Land development code issues

LIve-blogging the Planning Commission tonight; it’s a special meeting for the sole purpose of discussing an issue arising from the “new” land development code adopted in 2011.

7:37 pm.  Richard Schulte is describing the process for the meeting which is focused on interpreting section 3.5.3 of the land development code.  First, some background, then trying to frame “What have we been asked to do here?” followed by a staff report, a report by the city attorney, the landowner and builder making tonight’s request, public comments, and commission discussion.  “After a suitable amount of discussion,” Chair Schulte will ask for a motion for action on the interpretation of the code.  Some action will be taken and then a discussion of what further action might be needed.

7:42 pm.  Some background.  First, the code section in question:

Section 3.5.3 The following forms of development shall be exempt from the standards of this section:

(A) Accessory buildings;

(B) Development subject to an approved master plan, development agreement, variance, or planned unit development protected by a PD-O district;

(C) Existing nonresidential or mixed-use development lawfully established prior to the effective date of this LDC;

(D) A change of use, with no structural changes, that is permitted in the base zoning district.

7:46 pm.  Section (B) is the issue – does the existence of a development agreement create the exemption and framing the question as “Does the Planning Commission find that the section should NOT be applied and thus the garage massing regulations should be applied to the project in question?”

7:47 pm.  When the new land development code was adopted there were a handful of subdivisions around the city which had been platted under the former code with lot sizes, building placement, and design regulations which are more suburban.  In particular, the regulations for garages had no restriction on where the garage should be placed relative to the front facade of the house or how much of the facade the garage could occupy.  The new code seeks to make streets more inviting for pedestrians by bringing homes closer to the street, recessing garages and limiting the amount of the facade devoted to the garage door.  Earlier building code applications for homes to be built by Johnson-Reiland homes on lots platted under the old code were rejected because the garage occupied too much of the front facade.  Johnson-Reiland changed the plans and the building permit was issues.  The current case concerns a lot at the southern edge of Northfield with a customer working with builder Steve Schmidt.  Again, the problem is the garage.  Rather than change the plans, the landowner/home building customer has asked for an interpretation of the code which allows.

Even more background – many meetings were held with builders and the public and questions about what happens to the previously platted lots.  At times, the discussions seemed to suggest that previously platted lots would be allowed to continue to be developed under the rules under the rules when platted.  However, the code as adopted exempts lots platted under the old code are exempt from meeting the lot requirements, but the code is silent on regulations applying to any structure built on the lot.

In the section above, the question is whether the existence of a development agreement is sufficient to exempt previously platted lots and the structures to be built upon them are exempt from the regulations.

7:58 pm  Robert Scott, attorney with Flaherty and Hood, one of the city attorneys.  “I think what I have come to appreciate” in reviewing the code is a clear intent to apply new rules to all lots except those projects with building plans approved before the regulations were approved. Having spent a great deal of time with this code, I’d say that there is a tension between infill development being compatible with (and similar to) surrounding development and wanting to change the development pattern of the city going forward.

8:08 pm This section is inconsistent with the overall intent, says Mr. Scott, and he advocates for a narrow interpretation of the section which would not exempt the current project from the code.  Questions from the Commission press him on this interpretation and he reiterates his belief, but also repeats that it is ambiguous.

8:14 pm  We pause our reporting for a bit of editorializing…if the city had really done things right, knowing that there were about 40 lots yet to be built in existing subdivisions, would have been clear about the new code’s effect on the platted lots – dealing with street layout, infrastructure placement, lot size, and other physical development issues – and distinguished this from the building permit issues like setbacks, garage placement, accessory buildings, etc.  Then, the city would have communicated what had been decided about these two distinct features of development to the local building community and other places like building permit applications, city web site, etc.   Unfortunately, verbal meetings and understandings occurring when the code was still under development created the perception that existing subdivisions could be built under the previous code and this perception has been relied upon by builders and their customers.  As a result, money has been invested relying on that perception and much more would have to be spent to make the Schmidt plans comply with the new code.

In real life economic terms, issuing the building permit is a wise move.  Obviously, it would be good for the builder and his customer who have already spent money.  But in economic development terms, creating obstacles to new home construction (which has been almost non-existent in the current economy) is not advisable – a new home increases the tax base incrementally, brings in development fees, gives the builder business which includes work for local construction workers, etc.

In land use terms, allowing the exemption would not change much in terms of the character of the built environment.  Allowing a prominent 3-car garage in a neighborhood with many similar garages would simply continue the development pattern in that area and prohibiting the garage massing would not change the overall suburban character of the neighborhood.

In legal terms, the Commission needs to find an acceptable justification for its interpretation.

8:29 pm. Steve Schmidt and his customer go to the microphone and asks for a quick resolution of the problem.  Using variations of my economic development description, he asks for a two stage resolution – first, let projects in process go forward.  Then, take the time to review the code and find the best long-term solution.  The impact on the customer is also being described – uncertainty with mortgage rates, bank fees incurred, moving dates, needing to find new temporary housing.

8:46 pm “An offense against the spirit of what we were trying to do” says Chair Schulte, about allowing the garage massing in this case – that spirit being the pedestrian friendly, non-automobile dominant, smart growth model.

8:51 pm Now the fun part – the roomful of builders has a chance to speak:

Jay Jasnoch: Questions the intent of the code, given his participation in the code development process.  Zeroes in on the planning commission objecting to a particular kind of “product” (builders call homes “products” – this term has always seemed strange to me), that is, the 3 car garage home typical in the existing subdivisions.  And, he notes that the subdivision design – its lot sizes, etc. – anticipated certain types of homes

Mark Gergen, Rosewood Estates: has 6 lots sold but not built.   Also has building permits under review where the garage is an issue.  “As a building community, we can address these issues and make it better” but asks for flexibility in rules rather than specific dimensional limitations.

Matt Reiland, Johnson-Reiland.  Notes that changes are being made in the building community which are in line with the new code like bringing the living space closer to the street rather than the garage the farthest forward.  Some debate with Michele Merxbauer about “primary facade” as part of how much garage one can build relative to the primary facade and much detail about the features of homes and facades.  I’m trying to learn to think like a builder, here.

Paul Smith, asks the Commission not to shut down growth which the city needs.

9:10 pm Public comments closed.

9:11 pm Attorney Scott clarified what standards could not be enforced with broad interpretation of 3.5.3: garages, and lot coverage.  Commission member emphasizes wanting to address the current pending applications as soon as possible.  Another Commissioner suggests interpreting the code as the builders ask and the words of the ordinance state – a development agreement (regardless of the content of the agreement) is sufficient to exempt projects from the code…although she doesn’t think that was the overall intent and that should be addressed as Plan B.  One commissioner suggests builders (and everyone else) should have known no exemption exists since the code is available on the city website and has been in development for 4 or 5 years, but still would like to resolve the issue on the table – suggests a variance.

9:18 pm  An interlude with questions about variances…the law on variances has shifted several times in the last few years and this is recounted by Mr. Scott.

9:21 pm Memories of code drafting process and meetings when the “what happens to platted lots?” discussions were held and understanding “platted lots exempt” but no distinction between lots and structures is remembered.

9:27 pm Chair Schulte states his position as not wanting to punish the current project, so the broad exemption should be created…but the long term fix needs to be worked on later.  “Take care of today’s problem today” says Schulte because there will be more problems later.  Also notes there are 14 amendments currently “under construction” on the code which had been identified as problems.

9:31 pm  What’s fastest?  Option 1- recommend interpreting the exemption broadly and sending it to the Council. Not clear why this goes to the Council – code interpretation is administrative followed by zoning board of appeals.   Option 2 – variance takes 6-8 weeks because of public hearing, notice, etc.  Motion for Option 1 allowing the exemption and issuing building permit and exploring code amendments to clarify later.  Unanimous vote. Stay tuned; Council meets Monday, 2/6.

2 Replies to “Land development code issues”

  1. Understand and could easily argue all sides here… BUT… professional city staff, legal entities/advisors, Council, ALL caution at various times about setting “precedent”.

    So does not setting this ‘precedent’ allow all structures, even if they violate the structural restrictions of the LDC, to move forward until such time as a more specific wording is arrived at… and won’t the same argument about financial harm to both builder and client occur then when some project overlaps the time frame?

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