Zoning

Zoning Issues

This section is in process. Please check back frequently for updates.

 

“In cases where more specific design standards or guidelines have been developed as part of city council-approved master plans, small area plans, or other city-approved plans for specific sites, those shall take precedence.” (66.343)

 

A neighbor sent an email to Allan Torstenson, Senior Planner with the City of St Paul, requesting clarifcation about the variance and rezoning application by the developer for Dixies/695 Grand.  The following response was received:

The Dixie’s site, 695 Grand Avenue, owner and development team are requesting the following:

  • Rezone from B2 Community Business District and EG East Grand Avenue Overlay District to T3 Traditional Neighborhood District without the EG overlay district.
  • Conditional use permit for a 59’ 10” building height.
  • Variance for front setback from Grand Avenue (10’ maximum, 18’ proposed for the middle section of the building).

The requested rezoning, conditional use permit, and variance are just for the 695 Grand site itself, at the NW corner of Grand and St. Albans. 

 

Land Variances

It is a long-held tenet of planning that variances, which allow the applicant to depart from standard planning rules, were devised to alleviate “unnecessary hardship” based on “practical difficulties” caused by the land itself.  Often these were established to address a site that, after zoning code had been established, were rendered unbuildable due to the code (for example, an unbuildable steep slope or a strangely shaped or sized lot). In a city like Saint Paul, in which all lots are generally buildable in some way, variances should thus be rare and unusual. A commonly held misconception in relation to this is that financial hardship justifies a variance. As succinctly stated in “The Practice of Local Government Planning” (So, Getzels, et al, 1988) “the variance is supposed to alleviate a hardship that is inherent in a piece of land, not a hardship created by the owner’s financial legacy.” There is no reason that this developer should be granted several variances that could be construed to create adverse effects (loss of light an air, parking issue) on nearby households, simply to allow him greater profit from the development. This is antithetical to the concept of city planning as a whole, and ABetterWay-StP calls on the city to uphold these legal principles.

More on Variances from The League of Minnesota Cities:

A variance may be granted if enforcement of a zoning ordinance provision as applied to a particular piece of property would cause the landowner “practical difficulties.” For the variance to be granted, the applicant must satisfy the statutory three-factor test for practical difficulties. If the applicant does not meet all three factors of the statutory test, then a variance should not be granted. Also, variances are only permitted when they are in harmony with the general purposes and intent of the ordinance, and when the terms of the variance are consistent with the comprehensive plan.

1. Reasonableness

The first factor is that the property owner proposes to use the property in a reasonable manner. This factor means that the landowner would like to use the property in a particular reasonable way but cannot do so under the rules of the ordinance. It does not mean that the land cannot be put to any reasonable use whatsoever without the variance. For example, if the variance application is for a building too close to a lot line or does not meet the required setback, the focus of the first factor is whether the request to place a building there is reasonable.

2. Uniqueness

The second factor is that the landowner’s problem is due to circumstances unique to the property not caused by the landowner. The uniqueness generally relates to the physical characteristics of the particular piece of property, that is, to the land and not personal characteristics or preferences of the landowner. When considering the variance for a building to encroach or intrude into a setback, the focus of this factor is whether there is anything physically unique about the particular piece of property, such as sloping topography or other natural features like wetlands or trees.

3. Essential character

The third factor is that the variance, if granted, will not alter the essential character of the locality. Under this factor, consider whether the resulting structure will be out of scale, out of place, or otherwise inconsistent with the surrounding area. For example, when thinking about the variance for an encroachment into a setback, the focus is how the particular building will look closer to a lot line and if that fits in with the character of the area

 

Economic factors

Sometimes landowners insist that they deserve a variance because they have already incurred substantial costs or argue they will not receive expected revenue without the variance. State statute specifically notes that economic considerations alone cannot create practical difficulties. Rather, practical difficulties exist only when the three statutory factors are met.

 

Traditional Neighborhood Design Standards

The Overlay district requires the application Traditional Neighborhood design standardsuniformly for any and all new construction projects on Grand Avenue between Ayd Mill and Oakland Avenue; and the proposed rezoning to a Traditional Neighborhood district, if granted, would only further cement their applicability. These are specific rules that apply to project “unless the applicant can demonstrate that there are circumstances unique to the property that make compliance impractical or unreasonable.” (66.343) The developer proposes to ignore and dismiss several design guidelines, even though there is no unique circumstance to this property that would make compliance impractical or reasonable.  The property has only the most practical and reasonable of circumstances:  a large parcel in a developed part of the city with easy access to roads, alleys, water and sewer.  

 

Re-Zoning

Re-zoning is changing the primary land use district of a property. This process is most commonly used to permit a different land use–for example to change a residential land use to commercial. In this case, a  mixed use project of residential housing over retail is an allowed land use in B2.  The sole reason to rezone is the developer’s desire to exceed the allowed limits on building bulk and height. The developer wants to exceed the height limit of B2 (30 feet) and of the EGAD (36 feet) with a proposed height of 60 feet. At the same time, the developer also wants to increase the bulk of the building — its total footprint and height together. Building bulk is calculated by the Floor Area Ratio (F.A.R.), and there is a 150% increase between B2 (2.0) and T3 (3.0). 

So question stands, is the financial profit of a developer a reason to change the zoning code? Rather than seeking a variance, they are seeking to rezone in an attempt to avoid the strict criteria for a variance?

 

Conditional Use Permit

On top of rezoning, the developer has to ask for an exception to exceed the height limits of the proposed district, even though the sole reason to rezone had been the developer’s desire to exceed the allowed limits on building bulk and height. Warning: this is going to get a little technical. The developer wants to exceed the height limit of B2 (30 feet) and of the EGAD (36 feet) with a proposed height of 60 feet. This maximum height is located as close as 3 feet from setbacks lines. The proposed new zoning (T3) only allows a 55 height limit “by right.” It can allow, via a little footnote called (g), for conditional height limit, via the CUP process. A conditional use permit (61.500), often referred to as a CUP,  is a path change specific zoning rules, subject to stated required conditions.  These conditions are required standards that must be met. But, in this case, once again,  these required standards and conditions aren’t being met. Little (g) requires “step backs” for additional height, which are not being met. There are also general conditions that all CUPs must meet. One of general, required conditions is that “any applicable subarea plan” must be followed–the East Grand Avenue Overlay District is essentially a subarea plan. It explicitly states that additional height is not allowed, not even with stepbacks. To not follow the subarea plan would be a modification (61.502). Any modification of these required conditions must meet the undue hardship standard, and must “not impair reasonable enjoyment of adjacent property.” 

 Why so many rules? These are created because the “conditional use” is something that is recognized to have adverse affects on neighboring properties, and the required conditions are meant to mitigate those adverse affects. 

The extreme height of this property is 150% the height of the re

 

Learn more about CUPs from the League of Minnesota Cities

A conditional use is a land use designated in a zoning ordinance that is specifically allowed in a zoning district so long as certain standards are met. The zoning ordinance typically detail both general standards that apply to all conditional uses, as well as specific standards that apply to a particular conditional use in a given zoning district.

A use is typically designated in a zoning ordinance as conditional because of hazards inherent in the use itself or because of special problems that its proposed location may present.

The planning commission, after public hearing, may modify any or all special conditions, when strict application of such special conditions would unreasonably limit or prevent otherwise lawful use of a piece of property or an existing structure and would result in exceptional undue hardship to the owner of such property or structure; provided, that such modification will not impair the intent and purpose of such special condition and is consistent with health, morals and general welfare of the community and is consistent with reasonable enjoyment of adjacent property.

 

Re-Zoning Out of a Small Area Plan

Perhaps the largest leap of this application is developer’s assertion that they can “rezone out” of the overlay district. The task is to redraw the boundaries of the small area plan, in order to create a hole for this project. It’s like gerrymandering for zoning, except in zoning that is called “spot zoning” and it’s illegal. The League of Minnesota Cities describes spot zoning as “an island”; to create an island of non-conformance within the contiguously designated small area of the Grand Avenue Overlay district sounds like the definition of spot zoning.

 

 

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