibration and rattling sounds inside dwellings) was undertaken in a
neighborhood in a geographic position relative to an operating runway at Los Angeles International Airport
LAX) similar to Richfield's position with respect to a proposed Runway 17/35 at Minneapolis -St. Paul
international Airport (MSP). A structured interview elicited information about annoyance due to aircraft
noise in general, notice of vibration or rattling sounds due to aircraft, annoyance due to such sounds, and
actions taken to. lessen rattling in respondents' homes.
A total of 644 respondents residing between 1,000 and 5,000 feet to the side (south) of Runway 25R
at Los Angeles International Airport completed a brief telephone interview about neighborhood living
conditions in general and aircraft noise in particular. Three sets of simultaneous acoustic measurements
were made at subsets of seven points in the interviewing area to quantify typical outdoor low frequency noise
bevels created by individual aircraft operations. Figure 1 shows the estimated low frequency aircraft noise
levels in contour intervals constructed from these measurements. Outdoor low frequency aircraft noise
levels in the interviewing area varied over a 20 dB range, from about 70 dB to about 90 dB.
Figure 2 compares the cumulative percentages of respondents who noticed aircraft- induced vibration
or rattle in their homes, who were annoyed in any degree with such noise, and who were highly annoyed with
such noise, all with respect to outdoor low frequency noise levels at their residences.
The survey data suggest that an outdoor low frequency aircraft noise level of 85 dB is a reasonable
threshold of low frequency runway sideline noise impact in Richfield. Exposure to low frequency aircraft
noise at levels higher than 85 dB in El Segundo was considered highly annoying by a comparable proportion
of neighborhood residents to that considered by FAA to be consequentially impacted by long -term aircraft
noise exposure at an (A- weighted) level of Ldn = 65 dB.
The right panel of Figure 3 shows the portion of the residential area to the west of Cedar Avenue in
which low frequency sideline noise is expected to exceed 85 dB due to operations on proposed Runway
17/35 at MSP. The left panel of Figure 3 shows the area with (A- weighted) noise exposure in excess of
Ld. =65 dB due to operations on the same runway, as estimated by Version 5.1 of FAA's NM computer
program. More than a dozen additional blocks of residential housing in eastern Richfield would be exposed
to low frequency noise levels in excess of 85 dB than to DNL values in excess of 65 dB.
Please see the Glossary for definitions of "low frequency aircraft noise" (or simply "low frequency noise") and
other acoustic terms as used in this report.
lx
o. 8211 BBN TgCHNOLOGIs BBN REPORT No. 8211
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Area between the DNL 65 dB contour
and the low frequency 80 dB contour
Area between the DNL 65 dB contour
and the low frequency 85 dB contour
Figure 3 Comparison of areas in Richfield within DNL and low frequency noise contours.
Upper panels show noise contours. Lower panels shade areas in which low
frequency sideline noise is expected to exceed 80 and 85 dB due to operations on
proposed Runway 17135 at MSP, and the area with (A- weighted) noise exposure in
excess of Ld„ = 65 dB due to all airport operations.
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