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Memorializing City Council action taken on December 15, 2010 to adopt the decision and reasoning set forth in Planning Commission Resolution No. 10-76 and deny the appeal by Wilkerson & Hegna, PLLP - Kyle Hegna, Esq. on behalf of the property owner 2446 University Avenue, LLC.
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WHEREAS, 2446 University Avenue LLC, in PED Zoning File No. 10-797-728, duly filed an appeal to the Planning Commission, pursuant to Leg. Code § 61.701(c), from a determination by the Zoning Administrator that 10 parking spaces on the east side of the building at 2446 University Avenue cannot be used or counted for zoning purposes because the access to the said parking spaces is across an adjacent property; and
WHEREAS, the Planning Commissions Zoning Committee, pursuant to Leg. Code § 61.303, duly conducted a public hearing on September 16, 2010 where all persons present were given an opportunity to be heard and, at the conclusion of testimony, the Committee left the public hearing open and moved to lay the matter over for the purpose of allowing the City Attorney an opportunity to render an opinion on the matter; and
WHEREAS, on October 14, 2010, the Zoning Committee reopened the public hearing on the matter at which 2446 University Avenue LLC offered no additional information and having consulted with the City Attorney on the matter, the Committee moved the recommendation to deny the appeal and to recommend the same to the Planning Commission; and
WHEREAS, on October 22, 2007, the Planning Commission, based upon the record and all the evidence presented to the Zoning Committee at the said public hearings, as substantially reflected in the minutes, moved to deny the appeal of 2446 University Avenue LLC based upon the following findings of fact as set forth below from Planning Commission Resolution No. 10-76, dated October 22, 2010, which is also adopted and incorporated herein by reference:
1. The building at 2446 University has a mix of commercial uses: retail, office and a small fast food restaurant. Parking for the building is provided in several locations: there is a large parking lot across University Avenue, a small parking lot in front of the building and other small parking areas at the back and side of the building.
2. There are 10 parking spaces along the east side of the building at 2446 University. However, the only access to these spaces is across the neighboring property to the east (2420 University). There is an access easement in favor of 22446 University over the adjacent property at 2420 University. But his easement is not contiguous with the 10 parking spaces on the east side of the building at 2446 University and cars cannot get to the 10 parking spaces without driving outside of the easement area.
3. In October 2004 City zoning staff approved a site plan showing parking spaces at 2446 University. The site plan shows new paving south of the building to create16 parking spaces and striping for the area east of the building to provide 10 parking spaces. The site plan does not show any property lines but shows an area labeled Approx. Alley Location (Irregular) that appears to provide a way for cars to get to the 10 parking spaces on the east of the building. Staff did not have a survey of the property and was not aware of the location of the access easement when the site plan was approved.
4. Starting in 2008, the owner of the property at 2420 University raised questions with zoning staff about the status of the parking spaces on the east side of the building at 2446 University, claiming that there is no legal access to these spaces. The owner of 2420 University submitted a survey. It shows that there is not an alley near the 10 parking spaces in question and shows that an access easement in favor of 2446 University Avenue is not contiguous with the parking spaces: there is a strip approximately 20 wide between the easement and the property line shared by 2420 and 2446 University Avenue.
5. Aerial photos show the area east of the building was not used as a parking lot prior to 2006:
2009 - Area is paved and striped for parking. 8 cars are parked.
2008 - Area is paved and striped for parking. 8 cars are parked.
2006 - Area is not striped. No cars are parked in the area.
2003 - Area is not striped. No cars are parked in the area. Some cars are parked to the south.
2001 - Area is not striped. No cars are parked in the area.
1997 - Photo is not clear but there is no evidence that cars are parked in the area.
1985 - Photo is not clear but there is no evidence that cars are parked in the area.
6. In August 2010 zoning staff wrote a letter to the owner of 2446 University Avenue. The letter makes the following determinations:
Staffs approval of the 10 spaces shown on the 2004 site plan was based on a plan that incorrectly shows access to the parking spaces on the east side of the building via an Alley that did not exist.
Because the plan was inaccurate and there is no legal access to the parking spaces, the City rescinds the 2004 approval of the parking spaces.
The use of the parking spaces must cease. In addition, the City would allow the owner of 2420 University to take actions that would block access to the parking spaces, including building a fence along the shared property line.
7. Staff later determined that the building at 2446 University has enough off-street parking without the 10 parking spaces along the east side of the building: 126 spaces are provided and 114 spaces are required.
8. On August 23, 2010, 2446 University Ave LLC, the owner of 2446 University Avenue, filed an appeal of staffs determination that the parking spaces on the east side of the building were not legal and could not be used. The appeal contends that:
The parking on the 2446 University Avenue property has been used this way since the building was constructed 50 years ago. The City previous[ly] provided its approval of the parking for 2446 University Avenue. If there is an issue with the use of the parking spaces, it is a private dispute between the 2446 University Avenue property owner and the neighboring property owner and does not and should not involve the City.
9. In response to the issues raised in the appeal:
Aerial photos do not show cars parked in the area east of the building prior to 2006.
The site plan approved by the City in 2004 was primarily for paving an area south of the building so it could be used for parking. The City accepted the parking spaces shown on the east side of the building based on the assumption that access was provided to these spaces over an area incorrectly identified on the plan as Approx. Alley Location (Irregular)
The City became involved in the matter when the owner of 2420 University Avenue asked City staff about the status of the parking spaces and what the Citys position would be if he erected a fence along his property line or took steps to block access across his property to the spaces.
WHEREAS, on or about October 29, 2010, 2446 University Avenue LLC, pursuant to Leg. Code § 61.702(a), duly filed an appeal (PED Zoning File No. 10-917471) from the determination made by the Planning Commission and requested a hearing before the City Council for the purpose of considering the actions taken by the Commission; and
WHEREAS, the matter was duly set on for a public hearing before the City Council on November 17, 2010 and, although the Appellant did not appear for the November 17, 2010 hearing, this matter was set back on for a public hearing to December 15, 2010; and
WHEREAS, on December 15, 2010, pursuant to Leg. Code § 61.702(b) and upon notice to affected parties, a public hearing on the said appeal was duly conducted where all interested parties were given an opportunity to be heard; and
WHEREAS, at the close of the December 15, 2010 hearing, the Council, having heard the statements made and having considered the application, the report of staff, the record, minutes and recommendation of the Zoning Committee and the Planning Commission's resolution, does hereby
RESOLVE, That the Council of the City of Saint Paul, pursuant to Leg. Code § 61.704, hereby affirms the decision of the Planning Commission in this matter there being no showing on the part of the Appellant that the Commission had erred in its facts, findings, or decision as set forth in Commission Resolution No. 10-76; and, be it
FURTHER RESOLVED, That the appeal by Wilkerson & Hegna, PLLP - Kyle Hegna, Esq., on behalf of the property owner 2446 University Avenue LLC is hereby denied; and, be it
FURTHER RESOLVED, that the Council hereby adopts as its own in support of this decision the reasoning set forth in Planning Commission Resolution No. 10-76 and incorporates that resolution herein by reference; and, be it
FINALLY RESOLVED, That the City Clerk shall immediately mail a copy of this resolution to Wilkerson & Hegna, PLLP - Kyle Hegna, Esq., 2446 University Avenue LLC, the Zoning Administrator and the Planning Commission.