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AN ORDINANCE AMENDING SECTIONS 50-7.2, 50-10, 50-15.6.E, 50-18.1.C, 50-19.8, 50-20.5.I, 50-20.5.J, 50-37.1.L, 50-37.6, 50-37.7, 50-37.8, AND 50-37.17, TO AMEND STANDARDS RELATED TO ACCESSORY STRUCTURES INCLUDING ACCESSORY SOLAR STRUCTURES AND ACCESSORY STRUCTURES IN FLOODWAYS AND STRUCTURES IN MU-W, LAND USE SUPERVISOR INTERPRETATIONS AND APPEALS, AND ADMINISTRATION OF VACATIONS OF RIGHT OF WAY, CONCURRENT USE PERMITS, AND HERITAGE PRESERVATION.
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CITY PROPOSAL:
The city of Duluth does ordain:
Section 1. That Section 50-7.2 of the Duluth City Code, 1959, as amended, be amended as follows:
Except as specifically provided in this Chapter, every structure erected or altered after November 19, 2010, shall be located on a lot as defined in this Chapter. There shall be only one principle structure on one lot unless a specific exception is stated in this UDC.
Accessory structures shall not be constructed or occupied prior to the construction and occupation of the principle structure without prior written approval from the Land Use Supervisor unless allowed in 50-20.5.J. The Land Use Supervisor may attach reasonable conditions to the approval, which shall include but is not limited to a financial security to guarantee removal of the accessory structure if the principle structure is not constructed within two years of the accessory structure’s construction.
Section 2. That Section 50-10 of the Duluth City Code, 1959, as amended, be amended as follows:
1. The land use supervisor shall be authorized to interpret the provisions of this Chapter unless a different city official is specifically designated in this Chapter to make a particular interpretation. The decisions of the land use supervisor are subject to appeal as described in Article V.
2. Land use supervisor interpretations affecting specific projects or property. Notice shall be provided by first class mail to owners of property located within 100 feet of any land use supervisor interpretations when the land use supervisor determination is limited in application to a specific project or property. The notice shall be mailed within 10 days of the date the interpretation is made. This requirement does not apply to land use supervisor determinations made under Section 50-37.1.L.
3. A notice of an interpretation of the land use supervisor that is not limited to any one subject property but applies to an area or region of the city such as all property within a specific zone district, shall be noticed in a newspaper of general circulation at least twice within 21 days of the date of the interpretation, and shall also be published on the City’s website within 10 days of the date of the interpretation being made.
4. Notices under this section shall not be deemed to be effective until the later of the date of mailing or publication.
Section 3. That Section 50-15.6.E of the Duluth City Code, 1959, as amended, be amended as follows:
All permitted development in the MU-W shall comply with the following development standards:
1. Proposed development shall be visually and functionally oriented toward the waterfront of Lake Superior, the harbor and the St. Louis River to the maximum extent possible so that users of buildings and associated outdoor areas have direct views and physical access to the waterfront;
2. To protect public views to the waterfront from the closest landward public street running approximately parallel to the water, all primary structures shall have a maximum width of 200 feet measured along the shoreline and shall be separated from other primary structures by a minimum of 50 feet. These requirements shall not apply to portions of buildings that do not block public views of Lake Superior, the harbor and the St. Louis River from the closest landward public street running approximately parallel to the water due to topography or the location;
3. Buildings shall have a primary façade, with a functioning entrance for residents, employees or patrons facing the waterfront, and a second primary façade with a similar functioning entrance facing at least one of the adjacent streets, to the maximum extent feasible;
4. The quality of façade design and materials and the level of detail on the building façade facing the water shall be comparable to that on any other building façade containing a functioning entrance. The building façade facing the water shall have at least 40 percent transparency, measured as set forth in Section 50-22.5.D.1; no rectangular area greater than 30 percent of each story of the façade facing the water may be windowless, as measured from floor to floor, and no horizontal distance greater than 15 feet of each story of a facade facing the water may be windowless;
5. For any development, redevelopment, or expansion of an existing structure or use, the parking requirements in Section 50-24 shall be met without use of the reduction allowed by 50-24.3, adjustment to required off-street parking. However, the required parking may be reduced as allowed by 50-24.3 only if the applicant can demonstrate to the Land Use Supervisor’s satisfaction that nearby properties provide sufficient supplemental off-street parking or that all the parking needs generated by the use can be met on site.
Section 4. That Section 50-18.1.C of the Duluth City Code, 1959, as amended, be amended as follows:
This Section shall apply to all lands within the city that are shown as flood plains on the NR-O map. For purposes of relating those districts to plats and lots within the city, the NR-O map shall be used as a working map in the administration of the flood plain controls unless it is clearly shown that there is an inconsistency between the flood insurance rate map, or the flood boundary and floodway map and said NR-O map, in which case the flood insurance rate map or flood boundary and floodway map, as applicable, shall control.
All lands within flood plains shall be divided into floodway districts, flood fringe districts, or general flood plain districts:
a) The floodway district shall include those areas designated as floodway on the flood boundary and floodway map identified in Section 50-18.A.2.b;
b) The flood fringe district shall include those areas designated as flood fringe on the flood boundary and floodway map;
c) The general flood plain district shall include those areas designated as Zone A on the flood insurance rate maps identified in Section 50-18.A.2.b., and those areas designated Zone A1-A30 on the flood insurance rate maps that do not have a corresponding floodway/flood fringe delineation on the flood boundary and floodway map;
Compliance.
Within the flood plain districts, no new structure or land shall be used and no structure shall be constructed, located, extended, converted or structurally altered without full compliance with the terms of this Section 50-18.1.C. Within the floodway, flood fringe and general flood plain districts, all uses not listed as permitted uses or special uses are prohibited;
Uses and special use permits - floodway.
Permitted uses in floodway.
Only the following uses shall be permitted within the floodway, and only if the land use supervisor determines that (a) the use is shown as a permitted use in the underlying zone district in Table 50-19.8, (b) the use has a low flood damage potential, (c) the use will not obstruct flood flows or increase flood elevations, and (d) the use does not involve structures, fill, obstructions, excavations or storage of materials or equipment:
Agriculture;
Industrial, commercial and mixed use loading areas, parking areas and airport landing strips;
Outdoor open space, recreation, and entertainment facilities and structures;
Residential lawns, gardens, parking areas and play areas;
Special uses in floodway.
The following uses involving accessory structures or fill or storage of materials or equipment may be permitted only after the issuance of a special use permit pursuant to Article V:
Structures accessory to a permitted use as listed in 50-18.1.C.2.a;
Mining, extraction and storage of sand, gravel and other materials;
Marina or yacht club or accessory residential boat dock;
Railroad yard or shipyard and related facilities, electric power transmission lines, major utilities or wireless communication towers and minor utilities and accessory wireless antennas attached to existing structures;
Bulk storage not listed elsewhere;
Placement of fill or construction of fences;
Road-ready recreational vehicles either on individual lots of record or in existing or new subdivisions or commercial or condominium type campgrounds, subject to the exemptions and provisions of Section 50-20;
Structural works for flood control such as levees, dikes, and floodwalls constructed to any height where the intent is to protect individual structures;
(c) Standards for special use permits in floodway.
A special use permit for uses and structures listed in subsection (b) above shall only be issued if the following standards are met:
(i) The proposed use or structure will not cause any increase in the stage of the 100-year or regional flood or cause an increase in flood damages in the reach or reaches affected;
Any fill deposited in the floodway shall be no more than the minimum amount necessary to grade or landscape, shall not in any way obstruct the flow of flood waters and shall be protected from erosion by the planting of vegetative ground cover, the use of rip rap or other method approved by the city;
Accessory structures:
• Shall not be designed for human habitation;
• Shall be constructed and placed on the building site so as to offer the minimum obstruction to the flow of flood waters;
• Shall be constructed whenever possible with the longitudinal axis parallel to the direction of flood flow;
• Shall be placed approximately on the same flood flow lines as those of adjoining structures; and
• Shall be elevated on fill or floodproofed to the flood protection elevation in accordance with the FP-1 or FP-2 flood proofing classifications in the State Building Code;
All floodproofed accessory structures must meet the following additional standards, if the building official determines that compliance is necessary to carry out the stated purposes of this Section 50-18.1.c:
• The structure must be adequately anchored to prevent flotation, collapse or lateral movement of the structure and shall be designed to equalize hydrostatic flood forces on exterior walls;
• Any mechanical and utility equipment in a structure must be elevated to or above the regulatory flood protection elevation or properly floodproofed;
As an alternative, an accessory structure may be internally or wet floodproofed to the FP-3 or FP-4 floodproofing classifications in the State Building Code, provided the accessory structure constitutes a minimal investment, does not exceed 576 square feet in size at its largest projection, and for a detached garage, the structure must be used solely for parking of vehicles and limited storage. The structure must meet the following standards:
• To allow for the equalization of hydrostatic pressure, there must be a minimum of two “automatic” openings in the outside walls of the structure having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding; and
• There must be openings on at least two sides of the structure and the bottom of all openings must be no higher than one foot above the lowest adjacent grade to the structure. Using human intervention to open a garage door prior to flooding will not satisfy this requirement for automatic openings;
The use will not include the storage or processing of materials that are, in time of flooding, flammable, explosive or injurious to human, animal or plant life. All materials or equipment stored shall be readily removable from the area within the time available after a flood warning;
Any structural works for flood control that will change the course, current, or cross-section of wetlands or public waters shall comply with the provisions of Minnesota Statutes, Chapter 103G.245;
Any levee, dike or floodwall constructed in the floodway shall not cause an increase to the 100-year or regional flood, based on technical analysis that assumes equal conveyance or storage loss on both sides of a waterway;
Within an A-O zone, there must be adequate drainage paths around structures on slopes to guide floodwaters around and away from proposed structures or structure additions;
Dredge spoil sites and sand and gravel operations shall not be allowed in the floodway unless a long-term site development plan is submitted which includes an erosion/sedimentation prevention element;
Uses and special use permits - flood fringe.
Permitted uses in flood fringe.
Those uses listed in Table 50-19.8 as permitted uses in the zone district where the property is located, provided that the building official determines that:
All structures, including accessory structures, shall be elevated on fill so that a structure’s lowest floor is above the regulatory flood protection elevation. The finished fill elevation for structures shall be no lower than one foot below the regulatory flood protection elevation and the fill shall extend at that elevation at least 15 feet beyond the outside limits of the structure. In A-O zones, the finished fill elevation for structures must be a minimum of two feet above the highest adjacent grade. The structure’s design and as-built condition in relation to the regulatory flood protection elevation must be certified by a professional engineer or architect licensed in Minnesota;
Any portion of a non-residential structure below the regulatory flood protection elevation will be structurally dry floodproofed in accordance with the FP-1 or FP-2 classification found in the State Building Code;
As an alternative to elevation, accessory structures that constitute a minimal investment and that do not exceed 576 square feet may be internally floodproofed in accordance with Section 50-18.1.C.2(c)(iii) and (iv) above;
Any placement of fill with a cumulative volume in excess of 1,000 cubic yards at any one time may only be used to elevate a structure in accordance with this subsection 3(a)(i);
Any stored materials or equipment shall be elevated on fill to the regulatory flood protection elevation;
Special uses in flood fringe.
The placement of more than 1,000 cubic yards of fill or other similar material, other than for the purpose of elevating a structure to the regulatory flood protection elevation, and the storage of materials and equipment below the regulatory flood protection elevation, may be permitted only after the issuance of a special use permit as provided in Article V. In addition, this use is subject to the limitations on flood plain variances in Article V and the following requirements:
Any fill deposited in the flood fringe shall be no more than the minimum amount necessary to grade or landscape, shall not in any way obstruct the flow of flood waters and shall be protected from erosion by the planting of vegetative ground cover, the use of rip rap or other method approved by the city;
The use must not include the storage or processing of materials that are, in time of flooding, flammable, explosive or injurious to human, animal or plant life. All materials or equipment stored shall be readily removable from the area within the time available after a flood warning;
Standards for all flood fringe uses.
All new principal structures must have vehicular access at or above an elevation not more than two feet below the regulatory flood protection elevation. If a variance to this requirement is granted, limitations on the period of use or occupancy of the structure for times of flooding may be specified;
Flood plain developments shall not adversely affect the hydraulic capacity of the channel and adjoining flood plain of any tributary watercourse or drainage system where a floodway or other encroachment limit has not been specified on the NR-O map;
Accessory land uses such as yards, railroad tracks, and parking lots may be at elevations more than two feet below the regulatory flood protection elevation. Any facility that will be used by employees or the general public must have a flood warning system that provides adequate time for evacuation if the area would be inundated by the regional flood to a depth and velocity such that when multiplying the depth (in feet) times velocity (in feet per second) the product number exceeds four;
Standards for recreational vehicles are contained in Section 50-20;
All manufactured homes and those recreational vehicles not meeting the exemption criteria must be securely anchored to an adequately anchored foundation system that resists flotation, collapse and lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state or local anchoring requirements for resisting wind forces;
Within an A-O zone, there must be adequate drainage paths around structures on slopes to guide floodwaters around and away from proposed structures or structure additions;
General flood plain district.
(a) Permitted uses in general flood plain district.
The uses listed in subsection C.2(a) above shall be permitted uses;
All other uses shall be subject to the floodway/flood fringe evaluation criteria below and the resulting designation shall be used in determining uses. If the property owner does not complete a floodway/flood fringe evaluation, the land is presumed to be floodway;
Land determined to be in the floodway pursuant to subsection 4.(b) shall have those permitted and special uses listed in Section 50-18.C.2 above;
Land determined to be in the flood fringe pursuant to subsection 4.(b) shall have those permitted and special uses listed in Section 50-18.C.3 above;
Procedures for floodway and flood fringe determinations within the general flood plain district:
The applicant shall submit appropriate information to a designated engineer or other expert person or agency for technical assistance in determining whether the proposed use is in the floodway or flood fringe district and to determine the regulatory flood protection elevation. Procedures consistent with Minnesota Regulations 1983, parts 6120.5000 - 6120.6200 and 44 Code of Federal Regulations Part 65 shall be followed in this expert evaluation. The designated engineer or expert is strongly encouraged to discuss the proposed technical evaluation methodology with the respective DNR Area Hydrologist prior to commencing the analysis. The designated engineer or expert shall:
Estimate the peak discharge of the regional flood;
Calculate the water surface profile of the regional flood based upon a hydraulic analysis of the stream channel and overbank areas;
Compute the floodway necessary to convey or store the regional flood without increasing flood stages more than 0.5 feet. A lesser stage increase than 0.5 feet shall be required if, as a result of the additional stage increase, increased flood damages would result. An equal degree of encroachment on both sides of the stream within the reach shall be assumed in computing floodway boundaries;
The city engineer shall present the technical evaluation and findings to the city council. The city council must formally accept the technical evaluation and the recommended floodway and/or flood fringe district boundary and that the proposed use is allowed in the area where it is proposed, or deny the permit application. Prior to official action the city council may submit the application and all supporting data and analyses to FEMA, the DNR or the planning commission for review and comment. Once the floodway and flood fringe district boundaries have been determined, and assuming the proposed use is allowed in the area where it is proposed, the city council shall refer the matter to staff who shall process the permit application consistent with the applicable provisions of this Section 50-18.1.C;
Public utilities, railroads, roads and bridges.
(a) All public utilities and facilities such as gas, electrical, sewer and water supply systems, with the exception of sumps and wet wells, to be located in the floodway or flood fringe shall be floodproofed in accordance with the State Building Code or elevated to above the regulatory flood protection elevation;
(b) Railroad tracks, roads and bridges to be located within the floodway or flood fringe shall comply with subsections 2 and 3 above, as applicable. Elevation to the regulatory flood protection elevation shall be provided where failure or interruption of these transportation facilities would result in danger to the public health or safety or where such facilities are essential to the orderly functioning of the area. Minor or auxiliary roads or railroads may be constructed at a lower elevation where failure or interruption of transportation services would not endanger the public health or safety;
(c) On-site water supply and sewage treatment systems: Where public utilities are not provided: 1) on-site water supply systems must be designed to minimize or eliminate infiltration of flood waters into the systems; and 2) new or replacement on-site sewage treatment systems must be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters and they shall not be subject to impairment or contamination during times of flooding. Any sewage treatment system designed in accordance with the state’s current statewide standards for on-site sewage treatment systems shall be determined to be in compliance with this Section;
6. Subdivisions.
New subdivisions in the flood plain area shall meet the following requirements:
(a) No land shall be subdivided which is unsuitable for reasons of flooding or inadequate drainage, water supply, or sewage treatment facilities. Manufactured home parks and recreational vehicle parks or campgrounds are considered subdivisions under this Section;
(b) All lots within the flood plain districts shall be able to contain a building site outside of the floodway district at or above the regulatory flood protection elevation;
(c) All subdivisions shall have water and sewage treatment facilities that comply with the provisions of this Chapter;
(d) All subdivisions shall have road access both to the subdivision and to the individual building sites no lower than two feet below the regulatory flood protection elevation, unless a flood warning emergency plan for the safe evacuation of all vehicles and people during the regional flood has been approved by the city council. The plan shall be prepared by a registered engineer or other qualified individual, and shall demonstrate that adequate time and personnel exist to carry out the evacuation;
(e) The floodway and flood fringe district boundaries, the regulatory flood protection elevation and the required elevation of all access roads shall be clearly labeled on all required subdivision drawings and platting documents;
(f) In the general flood plain district, applicants shall provide the information required in section 15-18.C.4(b) to determine the regional flood elevation, the floodway and flood fringe district boundaries, and the regulatory flood protection elevation for the subdivision site;
7. Amendments.
(a) The flood plain designation on the official zoning map shall not be removed from flood plain areas unless it can be shown that the designation is in error or that the area has been filled to or above the elevation of the regulatory flood protection elevation and is contiguous to lands outside the flood plain. Special exceptions to this requirement may be permitted by the commissioner of the department of natural resources (DNR) if the commissioner determines that, through other measures, lands are adequately protected for the intended use;
(b) All amendments to Section 50.18.1.C, including flood plain designation amendments to the official zoning map, must be submitted to and approved by the commissioner of the department of natural resources (DNR) prior to adoption. Changes in the official zoning map must meet the federal emergency management Agency’s (FEMA) technical conditions and criteria and must receive prior FEMA approval before adoption. The commissioner of the DNR must approve the amendment prior to community approval;
Section 5. That Section 50-19.8 of the Duluth City Code, 1959, as amended, be amended as
as shown in Attachment A, 50-19.8 Use Table, Allowing Solar, Geothermal, or Biomass Power Facilities As A Special Use in R-C, RR-2, P-1, and AP Zone Districts;
Section 6. That Section 50-20.5.I of the Duluth City Code, 1959, as amended, be amended as follows:
In all districts, other than building integrated solar collection systems, solar collection systems shall comply with the following requirements:
1. Ground-mounted solar system.
a) Solar collectors shall not be located in the front yard between the principal structure and the public right-of-way;
b) Solar collectors shall be located a minimum of six feet from all property lines and other structures;
c) Solar collector areas in any residential district shall not exceed the greater of one-half the footprint of the principal structure or 600 1,000 square feet, whichever is greater. The size of solar collector areas in all districts except residential districts shall not exceed one-half of the footprint of the principal structure. Ground mounted solar collectors that serve a government building or public safety building, or water or sewer pumping stations or treatment facilities, are exempt from this requirement;
d) Free-standing or ground-mounted solar installations shall not exceed 20 feet in height, when the system is oriented at its maximum design pitch;
Roof-mounted or wall-mounted solar system.
a) A solar collection system shall be located a minimum of six feet from all property lines and other structures except the structure on which it is mounted;
b) Notwithstanding the height limitations of the zoning district, building-mounted solar energy systems shall not extend higher than three feet above the ridge level of a roof on a structure with a gable, hip or gambrel roof and shall not extend higher than ten feet above the surface of the roof when installed on a flat or shed roof;
c) The solar collector surface and mounting devices for building-mounted solar energy systems shall be set back not less than one foot from the exterior perimeter of a roof for every one foot that the system extends above the parapet wall or roof surface, if no parapet wall exists, on which the system is mounted. Solar energy systems that extend less than three feet above the roof surface shall be exempt from this provision;
d) A solar collection system may be located on an accessory structure;
Solar easements.
A property owner who has installed or intends to install a solar collection system shall be responsible for negotiating with other property owners in the vicinity for any necessary solar easement and shall record the easement with the county recorder. If no such easement is negotiated and recorded, the owner of the solar collector shall have no right to prevent the construction of structures permitted by this Chapter on nearby properties on grounds that the construction would cast shadows on the solar collection system;
Section 7. That Section 50-20.5.J of the Duluth City Code, 1959, as amended, be amended as follows:
1. In any residential district, any accessory building that is erected prior to the construction of the principal building shall comply with the following conditions:
a) The construction of the principal building shall be completed and the certificate of occupancy for such principal use issued within two years of issuance of the building permit for the accessory building;
b) Prior to issuance of a building permit for such accessory use, a building demolition bond shall be approved by the city and in an amount sufficient to demolish such accessory structure be filed with the building official;
c) The owner shall execute a license, in a form approved by the city, authorizing the city to enter upon the real property for the purpose of demolishing such accessory structure in the event a principal structure is not completed as required by this Section.
2. In the R-2 district, accessory building includes a storage garage on a lot occupied by a multi-family dwelling, townhouse or rooming house;
3. In the MU-N district and all residential districts, accessory buildings shall be subject to the following restrictions:
a) Except for truckload or trailer-load retail sales lasting less than 30 days where allowed, no accessory use shall be conducted in or out of a trailer or truck;
b) Storage of trailers and trucks or storage of goods within trailers and trucks shall not be a permitted accessory use unless (i) the primary use of the lot is a parking lot, parking garage, or filling station, or (ii) the truck or trailer is used on a regular basis for deliveries or the hauling of supplies to or from a business;
4. In the MU-C, MU-I and MU-W districts, accessory buildings shall be erected at the same time or after the construction of the principal building and subject to the following restrictions:
a) Except for truckload or trailer-load retail sales lasting less than 30 days, no accessory use shall be conducted in or out of a trailer or truck;
b) The storage of trailers and trucks or the storage of goods within trailers and trucks shall not be a permitted use unless (i) the primary use of the lot is a parking lot, parking garage, filling station, automobile or light vehicle sales or service, or automobile or light vehicle storage, or (ii) the truck or trailer is used on a regular basis for deliveries or the handling of supplies to or from a business;
5. In the MU-B, I-G, and I-W districts, accessory buildings shall be erected at the same time or after the construction of the building for the principal use;
6. An accessory building may observe an equal or greater distance to the front property line as provided by a principal structure if the accessory building provides the front and side yards required for dwelling in that district as per Article II and Section 50-20;
7. If a principal structure is demolished or removed, any subordinate existing accessory structure must be demolished or removed within two years of the date of the principal structure being demolished or removed.
Section 8. That Section 50-37.1.O of the Duluth City Code, 1959, as amended, be amended as follows:
This Section is intended to comply with the provisions of MSA 462.357 and MSA 360.068 as amended, and shall be interpreted to comply with those provisions wherever possible.
1. General provisions for appeal to planning commission.
Except as noted in subsection 2, any person aggrieved by, or any department of the city affected by, any decision of any city official engaged in the administration or enforcement of this Chapter may appeal that decision to the planning commission. The appeal must be filed within ten days after the decision by filing with the land use supervisor building official a written notice of appeal addressed to the commission and specifying the grounds of the appeal;
If the appeal relates to a decision regarding the zoning of an airport or the Airport Overlay district, any person aggrieved by the decision, any taxpayer affected by the decision and any governing body of a municipality, county or airport zoning board, that believes the decision is an improper application of this Chapter as it concerns that governing body or board may appeal that decision to the airport board of adjustment. The appeal must be filed within ten days after the decision by filing with the building official a written notice of appeal addressed to the board and specifying the grounds of the appeal. If the appellant is a person aggrieved or a taxpayer affected by the decision regarding the zoning of an airport or the Airport Overlay district, the applicant shall submit an appeal to the city clerk in the manner set forth in Minnesota Statutes 360.068, Subdivision 2. All appeals shall be pursuant to and consistent with the procedures in the Duluth International Airport Zoning Ordinance adopted by the city and four other jurisdictions, and in the event of an inconsistency between that Airport Zoning Ordinance and this Chapter, the provisions of the Airport Zoning Ordinance shall govern;
The land use supervisor building official shall promptly transmit to the commission, or to the airport board of adjustment, as applicable, the documents and records related to the decision being appealed;
A timely appeal shall stay all proceedings involved in the appeal; and no appeal shall be deemed to permit the appellant to do or to continue doing, directly or indirectly, any act or thing prohibited by the decision being appealed. However, if the land use supervisor building official notifies the planning commission in writing that a stay would cause imminent peril to life or property, and provides written reasons for that opinion, the planning commission may order that proceedings not be stayed pending appeal;
The commission shall fix a time for a hearing on the appeal, shall provide notice of the hearing pursuant to Section 50-37.1.H, and shall hold a public hearing pursuant to Section 50-37.1.I;
Any party may appear at the hearing in person, by agent or by attorney. Notice of the decision of the board shall be mailed to the appellant;
If the appeal alleges that the boundaries of a wetlands or shorelands area on the Natural Resources Overlay map in Section 50-18.1 are in error, the appellant shall bear the burden of proving the map erroneous by the production of clear and convincing technical evidence;
2 Exceptions.
An appeal from any decision regarding the interpretation or application of sign regulations in subsections 50-27.1.I, No safety obstructions, 50-27.1.L, Attachment to buildings, 50-27.1.M, Wind pressure design, 50-27.1.N, Electrical wiring, or 50-27.1, Certification of structural engineer, must be taken to the state building official as provided in the State Building Code;
An appeal from a decision regarding a building permit must be taken to the building appeals board created in Article IV of Section 10 of the City Code or to the state building official;
An appeal from any decision under the housing code provisions in Section 50-32 of this Chapter must be taken to the building appeals board;
If an applicant believes that the decision of staff regarding compliance with the requirements of the SP-O zone district is incorrect or deprives the applicant of the reasonable use of his or her property, or is unreasonable given the size and shape of the property and its orientation to the protected views, the applicant may request review of the decision by the planning commission. The planning commission’s review shall be based on the purpose and standards of this Section, but may authorize variations to those standards, in accordance with the procedures in Article V of this Chapter, if unusual site conditions not generally shared along Skyline Parkway make compliance with the standards unreasonable or ineffective to protect the intended views of Lake Superior, the St. Louis River and the harbor;
3 Powers of planning commission on appeal.
The planning commission shall consider the record of the application and any testimony presented at the hearing regarding the application of this Chapter to the application and shall affirm, modify or reverse the decision appealed, and may make any orders, requirements, decisions or determinations that the building official or land use supervisor could have made regarding the application;
In hearing permitted appeals of decisions regarding the sign regulations in Section 50-27, the planning commission shall have only the power to affirm, reverse or modify the decision of the land use supervisor building official;
In the case of an appeal regarding the application of the NR-O Natural Resources Overlay district, no relief shall be granted that violates the limitations on variances applicable to that district;
The decision of the planning commission shall be final unless a further appeal is filed pursuant to subsection 4 below;
4 Appeals of planning commission decisions to council.
Except as provided in subsection 5 below, any person aggrieved by, or any department of the city affected by, any decision of the planning commission on an appeal pursuant to subsection 1 above may appeal that decision to the council;
Any appeal must be filed within ten days after the planning commission’s decision by filing with the city clerk a written notice of appeal addressed to the council and specifying the grounds for the additional appeal;
The filing of a notice of appeal shall stay all proceedings in furtherance of the decision appealed from. However, if the building official land use supervisor notifies the council in writing that a stay would cause imminent peril to life or property, and provides written reasons for that opinion, the council may order that proceedings not be stayed pending appeal;
The council shall hear the appeal at the next scheduled meeting with time available, and may affirm, modify or reverse the board's decision, and may make any orders, requirements, decisions, or determinations it deems appropriate regarding the appeal;
No decision on an appeal or variance shall have the effect of allowing a use that is not a permitted or special use in the zone district where the property is located;
If the appeal is regarding an application in any district where the approval of a district plan is required or requested prior to development, the council shall only approve development plans if it finds that the requirements for the district plan in that district will be satisfied;
5 Appeal of planning commission decisions to the courts.
In the case of an appeal regarding the zoning of an airport or an Airport Overlay district, the appeal shall proceed pursuant to applicable state law and shall be perfected within 60 days after the decision appealed from is filed in the office of the planning commission;
In case of decisions appealable to the district court pursuant to MSA 462.361, the appeal shall be perfected in 60 days after the decision appealed from is filed in the office of the planning commission;
All other appeals not otherwise provided for above shall be pursuant to MSA 606.01;
6 Appeals of heritage preservation commission decisions to council.
Where applicable, subsection 50-37.1.O.4 shall apply of heritage commissions decisions, when appealable to city council;
Section 9. That Section 50-37.6 of the Duluth City Code, 1959, as amended, be amended as follows:
50-37.6 Vacation of street.
This Section applies to all applications to vacate a public street, highway or utility easement. This Section is intended to comply with the provisions of City Charter Section 100.
A. Application.
1. An application for vacation of a public street, highway or utility easement may be made by the City or must be accompanied by a petition of the person or persons who own a majority of the lineal frontage of the land abutting the portion of the street, highway or utility easement pro-posed to be vacated.
2. The application shall be filed with the city and forwarded to the planning commission for review;
3. Other application provisions of Section 37.1.B shall apply to the extent they are consistent with subsections 1 and 2 above;
Procedure.
1. Review and recommendation. The city assessor shall review the application to determine the sufficiency of the signatures on the petition. The planning commission shall review the application, conduct a public hearing on the proposed vacation pursuant to Section 50-37.1.I, with public notice as required by Section 50-37.1.H and make a recommendation to council based on whether the petition meets the criteria in subsection C below;
2. Council decision. Upon receipt of the planning commission recommendation, and a copy of the vaca-tion plat prepared by the applicant and approved by the city engineer, the council shall make a final decision by resolution pursuant to Section 100(b)5 of the City Charter. Failure to present a vacation plat meeting the city engineer's requirements to the land use supervisor within 90 days of the planning commission's recommendation shall result in the application being denied;
3. Recording. After approval of the vacation, the city clerk shall file the vacation plat and authorizing resolution in the office of the county recorder;
Criteria.
The planning commission shall review the proposed vacation, and council shall approve the proposed vacation, or approve it with modifications, if it determines that the street, highway or easement proposed for vacation:
1. Is not and will not be needed for the safe and efficient circulation of automobiles, trucks, bicycles or pedestrians or the efficient supply of utilities or public services in the city;
2. Where the street terminates at a waterfront or shoreline, the street is not and will not be needed to provide pedestrian or recreational access to the water;
3. Is not otherwise needed to promote the public health, safety or welfare of the citizens of Duluth.
Section 10. That Section 50-37.7 of the Duluth City Code, 1959, as amended, be amended as follows:
50-37.7 Concurrent use of streets permit.
This Section applies to all applications for construction of a skywalk and to any other application requesting that the city approve the concurrent use of the street surface, right-of-way or the air rights above the street or the land beneath the street, but shall not apply to the following:
1. Use of a portion of a public sidewalk for a café, eating area, transit shelter or bench, or bicycle parking area, or
2. An awning, canopy, marquee or wall sign, including building mounted exterior lights that conform to the limits of 50-31 and that provide illumination to an awning, canopy, marquee, or wall sign, extending not more than 18 inches into the public street right-of-way, or an awning or canopy of canvas, canvas-like material, nylon or vinyl-coasted fabric extending into the public street right-of-way, up to the limits established by Section 50-27, and
3. HVAC air ducts, vents, and related vent covers/hoods painted to match the color of the building where they are mounted, but not including mechanical units (ie. condensers) and motors, extending not more than 18 inches into a public alley right-of-way and having a vertical clearance of at least twelve feet six inches (12’6”) over the surface of the alley;
A. Application.
An application for concurrent use of streets shall be filed pursuant to Section 50-37.1.B;
Procedure.
Review and recommendation.
The planning commission shall review the petition, conduct a public hearing on the application pursuant to Section 50-37.1.I, with public notice as required by Section 50-37.1.H and make a recommendation to council based on whether the application meets the criteria in subsection C below;
Council decision.
Upon receipt of the planning commission recommendation, the council shall make a decision to approve, approve with modifications or deny the application, in whole or part, based on the criteria in subsection C below. The council action shall be by ordinance;
Criteria.
The planning commission shall review the application, and council shall approve the application or approve it with modifications, if it determines that:
The proposed concurrent use will not harm or inconvenience the health, safety and general welfare of the city;
Any proposed skywalk will significantly improve the circulation of pedestrians in the city without exposure to weather conditions;
No portion of a public easement proposed for use is being physically used or occupied by the public.
For requests for off-street parking in a public street right of way, a concurrent use permit may be granted in the following circumstances:
(a) Where overnight on-street parking is prohibited within that portion of the street frontage abutting the property; and
(b) Where the distance between the principle structure and the public street right of way is 18 feet or less; and
(c) Where access to the side or rear yard is not possible due to the presence of the principle structure and the lack of an improved alley; and
(d) Where a site plan has been submitted showing the arrangement of parking, landscaping, and pedestrian access to the property meeting the following standards:
(i) The parking area must be at least 9 feet wide by 17 feet deep, including any extension of the parking space from the public right of way into the abutting private property, and must not block existing or proposed public improvements such as sidewalks or streets;
(ii) The parking area width must not exceed 55% of the lot width;
(iii) The parking area must be improved with bituminous, concrete, or similar materials or pervious paving system;
(iv) A paved walkway at least 3 feet wide must be provided that links the front entrance of the dwelling and the street;
(v) A wall, fence or dense vegetative screen at least 3 feet tall and at least 75% opaque must be provided to screen parked vehicles from view of abutting properties;
(vi) Barriers must be installed to prevent vehicles from overrunning the parking and driveway areas, such barrier may be a fence, wall or raised curbing (or concrete parking bumpers when secured to the underlying pavement);
(e) A placard with a diagram no less than 5 inches by 7 inches showing the location and arrangement of parking spaces shall be visible at all times from the exterior of the dwelling; such placard shall be on all-weather media and installed on the front exterior door at an elevation of between 2 feet and 6 feet above the threshold;
(f) The applicant must sign a document acknowledging that private improvements installed in the public right of way may be removed by the City if needed for installation or repair of public improvements or if the applicant violates the terms of the permit.
Section 11. That Section 50-37.8 of the Duluth City Code, 1959, as amended, be amended as follows:
50-37.8 Historic resource designation.
A. Application.
1. The heritage preservation commission may, upon its own motion, propose and hear applications to designate a building, structure, site, or object as a local historic landmark. Any property owner or contract purchaser may petition the heritage preservation commission to designate their building, structure, site, or object as a local historic landmark;
2. The application provisions of Section 37.1.B shall apply to the extent they are consistent with subsection 1 above;
B Procedure.
1 Review and recommendation by heritage preservation commission.
The heritage preservation commission shall review the application, submit the application to the planning commission, conduct an investigation and public hearing pursuant to Section 50-37.1.I, with public notice as required by Section 50-37.1.H, make a recommendation to council, and report on the historical, cultural and architectural significance of the buildings, structures, sites or objects proposed for designation The report shall also attempt to determine the economic status of the property or properties by providing information such as assessed value, recent real estate transactions and other appropriate data. A copy of the report shall be sent to the state historic preservation officer for review and comment in accordance with MSA 471.193. Any comments made by the planning commission and state historic preservation officer regarding a proposed designnation must be included in the commissioner’s recommendation to the council;
2 Review and recommendation by planning commis-sion.
The planning commission shall review the application and make a recommendation to the heritage preservation commission and council. In its review and recommendation, the commission shall consider potential effects on the surrounding neighborhood, economics, environment and other planning considerations;
3 Designation by council.
Upon receipt of the report and recommendation of the heritage preservation commission, the council shall make a decision to approve, approve with modifications or deny the designation, in whole or part, based on the criteria in subsection C below. The council action shall be by ordinance;
4 Preservation Plan.
Within one year of approval of the designation, a preservation plan must be submitted by the applicant of the historic resource designation to the Heritage Preservation Commission for review. The Heritage Preservation Commission may approve, approve with modifications, or deny the preservation plan;
5 Registration of historic sites.
The city clerk shall record or file with the county recorder the legal description of all properties affected by the council action that also have an approved preservation plan. The city clerk shall also distribute an official list of all locally designated historic preservation landmarks and districts to the land use supervisor and the state historic preservation officer;
Section 12. That Section 50-37.17 of the Duluth City Code, 1959, as amended, be amended as follows:
50-37.17 Accessory home share permit
This Section applies to an accessory home share permit for the offering or advertising, for trade or sale, of a habitable room or space in an owner-occupied dwelling for a period of 29 days or less;
B. Application.
An application for an accessory home share permit shall be filed pursuant to Section 50-37.17;
Procedure.
The The land use supervisor shall review and make a decision on an application based on the criteria in subsection 50-205.5.G. The land use supervisor may refer the application to any city, county or other public or quasi-public agency deemed necessary to confirm whether the criteria in subsection C have been met;
Criteria.
An application for a certificate of occupancy shall be filed pursuant to Section 50-37.1.B;
Section 13. That this ordinance shall take effect 30 days after its passage and publication. (Effective date: ________, 2020)
Statement of Purpose
STATEMENT OF PURPOSE: This ordinance implements text amendment related to development standards regulated by chapter 50 of the City Code, known as the Unified Development Chapter (UDC).
This ordinance clarifies the standards to be applied to accessory structures in general, in addition to specific language to accessory structures related to solar (to provide more flexibility), and accessory structures in floodways (to reduce future flood hazards), and structures in the MU-W (to reduce confusion on applicability). The ordinance also provides clarification on the role and responsibility of the Land Use Supervisor, and the process for appeals. Finally, this ordinance adds some clarification to some administrative processes related vacation of right of way (to mirror the proposed change to the city charter), concurrent use permits, and heritage preservation plans.
The planning commission held a public hearing at their November 10, 2020, regular meeting. Following discussion and additional amendments to the proposed text change by members of the planning commission, the commission voted with 9 yeas, 0 nays, and 0 abstentions, to recommend that the city council approve the text change to the Unified Development Chapter of the City Code.