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HomeMy WebLinkAboutItem 06.g Date: Item No. ORDINANCE AMENDING TITLE 11 (ZONING) OF THE CITY CODE CONCERNING STORM SHELTERS Proposed Action Staff recommends adoption of the following motion: Move to approve an ordinance amending Title 11 of the City Code repealing the City’s storm shelter requirement. Overview At the November 25, 2019 work session, the City Council directed staff to suspend enforcement of the City’s storm shelter requirement and move forward with amending the Zoning Ordinance to repeal the storm shelter requirement to avoid legal action against the City. The Planning Commission held a public hearing on the Zoning Ordinance amendment to repeal the storm shelter requirement at their December 19, 2019 meeting. There was no public comment. Planning Commission members continued to express support for the storm shelter requirement while acknowledging that the City’s “hands are tied” on this issue. They expressed support for legislative action to modify State Statute to allow cities to require storm shelters, which the Planning Commission believes is an important public safety feature. The motion to recommend approval of the Zoning Ordinance amendment passed on a 6-1 vote. Primary Issue to Consider None Supporting Information • Ordinance • December 19, 2019 draft Planning Commission meeting minutes • November 25, 2019 City Council work session minutes • December 11, 2019 planning report • Housing First Minnesota and Minnesota Department of Labor and Industry letters Financial Impact: $ Budgeted: Y☐ N☐ Source: Related Documents: (CIP, ERP, etc.): Envision Lakeville Community Values: Safety Throughout the Community Report Completed by: Daryl Morey, Planning Director January 6, 2020 Zoning Ordinance ORDINANCE NO.________ CITY OF LAKEVILLE DAKOTA COUNTY, MINNESOTA AN ORDINANCE AMENDING CHAPTERS 17, 57, 58, AND 59 OF TITLE 11 OF THE LAKEVILLE CITY CODE CONCERNING STORM SHELTERS THE CITY COUNCIL OF THE CITY OF LAKEVILLE ORDAINS: SECTION 1. Section 11-17-27, Storm Shelter, of the Lakeville City Code is hereby deleted. SECTION 2. Section 11-57-19.E, RST-2 District Two-Family and Detached Townhome Design and Construction Standards, Storm Shelter is hereby deleted, with subsequent sections renumbered accordingly. SECTION 3. Section 11-58-21.E, RM-1 District Design and Construction Standards, Storm Shelter is hereby deleted, with subsequent sections renumbered accordingly. SECTION 4. Section 11-59-21.E, RM-2 District Design and Construction Standards, Storm Shelter is hereby deleted, with subsequent sections renumbered accordingly. SECTION 5. This Ordinance shall be effective immediately upon its passage and publication according to law. PASSED and ADOPTED by the Lakeville City Council this 6th day of January 2020. CITY OF LAKEVILLE BY: _______________________ Douglas P. Anderson, Mayor ATTEST BY: ________________________ Charlene Friedges, City Clerk CITY OF LAKEVILLE PLANNING COMMISSION MEETING MINUTES December 19, 2019 Chair Kaluza called the meeting to order at 6:00 p.m. in the Council Chambers at City Hall. The pledge of allegiance to the flag was given. Members Present: Chair Pat Kaluza, Vice Chair Scott Einck, Karl Drotning, Jenna Majorowicz, Jeff Witte, Jason Swenson, Brooks Lillehei, Ex-officio Mike Lamm Members Absent: None Others Present: Daryl Morey, Planning Director; Penny Brevig, Recording Secretary 3. Approval of the Meeting Minutes The December 5, 2019 Planning Commission meeting minutes were approved as presented. 4. Announcements Mr. Morey indicated that the January 9th Planning Commission meeting will be a work session only. He would like Planning Commission members to let Ms. Brevig know if they would be available to start the meeting at 5:00 or 5:30. 5. Augusta Dog Kennel (withdrawn per applicant) Chair Kaluza stated that Kathryn Newman Bornhofen, the applicant for the Augusta Dog Training and Doggy Daycare at 21460 Heywood Avenue, has withdrawn her application. Chair Kaluza asked for a motion to receive Kathryn Newman’s letter of withdrawal. Motion was made by Swenson, seconded by Majorowicz to receive the letter of withdrawal from Kathryn Newman for the Augusta Dog Kennel CUP. Ayes: Swenson, Majorowicz, Lillehei, Kaluza, Einck, Witte, Drotning Nays: 0 6. City of Lakeville Chair Kaluza opened the public hearing to consider amendments to the chapters of Title 11 (Zoning) of the Lakeville City Code regarding storm shelter requirements. Planning Director Daryl Morey presented the planning report. Mr. Morey stated that staff has received correspondence from the Minnesota Department of Labor and Industry (DLI) and Housing First Minnesota citing Minnesota Statute 326B.121 Subd. 2(c) that states “a municipality must not require building code Planning Commission Meeting Minutes, December 19, 2019 Page 2 provisions regulating components or systems of any structure that are different from any provision of the State Building Code”. The Minnesota Building code does not require storm shelters for slab on grade residential dwellings, but it does require a storm shelter for manufactured home parks. The city Attorney concurs with DLI’s determination. Mr. Morey commented that at their November 25, 2019 work session, the City Council directed staff to suspend enforcement of the storm shelter requirement and set a public hearing to amend the Zoning Ordinance to repeal the storm shelter requirement. Mr. Morey hopes that builders and developers will be transparent and show staff that they are charging less for slab on grade homes without storm shelters and also that they are offering storm shelters as an option to potential buyers of their slab on grade dwellings. Mr. Morey is also hoping that there will soon be a change to state statute that will exempt storm shelters from Statute 326B for the health and safety of our residents, as allowed by State Statute 462.351. Mr. Morey stated that based upon the direction received from the City Council, and because the City’s hands are tied on this issue, staff recommends approval of an amendment to the Zoning Ordinance repealing the storm shelter requirement, as presented. Chair Kaluza opened the hearing to the public for comment. There were no comments from the audience. Motion was made by Swenson, seconded by Lillehei to close the public hearing at 6:07 p.m. Voice vote was taken on the motion. Ayes - unanimous Chair Kaluza asked for comments from the Planning Commission. Discussion points included: • Commissioner Swenson stated that he too hopes the builders prove that housing costs will go down since that is what they are pushing with the repeal of the storm shelter requirement. He is trusting that the home builders are looking out for residents; if not, he will be a lot more suspicious of their intentions in the future. • Commissioner Witte thanked Mr. Morey for the history of this ordinance requirement. The Builder’s Association is making this issue about affordability, not the health and safety of residents. • Commissioner Drotning indicated that the City tried to protect this ordinance, but the City Council made the right decision in their direction to staff. The City Planning Commission Meeting Minutes, December 19, 2019 Page 3 alone cannot challenge Housing First on this issue; the League of Minnesota Cities should represent local governments as a whole. • Chair Kaluza is disappointed with having to repeal the ordinance. He hopes the City Council believes this should be one of the City’s legislative priorities in 2020. • Commissioner Swenson believes that the builders have a right to make a profit, but he was not happy with how they presented their side of the argument. • Commissioner Einck agreed with the other Commissioners. • Commissioner Drotning felt there was no right or wrong on the vote tonight, but he believes that they need to support the City Council’s decision. He indicated that this battle needs to be fought on a different day and be resolved in a different manner. Motion was made by Drotning, seconded by Einck to recommend to City Council approval of an amendment to the chapters of Title 11 (Zoning) of the Lakeville City Code regarding storm shelter requirements, as presented. Ayes: Majorowicz, Lillehei, Einck, Witte, Drotning, Swenson Nays: Kaluza There being no further business, the meeting was adjourned at 6:20 pm. Respectfully submitted, Penny Brevig, Recording Secretary City Council Work Session Minutes, November 25, 2019 Page 2 The Council reviewed the zoning districts and discussed: parking concerns with respect to neighboring transit, potential negative impact to traffic flow/ congestion, requirement of a traffic study, building aesthetics, retail space, additional greenspace between residential/ commercial developments to serve as a buffer, underground parking, and specific language regarding setbacks. The Council also talked extensively about implementing a minimum distance a building can be to the road based on its height. 4. Storm Shelter Discussion The City has required that any slab on grade home include a storm shelter for the protection of the residents. At the September 16 meeting, the City Council approved an amendment to the Zoning Ordinance to allow those storm shelters to be constructed anywhere in the home or within 500 feet of the home. Since making this amendment, staff has received feedback from the State of Minnesota, through a complaint raised byHousing First Minnesota, referencing State Statue which indicates that no municipal building code can deviate from the State Building Code. State Building Code only requires storm shelters for manufactured home parks). Staff is seeking direction on whether to leave the storm shelter language in the ordinance, amend the zoning ordinance to remove the storm shelter requirement, or to seek legislative approval to allow municipalities to require storm shelters for slab on grade homes. Mike Suel, D.R. Horton Felt that based on current State Statute, it is clear the storm shelter requirement should be removed from the City's ordinance. D.R. Horton currently has a slab on grade property they are looking to develop and have not submitted plans as they are hoping for direction on whether they must install a storm shelter. Also stated in other cities they have always provided the choice to the consumer to install a storm shelter, however traditionally consumers have not taken this option which he indicated costs between $16,000 - $20,000 to construct due to materials. City Attorney Andrea McDowell Poehler of Campbell Knutson was on hand to answer questions regarding the process to seek legislative approval and what would happen if the City decided to keep the current language in place. The City Council indicated they felt the best course of action was to move forward with repealing the ordinance to avoid legal action brought against the City, and to suspend enforcement of the ordinance to allow pending projects to move forward. Mayor Anderson indicated that he hopes the building community will continue to offer the construction of storm shelters as a selection, so the consumer is aware of all their options. 5. Tree Ordinance Update Ms. Ball gave an update on the City's Emerald Ash Borer (EAB) management plan and the Shade Tree Epidemic Pest Ordinance. The EAB management plan seeks to minimize adverse City of Lakeville Planning Department Memorandum To: Planning Commission From: Daryl Morey, Planning Director Date: December 11, 2019 Subject: Packet Material for the December 19, 2019 Planning Commission Meeting Agenda Item: Zoning Ordinance Amendment Concerning Storm Shelters Background Since July 17, 2000, when the Zoning Ordinance was updated following approval of the 1998 Comprehensive Plan update, the City has had a requirement that slab on grade residential dwellings provide storm shelter protection for the residents of those dwellings. The Planning Commission has recommended, and City Council has approved, modifications to the specifics of the storm shelter requirement over the past 19 years. The most recent Zoning Ordinance amendment pertaining to storm shelters, approved by the City Council on September 16, 2019, provided more flexibility by allowing the storm shelter to be constructed in any room in the dwelling, including the garage, or in a separate building within 500 feet of the slab on grade dwelling. Since the September 16th City Council meeting, staff has received correspondence from the Minnesota Department of Labor and Industry (DLI) citing Minnesota Statute 326B.121 Subd. 2(c) which reads in part: “A municipality must not by ordinance, or through development agreement, require building code provisions regulating components or systems of any structure that are different from any provision of the State Building Code.” DLI’s position is that any municipal regulation that requires storm shelters in residential dwellings is superseded and preempted by the Minnesota State Building Code, which does not require storm shelters for slab on grade residential dwellings. This determination was initiated by a request from the Builders Association of the Twin Cities/Housing First Minnesota. The City Attorney concurs with DLI’s determination. At their November 25, 2019 work session, the City Council directed staff to suspend enforcement of the storm shelter requirement and set a public hearing to amend the Zoning Ordinance to repeal the storm shelter requirement. It should be pointed out that other 2 Minnesota cities with a storm shelter requirement (i.e. Otsego and Jordan) are also in the process of amending their ordinances to eliminate the storm shelter requirement. Attachments • Draft Ordinance • October 28th and November 12th Housing First Minnesota letters • October 23rd Minnesota Department of Labor and Industry letter Recommendation Based upon the direction received from the City Council, staff recommends approval of an amendment to the Zoning Ordinance repealing the storm shelter requirement. 443 Lafayette Road N., St. Paul, MN 55155 • (651) 284-5005 • www.dli.mn.gov October 23, 2019 Mr. Nicholas Erickson Regulatory Affairs Manager Housing First Minnesota 2960 Centre Pointe Drive Roseville, MN 55133 Dear Mr. Erickson, This letter is in response to your request of September 23, 2019 regarding Minnesota cities that require construction of a storm shelter or safe room when building a new home. You referred to Minnesota Statute 326B.121 that states, A municipality must not by ordinance, or through development agreement, require building code provisions regulating components or systems of any structure that are different from any provision of the State Building Code. Minnesota Statutes §326B.121, subd. 2(c) prohibits a municipality from adopting an ordinance or development agreement requiring building components or systems that differ from any provision of the State Building Code. This statute has been interpreted by our Supreme Court to prohibit not only municipal provisions that “differ from” the State Building Code, but also any municipal requirements that are even “merely additional and complementary” to the State Building Code. See City of Morris v. Sax Investments, Inc, 749 NW2d 1 (Minn. 2008)(emphasis added). See also Builder’s Ass’n of Minnesota v. City of St. Paul, 819 NW2d 172 (Minn. Ct. App. 2012)(State Building Code preempts municipal regulations concerning building systems and components). The Minnesota State Building Code does not require safe rooms or shelters for slab-on-grade residential construction and has specifically deleted IRC Section R323 (Storm Shelters/Safe Rooms) from the International Residential Code by way of Minnesota Amendment. See Minn. Rule 1309.0323 (2012). Based on the foregoing statutes, Rules, and case law, it appears that any municipal regulation which requires storm shelters or safe rooms in residential dwellings is superseded and preempted by the Minnesota State Building Code. Sincerely, Scott D. McLellan Director/State Building Official CC: Jeffrey F. Lebowski, DLI/CCLD General Counsel Equal Opportunity Employer Mayor Doug Anderson 20195 Holyoke Ave. Lakeville, MN 55044 Monday, October 28, 2019 Dear Mayor Anderson, Earlier this year, Housing First Minnesota initiated a conversation with the Minnesota Department of Labor and Industry (DLI) regarding safe room/storm shelter mandates imposed by municipalities. Last month, Housing First Minnesota formally requested an official determination from DLI on the appropriateness of local safe room/storm shelter mandates. We specifically sought clarification for those mandates where local provisions exceed the state building codes in conflict with Minnesota Statutes §326B.121, subd. 2(c). Last week, the DLI responded to our request. Given that the State of Minnesota has purposefully not adopted these requirements, any municipal policy mandating their inclusion in new homes is superseded by the State Building Code, DLI reported. This opinion is clearly supported in case law. Specifically, the State’s Chief Building Official wrote: “The Minnesota State Building Code does not require safe rooms or shelters for slab-on-grade residential construction and has specifically deleted IRC Section R323 (Storm Shelters/Safe Rooms) from the International Residential Code by way of Minnesota Amendment. See Minn. Rule 1309.0323 (2012). Based on the foregoing statutes, Rules, and case law, it appears that any municipal regulation which requires storm shelters or safe rooms in residential dwellings is superseded and preempted by the Minnesota State Building Code.” Housing First Minnesota understands that your city also received a communication from the DLI to this effect. In response to this determination, Housing First Minnesota is requesting the following information: • Confirmation that the City of Lakeville received such communication • The City of Lakeville’s specific plans to cease its enforcement and to remove this mandate in accordance with the state guidance If you have any questions about our correspondence, please contact Nick Erickson, regulatory affairs manager, at nick@HousingFirstMN.org or (651) 697-1954. Respectfully, David Siegel Executive Director Housing First Minnesota CC: City of Lakeville Council Members Justin Miller, City Administrator The Honorable Mayor Doug Anderson City of Lakeville 20195 Holyoke Ave. Lakeville, MN 55044 November 12, 2019 Dear Mayor Anderson, On behalf of Housing First Minnesota and its members, I’m writing regarding the Minnesota Department of Labor and Industry’s (DLI) notification to the City of Lakeville that storm shelter requirements on new construction are invalid. Housing First Minnesota supports policies that lead to the construction of safe, durable and affordable homes and it’s important to note that if the State of Minnesota, home builders, and homebuyers felt that storm shelters were needed, they would be standard on all new homes and required by the law. Housing First Minnesota first requested an opinion from DLI about these requirements after the City of Lakeville amended its storm shelter requirement in September. When the city last took up this issue a few months ago, Housing First Minnesota wrote to the Council and Planning Commission, stating that we believed the ordinance was a violation of the state building code and that it should be removed promptly to positively impact housing affordability. Today, I am renewing Housing First Minnesota’s request that you remove Chapter 11-17-27 in its entirety. This would create consistency across the Twin Cities and state as Lakeville is the only city in Minnesota with a requirement of this nature. Housing First Minnesota and its members have gained clarity from the very few cities with these mandates as to how they will comply with DLI’s directive. The cities of Otsego and Jordan have confirmed that their respective city codes are in the process of being revised and brought into compliance. More importantly, these cities are staying the enforcement of this costly and unlawful mandate. Housing First Minnesota’s goal is to expedite this change and turn our attention to the more complex affordability challenges we all face as the State of Minnesota continues to reimagine its housing policies. Failure to address this matter not only slows down this process but also increases the likelihood of unnecessary and costly litigation. Housing First Minnesota stands ready to discuss this matter with the city’s leadership. Please contact me directly to discuss this matter further. Respectfully, David Siegel Executive Director cc: Lakeville City Council Lakeville Planning Commission Justin Miller, City Administrator Daryl Morey, Planning Director