HomeMy WebLinkAbout95-131 - ADMIN Resolution - City Council - 1995/10/02EXHIBIT A
RESOLUTION NO. 95- 13 t
WHEREAS, the City of St. Louis Park (the "City") in 1992 adopted after due
deliberations a zoning ordinance including Section 14:7-4 related to the amortization of
nonconforming uses (the "Amortization Ordinance"); and
WHEREAS, the Amortization Ordinance requires all owners of property that contains a
nonconforming use to register that use with the City within one year from the effective date of
the Amortization Ordinance; and
WHEREAS, Apple Valley Red -E -Mix ("AVR") has filed a registration application with
the City Zoning Administrator in accordance with Section 14:7-4(B)(2); and
WHEREAS, the Zoning Administrator has met with representatives of AVR to review the
registration application and the Zoning Administrator and other City officials have continued to
communicate with AVR representatives concerning the completeness of the registration
application; and
WHEREAS, the Zoning Administrator determined on or about June 29, 1995 that AVR's
registration application was substantially complete; and
WHEREAS, the City staff has analyzed AVR's registration application and supplemental
data submitted by AVR, and has prepared Staff Reports and recommendation based upon AVR' s
registration application and supplemental data and other relevant facts and evidence available to
the staff regarding a proposed amortization period for AVR's nonconforming use; and
WHEREAS, the City Council and the Planning Commission held a joint public hearing
on July 11, 1995 for the purpose of commencing amortization proceedings against the AVR
facility located at 3270 C3oriam Avenue South in St. Louis Park; and
WHEREAS, the City staff presented its Staff Report and recommendation to the City
Council and the Planning Commission at the July 11, 1995 Joint public hearing; and
WHEREAS, AVR was invited to and did present testimony and other evidence to the City
Council and Planning Commission at the July 11, 1995 joint public hearing and did present such
testimony and evidence, including a letter setting forth legal arguments related to the amortization
process and the proposed amortization period for AVR's nonconforming use; and
WHEREAS, members of the public also were invited to and did testify and present
evidence at the July 11, 1995 public hearing concerning the operation of the AVR facility and
the proposed amortization of that facility; and
WHEREAS, the City Council on July 11, 1995 directed the Planning Commission to
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further consider the proposed amortization of AVR, and to make a recommendation to the City
Council regarding the proposed amortization; and
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WHEREAS, the Planning Commission considered the proposed amortization of the AVR
facility at its regular meeting on August 2, 1995, including reviewing a Staff Report and
supplemental data and documents submitted by City staff as a result of issues raised at the July
11, 1995 joint public hearing; all testimony and submissions related to the proposed amortization
that had been submitted by AVR to the City by that date and supplemental testimony and data
presented to the Planning Commission at its meeting; testimony of neighbors to the AVR facility
presented at the July 11, 1995 joint public hearing; and additional written comments submitted
by members of the public since the public hearing related to the proposed amortization of the
AVR facility; and
WHEREAS, the Planning Commission recommended to the City Council, based upon the
entire record before it, that a reasonable amortization period of two years should be established
for the AVR facility; and
WHEREAS, the City Council at a special meeting on September 13, 1995 considered the
proposed amortization of the AVR facility based upon all of the facts, submissions, and testimony
in the record, including, but not limited to, the Staff Reports and supplemental data submitted
by City staff; information submitted at the July 11, 1995 joint public hearing and the August 2,
1995 meeting of the Planning Commission, all testimony and data submitted by AVR, including
testimony and data presented at the July 11, 1995 public hearing, the August 2, 1995 Planning
Commission meeting, the September 13, 1995 City Council meeting, and all other AVR
submissions; and all testimony and information submitted by members of the public at the July
11, 1995 joint public hearing and at all other times;
NOW, THEREFORE, THE CITY COUNCIL HEREBY FINDS THAT:
1. The purpose of the City's ordinance providing for the amortization of
nonconforming uses, as stated in St. Louis Park Code of Ordinances Section 14:7-4A, is as
follows:
St. Louis Park is a fully developed City and as such, there are certain uses which
are no longer compatible with the nature of the community. In general, these uses
tend to create noise, traffic, and dust problems and have a negative impact on
property values and aesthetics due to the fact that they are incompatible with the
surrounding area. It is the intent of the City to gradually eliminate those uses
which because of their location or manner of operation, create a negative impact
on the health and welfare of the neighborhood in which they exist. To the extent
practical and consistent with good land use planning and zoning principles, the
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City has made every effort to accommodate permitting uses in districts where they
are less likely to cause negative impact.
In reaching its conclusion to provide for the gradual elimination of all
nonconforming uses not permitted in any zoning district in the City, the City
Council has weighed the Interests of the individual property owners who will be
required to gradually terminate their nonconforming use and the health, welfare
and safety of the community generally and the surrounding neighborhoods
specifically.
2. With respect specifically to AVR, the City Council made ten specific findings in
connection with the adoption of the City's comprehensive zoning ordinance in 1992 as to the
operation of the AVR facility and application of the Amortization Ordinance to that facility.
3. The Minnesota Supreme Court has directed, in the /iaegele Outdoor Advertising
Co. of Minn. v. Village of Minnetonka decision, that any amortization period must be
"reasonable." Courts in other jurisdictions have identified at least seven (7) factors by which the
reasonableness of an amortization period may be evaluated. The St. Louis Park Code of
Ordinances incorporates those specific factors in its Amortization Ordinance. The City's
Amortization Ordinance specifies that the following factors must be considered in determining
the length of an amortization period:
(1) Information relating to the structure located on the
PTPerty;
(2) Nature of the use;
(3) Location of the property in relation to the
surrounding uses;
(4) Description of the character of and uses in the
surrounding neighborhood;
(5) Cost of the property and improvements to the
propetty;
(6) Benefit to the public by requiring the termination of
the nonconforming use;
(7) Burden on the property owner by requiring the
termination of the nonconforming use;
(8) The length of time the use has been in existence;
and
(9) The length of time the use has been nonconforming.
4. The Minnesota Supreme Court has approved, in the Naegele decision, the use of
amortization as a procedure for the elimination of nonconforming use, and the City has exercised
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its discretion consistent with a reasonable application of the law and after due consideration of
the evidence relating to the factors set forth in paragraph 3.
Factor (1): Information relating to the structure located on the property.
5. There are two structures located on the AVR property associated with the ready -
mix operation, including an industrial shed (garage and shop) and the batching plant. The
construction type of both structures is industrial steel and masonry, and both structures have steel
exterior walls or which rust is evident. The industrial shed measures 133.55' x 60', with 8,013
square feet of floor arca. (The floor area of the batching plant is in dispute. City Assessor's
records show that the batching �plan�o 1,417 square feet of
feetf floor area.area, while This dispute does'notappear
praisal
states that the batching plantq
to be material for purposes of the amortization period established herein.)
6. AVR proposed in 1986 to completely replace the existing two structures with what
it characterized as a "state-of-the-art" ready -mix plant. The City denied AVR's request as a
violation of its City Code, because the City Code prohibited the expansion or intensification of
a nonconforming use.
Factor (2): Nature of the use.
7. The AVR facility manufactures ready -mix concrete by mixing aggregate that is
trucked from the Apple Valley gravel pit and loaded into the cement mixer by conveyor belt,
where it is mixed with cement, fly ash, sand water before being loaded into cement mixing trucks
for transportation to construction sites.
8. The batching plant includes a gravity flow tower that is approximately 60 - 70'
tall and is highly visible from the surrounding residential neighborhood. The buildings do not
meet the City's current architectural standards for any Zoning District, even the industrial zoning
districts, due to ,� continue two decline, steel eriors on resulting aea potential diminution of thenvalueues to rust,
of the,
the aesthetics will
surrounding property.
9. The ready -mix use cannot be conducted within an entirely enclosed building and
high volumes of heavy truck traffic delivering aggregate from the gravel pit and transporting
ready -mix to construction sites are a necessary part of the use. The noise, dust, traffic, and other
features incident to the ready -mix operation are thus largely unavoidable while the facility is
operating. Those features conflict and are incompatible with residential uses. including the
residential properties immediately adjacent to and across from the facility.
10. Testimony from residents indicated substantial noise generated by the facility
which may result from cleaning of trucks or aggregate being unloaded as well as Saturday noise.
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AVR acknowledged that processing begins as early as 6:00 a.m. and submitted information at
the request of City Staff that Saturday operations at the AVR St. Louis Park Facility have
increased in the last five years, with the Facility operating 25% of all Saturdays in 1994 and 50%
of the Saturdays during the months of June and July when residents most want to enjoy their
patios or have windows open.
Factor (3): Location of the property in relation to surrounding uses.
11. The neighborhood that includes AVR has changed substantially since the ready -
mix plant was constructed in 1954. At that tiine, the area was zoned for industrial uses and was
much more industrial in character than it is today. Redevelopment in the area since 1954, and
even since AVR's acquisition in 1974, has been substantial and consistent with the City's
Comprehensive Plan and zoning policy direction.
12. The facility became a nonconforming use on or about February 5, 1960, the
effective date of a new zoning ordinance. Under the 1960 ordinance, ready -mix and concrete
block plants were permitted in the I-1 Industrial Use Zoning District only (1) by special permit
and (2) only if the plant was located more than 400 feet from any residential use. The facility
was located within 400 feet of a residential use to the east and, thus, AVR did not meet the
criteria for a special use permit.
13. At present, the area that includes AVR is in the process of redeveloping, and the
ready -mix facility is now surrounded by Residential and Commercial Use Districts that contain
the Park Tavern Restaurant, the "3300 on the Park" condominium complex. the Oak Park Village
townhomes. and a single-family neighborhood that Includes a small City park and a public
library. In addition, redevelopment plans for the areas immediately surrounding AVR emphasize
construction of additional multiple -family residential housing.
14. The ready -mix use is fundamentally incompatible with existing and planned ,
adjacent uses and with the City's zoning and Oak Hill Neighborhood Comprehensive Plan.
Factor (4): Description of the character of and uses in the surrounding neighborhood.
15. AVR is surrounded by a stable single-family residential neighborhood to the east;
three businesses of primarily office or quasi -industrial character to the north, none of which
apparently involve industrial activity similar to AVR's use and in any event do not involve
outdoor processing activities; a vacant building that formerly was used by a security company,
immediately to the south; a multiple -family residential neighborhood to the west across Louisiana
Avenue; and, to the southwest, a restaurant that serves both the single-family residential
neighborhood to the east of AVR as well as the multiple -family residential neighborhood to the
west.
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16. Other existing, small commercial uses in the vicinity do not present the intense
conflicts with the neighborhood and surrounding residential development and redevelopment that
the AVR ready -mix facility docs.
Factor (5): Cost of the property and improvements to the property.
17. AVR purchased the ready -mix facility from Suburban Ready -Mix in 1974 for
$260,000.00 and AVR was or should have been aware of its nonconforming use status at the time
it purchased the facility. Suburban Ready -Mix had operated the facility for almost twenty (20)
years, and AVR has operated it for the last twenty (20) years. AVR acknowledges that the
original investment is fully depreciated.
18. Based upon information reported by AVR, subsequent improvements to the
property totaled $123,168.00. AVR's remaining non -depreciated investment in the ready -mix
facility is approximately $40,000.00 as of January 1, 1995, while its annual income allocable to
this Facility is almost $200,000.00.
Factor (6): Benefit to the public by requiring termination of the nonconforming use.
19. Elimination of AVR's heavy Industrial structures, including the highly -visible 60 -
to 70 -foot batching plant tower. would improve the quality of life of nearby residents and
business people who view the facility daily from their properties. Elimination of those structures,
which do not conform to the City's architectural standards also would improve the general
appearance and image of the area. Aesthetics contribute to quality of life.
20. Numerous complaints have been received over the years regarding traffic, noise,
and dust generated by AVR Elimination of the use would eliminate such complaints, and would
thereby save time and effort by City employees and costs for City taxpayers.
21. Redevelopment activities may accelerate after the termination of AVR's
nonconforming use, and may make the property available for different uses consistent with the
City's Comprehensive Plan and the zoning ordinance.
22. Elimination of the ready -mix facility and the associated redevelopment of the AVR
property could feasibly Increase property values in the immediate vicinity of AVR by providing
more aesthetic views and decreased traffic, noise. and dust for neighboring single-family and
multiple -family residential developments_ increased property values would translate into
increased real estate tax generation, providing a benefit for the entire City.
23. Elimination of the substantial heavy truck traffic to and from AVR, which often
occurs during peak automobile use times, would improve the quality of life for residents, users
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of the nearby City park, and customers of the neighboring commercial areas, by eliminating
traffic, noise, and dust that are incident to the operation of heavy industrial trucks.
Factor (7): Burden on the property owner by requiring the termination
of a nonconforming use.
24. AVR was or reasonably should have been aware of the nonconforming status of
the ready -mix facility when it purchased the facility in 1974. Over the ensuing 21 years. AVR
has fully depreciated and recaptured its initial investment.
25. AVR will have to terminate its ready -mix operation in St. Louis Park. As a result,
AVR will lose the advantages of the monopolistic market position that the nonconforming facility
has enjoyed throughout AVR's ownership of it.
26. AVR has asserted a number of difficulties it expects to encounter upon termination
of its nonconforming use, but has not provided factual support for its contentions. Many of the
difficulties it suggests will occur from the termination would be a direct result of the loss of the
favorable market position it presently enjoys due to its nonconforming status. AVR's suggested
"burdens" fail to adequately address the existence and market position of its other facilities in and
around the seven -county metropolitan arca.
27. The definition of "market area" and the purported results of AVR's relocation
search conflict with data presented by City Staff concerning the relevant market area and the
availability of possible sites for relocation In metropolitan area cities. Further, AVR has failed
to include acquisition of an existing ready -mix facility among its replacement options. AVR has
not demonstrated, to the satisfaction of the City Council, that it made reasonable efforts to
relocate or to identify all relocation options, in spite of its awareness that competitors were taking
advantage of relocation and upgrading opportunities during the 1980s. The amortization period
also allows AVR an additional two (2) years to relocate and/or adjust its operations.
28. AVR has profited from the nonconforming status of its St. Louis Park facility.
AVR has failed to relocate to a conforming site on its own initiative despite having full
opportunity to do so for more than twenty (20) years. To the extent that AVR has benefited from
the monopolistic advantage it has enjoyed because of its nonconforming status since 1974, rather
than relocate its facility, any burden that may be imposed on AVR by the two-year amortization
period is in part a self-imposed burden.
29. While the City does not necessarily agree with AVR's apparent view that
relocation is impossible and has been impossible for some time. to the extent that the City were
to adopt such a view, it would tend to reinforce that AVR's nonconforming use in St. Louis Park
has for some time enjoyed an advantageous market position which has substantially benefitted
AVR, allowing it to fully recapture its investment in the facility.
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30. Based upon a reasonable 15 -mile service radius for each of its facilities, continued
operation of the St. Louis Park AVR Facility is not critical to the overall AVR ready -mix
business, because the market area of the St. Louis Park AVR facility is almost entirely duplicated
by four of AVR's other facilities.
31. AVR has not proven that it cannot relocate or that it has made reasonable efforts
to do so. Information submitted by AVR indicates that its search considered only potential sites
that were significantly larger in size than the present site, and that AVR did not consider
acquiring an existing ready -mix plant among its relocation options.
32. Even though AVR will have to discontinue its nonconforming use in St. Louis
Park at the end of the amortization period, AVR will still own the property on which the ready -
mix plant is constructed. At the end of the amortization period, AVR will be free to use the
property for a use that is permitted under the current zoning designation.
Factor (8): The Length of Time the Use Has Been In Existence
33. Suburban Ready -Mix established the ready -mix plant on the current site in 1954
and operated it until AVR took over the operation in 1973. AVR purchased the ready -mix plant
in February, 1974, and has operated a ready -mix facility on the property since that time. The
ready -mix use thus has been in existence since 1954, i.e., for 41 years.
Factor (9): The length of time the use has been nonconforming.
34. The ready -mix plant became a pre-existing nonconforming use on or about
February 5, 1960, the effective date of a new zoning ordinance adopted by the City on December
28, 1959. Under that ordinance, the property on which the ready -mix plant was constructed was
included in an I-1 zoning district. Ready -mix plants were permitted in the I-1 district only (1)
by special permit, and (2) if the plant was not within 400 feet of a residential use. The facility
was within 400 feet of a neighboring residential property so, unable to obtain a special permit,
the ready -mix facility became a pre-existing nonconforming use on or about February 5, 1960,
and has remained so for the intervening 35 years.
35. The nonconforming status of the ready -mix plant was well-established when AVR
purchased it from Suburban Ready -Mix in 1974, and it is presumed that both parties to the sale
and purchase accounted for the property's nonconforming status in negotiating the purchase price.
Other Factors and Considerations
36. To assist it in determining the length of a reasonable amortization period for
AVR's St. Louis Park facility, including evaluating the useful life of the facility, the City retained
the accounting firm of Arthur Andersen & Company ("Arthur Andersen"), and the appraising
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firm of Patchin & Associates, Inc. ("Patchin"). The City Council finds that Arthur Andersen
qualified to advise it on matters related to accounting and to provide an expert opinion on which
the City may reasonably rely. The City Council further finds that Patchin is qualified to advise
it on property valuation matters and to provide an expert opinion on which the City may
reasonably rely.
37. Arthur Andersen has advised the City that the useful life of AVR's St. Louis Park
facility has expired. Specifically, Arthur Anderson found that, under Generally Accepted
Accounting Practices ("GAAP"), the facility's useful life expired no later than 1994.
Additionally, Arthur Andersen found that, under management cost recovery methods, AVR has
fully recovered its investment in the St. Louis Park facility and has earned a return on its
investment of approximately 560 percent. Arthur Andersen further opined that the use of GAAP
and management cost recovery methods could provide the City with evidence of a reasonable
amortization period.
38. Patchin has advised the City that the appraisal submitted by AVR Is Inadequate
for use in the amortization process and has urged the City not to use it as a basis for determining
the reasonable amortization period to be applied to the St. Louis Park facility.
39. Based upon the expert opinions of Arthur Andersen and Patchin, the age of the
St. Louis Park Facility, AVR's proposal to the City nine years ago to replace the existing St.
Louis Park structure, AVR's testimony regarding necessary size of potential relocation sites, and
the voluntary relocation and/or new construction actions of other ready -mix businesses in the
Twin Cities area, AVR's St. Louis Park Facility has passed its useful life and AVR has had a
reasonable opportunity to recover its economic investment.
40. Consideration by the City Council of, and any findings made by the City Council
related to the generation by AVR of noise and dust or other typos of pollution, to the extent the
City Council considered or made findings related to such generation, individually and collectively
constitute additional justification and grounds upon which the City Council determined the
reasonable amortization period applicable to AVR. Even in the absence of such consideration
and findings, the amortization period determined herein to be applicable to AVR is reasonable
based on the other evidence in the record.
41. No single factor considered by the City Council is necessarily determinative of the
length or reasonableness of the amortization period to be applied to AVR. Each of the individual
factors evaluated by the City Council, however. was considered independent of the other factors
and may, in conjunction with any additional factor or factors considered, provide sufficient and
rational basis for the determination of the appropriate and reasonable amortization period.
42. The City Council believes that its determination of a reasonable amortization
period for AVR, and adoption of that amortization period through amendment of the City's
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zoning ordinance in accordance with Ordinance Code Section 14:7-4(D)(4), constitutes a
legislative decision as the Minnesota Supreme Court has defined and described that concept in
its 1981 decision in Holm v. City of Coon Raoidl. AVR has contended that the determination
and adoption of a reasonable amortization is instead a quasi-judicial decision. Regardless of
whether the City Cotmcil's determination and adoption of the reasonable amortization period
applicable to AVR is a legislative or a quasi-judicial decision, or some hybrid of the two, the
findings set forth herein to support the amortization period applied to AVR through an
amendment to the City's zoning ordinance is hereby determined by the City Council to be
reasonable based on the record before it.
Adopted by the City Council • 20/9157
Attest:
or
Iv l
larlger-1
aty Clik
Approved as to form and execution: Approved for Administration:
(,(Li4a. /fa. ?d -Le_.
City Attorney Clty Manager
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