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Section 850.04 - Administration and Procedures for Variances, Rezoning, Transfer to Planned Districts and Conditional Use Permits.

850.04 Administration and Procedures for Variances, Rezoning, Transfer to Planned Districts and Conditional Use Permits.

Subd. 1 Variances and Appeals.

A. Zoning Board of Appeals. There is continued a separate Zoning Board of Appeals of the City. The Zoning Board of Appeals is the board of appeals and adjustments created pursuant to M.S. 462.354, Subd. 2. All members of the Commission, from time to time, shall be members, and the other members shall be six residents of the City appointed for a term of three years by the Mayor with the consent of a majority of the members of the Council. For hearings, the Board shall consist, at a maximum, of any five members, but three members shall constitute a quorum for conducting such hearings and making decisions. However, at least one Commission member shall be in attendance at each Board meeting, and shall be deemed to be the representative of the Commission for purposes of review and report by the Commission as required by M.S. 462.354, Subd. 2. The Board shall make no decision until the Commission, or a representative of it, has had reasonable opportunity, not to exceed 60 days, to review and report to the Board concerning the decision. All members shall serve without compensation. Members may resign voluntarily or be removed by a majority vote of the Council or pursuant to Section 180 of this Code. That Commission member in attendance at a meeting who has the then longest continuous service on the Commission shall be the Chair for that meeting. The Board shall adopt such bylaws as shall be necessary or desirable for conduct of its business. Staff services shall be provided by the Planning Department. Board members who discontinue legal residency in the City shall be automatically removed from office effective as of the date of such discontinuance. Vacancies shall be filled pursuant to Subsection 180.03 of this Code.

B. Powers and Duties of Board. The Board shall have the power and duty of hearing and deciding, subject to appeal to the Council, the following matters:

1. Requests for variances from the literal provisions of this Section.

2. Appeals in which it is alleged that there is an error in any order, requirement, decision or determination made by an administrative officer in the interpretation or enforcement of this Section; and

3. Requests for variances from the literal provisions of Section 1046 of this Code.

4. Requests for modifications form the requirements of Section 815 of this Code.

C. Petitions for Variances. The owner or owners of land to which the variance relates may file a petition for a variance with the Planning Department. The petition shall be made on forms provided by the Planning Department and shall be accompanied by the fee set forth in Section 185 of this Code. The petition shall be accompanied by plans and drawings to scale which clearly illustrate, to the satisfaction of the Planner, the improvements to be made if the variance is granted. The Planner may require the petitioner to submit a certificate by a registered professional land surveyor verifying the location of all buildings, setbacks and building coverage, and certifying other facts that in the opinion of the Planner are necessary for evaluation of the petition.

D. Appeals of Administrative Decisions. A person who deems himself or herself aggrieved by an alleged error in any order, requirement, decision or determination made by an administrative officer in the interpretation and enforcement of this Section, may appeal to the Board by filing a written appeal with the Planning Department within 30 days after the date of such order, requirement, decision or determination. The appeal shall fully state the order to be appealed and the relevant facts of the matter.

E. Hearing and Decision by the Board; Notice.

1. Within 60 days after the Planner determines that a variance petition is complete, and all required fees and information, including plans, drawings and surveys, have been received, or within 60 days after the filing of an appeal of an administrative decision, the Board shall conduct a public hearing and after hearing the oral and written views of all interested persons, the Board shall make its decision at the same meeting or at a specified future meeting.

2. Notice of variance hearings shall be mailed not less than ten days before the date of the hearing to the person who filed the petition for variance and to each owner of property situated wholly or partially within 200 feet of the property to which the variance relates insofar as the names and addresses of such owners can be reasonably determined by the Clerk from records maintained by the Assessor.

3. A notice of hearing for appeals of administrative decisions shall be published in the official newspaper of the City not less than ten days before the hearing. A notice shall also be mailed to the appellant.

4. No new notice need be given for any hearing which is continued by the Board to a specified future date.

F. Findings For Variances. The Board shall not grant a petition for a variance unless it finds that the strict enforcement of this Section would cause undue hardship because of circumstances unique to the petitioner's property and that the grant of said variance is in keeping with the spirit and intent of this Section. "Undue hardship" means that (i) the property in question cannot be put to a reasonable use as allowed by this Section; (ii) the plight of the petitioner is due to circumstances unique to the petitioner's property which were not created by the petitioner; and (iii) the variance, if granted, will not alter the essential character of the property or its surroundings. Economic considerations alone shall not constitute an undue hardship if reasonable use for the petitioner's property exists under the terms of this Section. A favorable vote by the Board shall be deemed to include a favorable finding on each of the foregoing matters even if not specifically set out in the approval resolution or the minutes of the Board meeting.

G. Appeals from Decisions of the Board.

1. The following individuals may appeal a decision of the Board:

a. any petitioner for a variance;

b. any owner to whom notice of the variance hearing is required to be mailed pursuant to this Section;

c. the appellant in the case of an appeal of an administrative decision;

d. any person who deems to be aggrieved by the Board's decision on the appeal of an administrative decision; and

e. any administrative officer of the City.

2. An appeal from a decision of the Board shall be filed with the Clerk no later than ten days after the decision by the Board. If not so filed, the right of appeal shall be deemed waived, and the decision of the Board shall be final.

H. Hearing and Decision by Council. The Council shall hear and decide all appeals from the decisions of the Board. The appeal shall be heard not later than 60 days after the date the appeal is filed. The Council shall follow the same procedures as to notices, hearings, findings for variances and decisions that the Board is required to follow relative to the subject matter of the appeal pursuant to this Section. A favorable vote by the Council shall be deemed to include a favorable finding on each of the required findings even if not specifically set out in the approval resolution or the minutes of the Council meeting.

I. Conditions on Variance Approvals. In granting a variance, the Board, or the Council on appeal, may impose conditions to ensure compliance with the purpose and intent of this Code and to protect adjacent properties.

J. Form of Action Taken and Record. The Board, or the Council on appeal, shall maintain a record of its proceedings which shall include the minutes of its meetings and final order concerning the variance petition or appeal of administrative decision. If a variance is granted, the petitioner, at the petitioner's expense, shall duly record the final order in the proper office to give constructive notice. A verified copy of such order, with the recording data, shall be delivered to the Planner. The Board, or the Council on appeal, may require such order to be recorded and such verified copy to be delivered to the Planner before the variance shall be effective.

K. Lapse of Variance By Non-User, Extension of Time.

1. If, within one year after the date of the meeting of the Board, or the Council on appeal, at which the variance was granted, the owner or occupant of the affected land shall not have obtained a building permit, if one is required, and commenced the work or improvement described in such petition, the variance shall become null and void unless a petition for extension of time in which to commence the proposed work or improvement has been granted.

2. A petition for extension shall be in writing and filed with the Clerk within such one year period. The petition for extension shall state facts showing a good faith attempt to use the variance and shall state the additional time requested to begin the proposed work or improvement. The petition shall be presented to the Board for hearing, findings and decision in the same manner as then required by this Section 850 for an original petition for variance. The Board may grant an extension of the variance for up to one year upon finding that a good faith attempt to use the variance has been made, that there is a reasonable expectation that the variance will be used during the extension, that speculation will thereby not be fostered, and that the facts and circumstances under which the original variance was granted are not materially changed.

L. Denial: No application for a variance which has been denied in whole or in part shall be resubmitted within twelve (12) months of the date of the order of denial, except that a new application may be permitted to the same denying board, if new evidence or a change of circumstances warrant it.

Subd. 2 Rezoning.

A. Initiation of Rezoning Process.

1. A petition for rezoning may be initiated by the owner of land proposed for transfer to another district or subdistrict, the Council or the Commission.

2. A petition by an owner shall be on forms provided by the Planner, shall be submitted with plans, data and information required by this Section, and such other information that the Planner believes necessary for evaluation of the petition. The petition shall be accompanied by the fee set forth in Section 185 of this Code.

B. Sign. The petitioner for rezoning shall erect, or cause to be erected, at least one sign per street frontage on the land described in the petition. The sign or signs shall be of a design approved by the Planner, shall be 36 inches by 60 inches in size, shall have letters at least four inches high using Helvetica medium typeface or other letter style approved by the Planner, shall be constructed of sturdy material, shall be neatly lettered, and shall be easily viewable from, and readable by persons on, the adjoining street. The sign or signs shall contain the following information:

"This property proposed for rezoning by:
(Name of Petitioner or Applicant)
(Telephone of Petitioner or Applicant)
For information contact Edina Planning Department:
Telephone No. 927-8861"

The petition shall not be deemed filed and the Commission shall not be required to hold any hearings on the petition until the sign has been erected as required and for at least ten days preceding the hearing. The sign shall be kept in good repair and shall be maintained in place until a final decision on the petition has been made by the Council, and shall be removed by the petitioner within five days after the final decision. The failure of any petitioner to comply fully with the provisions of this paragraph relating to the sign shall not prevent the Commission and Council from acting on the petition nor invalidate any rezoning granted by the Council. If the signs are not kept in good repair or removed as required, then the signs shall be deemed a nuisance and may be abated by the City by proceedings under M.S. 429, or any other then applicable provisions of this Code or State Law, and the cost of abatement, including administrative expenses and attorneys' fees, may be levied as a special assessment against the property upon which the sign is located.

C. Procedure for Rezoning to Planned Residential District, Regional Medical District, Planned Office District, Planned Commercial District and Planned Industrial District.

1. Preliminary Development Plan. The petition for rezoning shall include a Preliminary Development Plan drawn to a scale of not smaller than 30 feet to the inch upon which are shown the following data and information:

a. a boundary survey, prepared by a registered land surveyor, showing the entire outline, dimensions and area of the property to which the petition relates, and any existing structures, easements, water bodies, water courses and flood plains;

b. all existing structures, rights-of-way widths and traveled widths of all streets and alleys located within 100 feet of the perimeter of the property;

c. the location, general exterior dimensions and height of all proposed structures, and approximate gross floor area of non-residential buildings or number of dwelling units in residential buildings;

d. the location, arrangement and number of automobile parking stalls and truck loading facilities; and

e. such other information as is necessary, in the opinion of the Planner, to evaluate the petition, to determine consistency with the Comprehensive Plan, and to ensure compliance with the requirements of this Section and other applicable sections of this Code.

2. Commission Review and Hearing. Within 45 days after receipt by the Planner of the petition, fee and all other required information, in form and substance acceptable to the Planner, the Planner will review the petition, Preliminary Development Plan and the other information provided by the petitioner, and forward a report to the Commission. The Commission shall conduct a public hearing regarding the petition and Preliminary Development Plan. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 1,000 feet of the tract to which the petition relates insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor or from other appropriate records. After reviewing the report of the Planner and hearing the oral or written views of all interested persons, the Commission shall make its decision at the same meeting or at a specified future date and send its recommendation to the Council. No new notice need be given for hearings, which are continued by the Commission to a specified future date.

3. Council Hearings and Decision; Preliminary Zoning Approval. Upon request of the Planner, Manager or petitioner, and after review and recommendation by the Commission, the Council shall conduct a public hearing regarding the petition and Preliminary Development Plan. The hearing shall be held not later than 60 days after the date of the recommendation by the Commission. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 1,000 feet of the tract to which the petition relates insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor or from other appropriate records. After hearing the oral or written views of all interested persons, the Council shall make its decision at the same meeting or at a specified future date. No new notice need be given for hearings, which are continued by the Council to a specified future date. An affirmative vote of three-fifths of all members of the Council shall be required to grant preliminary rezoning approval. Provided, however, a rezoning from any residential zoning district to any nonresidential zoning district shall require an affirmative vote of four-fifths of all members of the Council. If preliminary rezoning approval is granted, the petitioner may prepare a Final Development Plan. In granting preliminary rezoning approval, the Council may make modifications to the Preliminary Development Plan and may impose conditions on its approval. The petitioner shall include the modifications, and comply with the conditions, in the Final Development Plan, or at another time and by other documents, as the Council may require or as shall be appropriate.”

4. Final Development Plan. The Final Development Plan shall include all required information and data delineated on the Preliminary Development Plan and, in addition, the following data and information:

a. exact location and elevation drawings of all existing and proposed structures on the tract including a description of existing and proposed exterior building materials;

b. the locations, dimensions and design features of all proposed streets, driveways, vehicular entrances and exits, driveway intersections with streets, parking areas, loading areas, maneuvering areas and sidewalks, together with dimensions and locations of all existing and proposed public and private easements;

c. a landscape plan and schedule in accordance with Subsection 850.10;

d. a general overall grading plan indicating final grades and the direction and destination of surface drainage;

e. location of all existing, and preliminary layout and design of all proposed, watermains, sanitary sewers, drainage facilities and storm sewers, together with dimensions and locations of all existing and proposed public and private easements; and

f. any other information necessary, in the opinion of the Planner, to evaluate the plan, determine consistency with the Comprehensive Plan and to ensure compliance with this Section and other applicable provisions of this Code.

5. Final Development Plan; Commission Review and Hearing. The Final Development Plan shall be in form and substance acceptable to the Planner. Within 45 days after receipt by the Planner of the Final Development Plan, the Planner shall forward a report to the Commission. The Commission shall conduct a public hearing regarding the Final Development Plan. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 1,000 feet of the tract to which the petition relates insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor or from other appropriate records. After reviewing the report of the Planner and hearing the oral or written views of all interested persons, the Commission shall make its decision at the same meeting or at a specified future date and send its recommendation to the Council. No new notice need be given for hearings, which are continued by the Commission to a specified future date. The Commission shall recommend approval by the Council upon finding that the proposed development:

a. is consistent with the Comprehensive Plan;

b. is consistent with the Preliminary Development Plan as approved and modified by the Council and contains the Council imposed conditions to the extent the conditions can be complied with by the Final Development Plan.

c. will not be detrimental to properties surrounding the tract;

d. will not result in an overly‑intensive land use;

e. will not result in undue traffic congestion or traffic hazards;

f. conforms to the provisions of this Section and other applicable provisions of this Code; and

g. provides a proper relationship between the proposed improvements, existing structures, open space and natural features.

A recommendation of approval by the Commission shall be deemed to include a favorable finding on each of the foregoing matters even if not specifically set out in the approval resolution or the minutes of the Commission meeting.

6. Council Hearing and Decision; Final Rezoning. Within 60 days after the recommendation on the Final Development Plan by the Commission, the Council shall conduct a public hearing on the Final Development Plan in the same manner and with the same notices as required for preliminary rezoning approval. After hearing the oral and written views of all interested persons, the Council may accept or reject the findings of the Commission and thereby approve or disapprove the Final Development Plan. An affirmative vote of three-fifths of all members of the Council shall be required to grant final rezoning approval. Provided, however, a rezoning from any residential zoning district to any nonresidential zoning district shall require an affirmative vote of four-fifths of all members of the Council. Approval may be made subject to modifications and conditions which, together with the Council's modifications and conditions at the time of preliminary rezoning approval and not done and fulfilled by the Final Development Plan, must be fulfilled and met, to the satisfaction of the Planner, before the final approval becomes effective. Approval of the Final Development Plan shall also constitute final rezoning of the tract included in the plans, and the publication of the ordinance amendment effecting the zoning change shall thereby be authorized, but no publication shall be done until any modifications and conditions made by the Council have been met and fulfilled to the satisfaction of the Planner.

7. Exceptions From Requirements. The Council may authorize exceptions from otherwise applicable requirements in the proposed district in connection with and at the same time as final rezoning approval.

8. Filing. The approved Final Development Plan shall be filed in the Planning Department.

9. Development. The development of the tract shall be done and accomplished in full compliance with the approved Final Development Plan, as modified by, and with the conditions made by, the Council, and in full compliance with this Section and other applicable provisions of this Code. Applications for building permits shall be reviewed by the Planning Department prior to issuance of such permits to determine if they conform to the provisions of this Section, the approved Final Development Plan, as modified by, and with the conditions made by, the Council, and other applicable provisions of this Code.

10. Changes to Approved Final Development Plan. Minor changes in the location and placement of buildings or other improvements due to unforeseen circumstances may be authorized by the Planner. Proposed changes to the approved Final Development Plan affecting structural types, building coverage, mass, intensity or height, allocation of open space and all other changes which affect the overall design of the property shall be acted on, reviewed and processed by the Commission and Council in the same manner as they reviewed and processed the Final Development Plan, except that a three-fifths favorable vote of the Council shall be required to authorize the proposed change.

11. Lapse of Approved Final Development Plan by Non-User; Extension of Time.

a. If a building permit has not been obtained, and if erection or alteration of a building, as described in the application for final development plan, has not begun within two years after final development plan approval, the approval shall be null and void unless a petition for extension of time in which to commence the proposed work or improvements has been granted.

b. A petition for extension shall be made in writing and filed with the City Clerk within such two year period. The petition shall state reasons showing why a building permit has not been obtained, or why erection or alterations have not commenced, and shall state the additional time requested to begin the proposed work or improvement. The petition shall be presented to the Council for hearing and decision in the same manner as then required for an original application. The Council may grant an extension of up to one year upon finding that:

i. there is a reasonable expectation that the proposed work or improvement will commence during the extension, and

ii. the facts which were the basis for approving the final development plan have not materially changed. No more than one extension shall be granted.

D. Procedure for Rezoning to Mixed Development District.

a. a boundary survey, prepared by a registered land surveyor, showing the entire outline, dimensions and area of the property to which the petition relates, and any of its existing structures, easements, water bodies, watercourses and floodplains;

b. all existing structures, rights-of-way widths and traveled widths of all streets and alleys located within 100 feet of the perimeter of the property;

c. the general location, general exterior dimensions and height of all proposed structures, and approximate gross floor area of non-residential buildings or number of dwelling units in residential buildings;

d. the location, arrangement and number of automobile parking stalls;

e. a traffic impact analysis, and travel demand management plan for projects proposed for rezoning to MDD-5 District or MDD-6 District (analysis and plan shall be separate documents delivered with the Preliminary Development Plan); and

f. such other information as is necessary, in the opinion of the Planner, to evaluate the petition, to determine consistency with the Comprehensive Plan, and to ensure compliance with the requirements of this Section and other applicable provisions of this Code.

3. Council Hearing and Decision; Preliminary Zoning Approval. Upon request of the Planner, Manager or petitioner, and after review and recommendation by the Commission, the Council shall conduct a public hearing regarding the petition and Preliminary Development Plan. The hearing shall be held not later than 60 days after the date of the recommendation by the Commission. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 1,000 feet of the tract to which the petition relates insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor. After hearing the oral or written views of all interested persons, the Council shall make its decision at the same meeting or at a specified future date. No new notice need be given for hearings which are continued by the Council to a specified future date. An affirmative vote of three-fifths of all members of the Council shall be required to grant preliminary rezoning approval. Provided, however, a rezoning from any residential zoning district to any nonresidential zoning district shall require an affirmative vote of four-fifths of all members of the Council. If preliminary rezoning approval is granted, the petitioner may prepare an Overall Development Plan for final rezoning approval. In granting preliminary rezoning approval, the Council may make modifications to the Preliminary Development Plan and may impose conditions on its approval. The petitioner shall include such modifications, and comply with such conditions, in the Overall Development Plan, or at such other time and by such other documents, as the Council may require or as shall be appropriate.

4. Council Hearing and Decision; Preliminary Zoning Approval. Upon request of the Planner, Manager or petitioner, and after review and recommendation by the Commission, the Council shall conduct a public hearing regarding the petition and Preliminary Development Plan. The hearing shall be held not later than 60 days after the date of the recommendation by the Commission. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 500 feet of the tract to which the petition relates insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor. After hearing the oral or written views of all interested persons, the Council shall make its decision at the same meeting or at a specified future date. No new notice need be given for hearings which are continued by the Council to a specified future date. An affirmative vote of four-fifths of all members of the Council shall be required to grant preliminary approval. If preliminary rezoning approval is granted, the petitioner may prepare an Overall Development Plan for final rezoning approval. In granting preliminary rezoning approval, the Council may make modifications to the Preliminary Development Plan and may impose conditions on its approval. The petitioner shall include such modifications, and comply with such conditions, in the Overall Development Plan, or at such other time and by such other documents, as the Council may require or as shall be appropriate.

5. Overall Development Plan; Commission Review and Hearing. The Overall Development Plan shall be in form and substance acceptable to the Planner. Within 45 days after receipt by the Planner of the Overall Development Plan, the Planner shall forward a report to the Commission. The Commission shall conduct a public hearing regarding the Overall Development Plan. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 1,000 feet of the tract to which the petition relates insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor or from other appropriate records. After reviewing the report of the Planner and hearing the oral or written views of all interested persons, the Commission shall make its decision at the same meeting or at a specified future date and send its recommendation to the Council. No new notice need be given for hearings, which are continued by the Commission to a specified future date. The Commission shall recommend approval by the Council upon finding that the proposed development:

a. is consistent with the Comprehensive Plan;

c. will not be detrimental to properties surrounding the tract;

d. will not result in an overly‑intensive land use;

e. will not result in undue traffic congestion or traffic hazards;

f. conforms to the provisions of this Section and other applicable provisions of this Code; and

g. provides a proper relationship between the proposed improvements, existing structures, open space and natural features.

6. Council Hearing and Decision; Overall Rezoning. Within 60 days after the recommendation on the Overall Development Plan by the Commission, the Council shall conduct a public hearing on the Overall Development Plan in the same manner and with the same notices as required for preliminary rezoning approval. After hearing the oral and written views of all interested persons, the Council may accept or reject the findings of the Commission and thereby approve or disapprove the Overall Development Plan. Final approval shall require a four-fifths favorable vote of all members of the Council. Approval may be made subject to modifications and conditions which, together with the Council's modifications and conditions at the time of preliminary rezoning approval and not done and fulfilled by the Overall Development Plan, must be fulfilled and met, to the satisfaction of the Planner, before the final approval becomes effective.

Approval of the Overall Development Plan shall also constitute final rezoning of the tract included in the plans. The publication of the amendment effecting the zoning change shall thereby be authorized, but no final rezoning or publication shall be effective or done until the modifications and conditions, if any, made by the Council have been met and fulfilled to the satisfaction of the Planner.

8. Filing. The approved Overall Development Plan and approved Final Site Plan shall be filed in the Planning Department.

9. Final Site Plan Approval. Multiple phase developments shall be subject to Final Site Plan review and action by the Commission and Council in the same manner as they review and act on the Overall Development Plan, except that a three-fifths favorable vote of the Council shall be required for approval. The installation of a sign as required by Paragraph B of Subd. 2 of this Subsection shall be required prior to consideration of a Final Site Plan by the Commission. Single phase developments shall include all information required for Final Site Plan approval at the time of Overall Development Plan review. Overall Development Plan approval shall also constitute Final Site Plan approval. Final Site Plan approval shall include all required information and data delineated on the Overall Development Plan and, in addition, the following data and information:

a. the exact location and elevation drawings of all existing and proposed structures in the proposed phase including a description of existing and proposed exterior building materials;

b. a landscape plan and schedule in accordance with Subsection 850.10;

c. the locations, dimensions and design features of all proposed streets, driveways, vehicular entrances and exits, driveway intersections with streets, parking areas, loading areas, maneuvering areas and sidewalks, together with dimensions and locations of all existing and proposed public and private easements;

d. location of all existing, and preliminary layout and design of all proposed, watermains, sanitary sewers, drainage facilities and storm sewers, together with dimensions and locations of all existing and proposed public and private easements;

e. any other information necessary, in the opinion of the Planner, to evaluate the plans and ensure compliance with requirements of this Section and other applicable sections of this Code; and

f. demonstrate that the Final Site Plan shall be consistent with the Overall Development Plan as approved and modified by the Council and containing the conditions imposed by the Council to the extent such conditions can be complied with by the Final Site Plans.

10. Development. The development of the tract shall be done and accomplished in full compliance with the approved Final Site Plan, as modified by, and with the conditions made by, the Council, and in full compliance with this Section and other applicable provisions of this Code. Applications for building permits shall be reviewed by the Planner prior to issuance of such permits to determine if they conform to the provisions of this Section, the approved Final Site Plan, as modified by, and with the conditions made by, the Council, and other applicable sections of this Code.

11. Changes to Approved Overall Development Plan and Final Site Plan. Minor changes in the location and placement of buildings or other improvements due to unforeseen circumstances may be authorized by the Planner. Proposed changes to the approved Overall Development Plan or Final Site Plan affecting structural types, building location, building coverage, mass intensity or height, allocation of open space and all other changes which affect the overall design of the property shall be acted on, reviewed and processed by the Commission and Council in the same manner as they reviewed and processed the Final Site Plan.

E. Procedure for Rezoning to Single Dwelling Unit District, Double Dwelling Unit District and Automobile Parking District.

1. Commission Review and Hearing. Within 45 days after receipt by the Planner of the petition, fee and all other required information, in form and substance acceptable to the Planner, the Planner will review the petition and the other information provided by the petitioner, and forward a report to the Commission. The Commission shall conduct a public hearing regarding the petition. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 1,000 feet of the tract to which the petition relates insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor or from other appropriate records. After reviewing the report of the Planner and hearing the oral or written views of all interested persons, the Commission shall make its decision at the same meeting or at a specified future date and send its recommendation to the Council. No new notice need be given for hearings, which are continued by the Commission to a specified future date.

2. Council Hearing and Decision; Preliminary Rezoning Approval. Upon request of the Planner, Manager or petitioner, and after review and recommendation by the Commission, the Council shall conduct a public hearing regarding the petition. The hearing shall be held not later than 60 days after the date of the recommendation by the Commission. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 500 feet of the tract to which the petition relates, insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor. After hearing the oral and written views of all interested persons, the Council shall make its decision at the same meeting or at a specified future date. No new notice need be given for hearings which are continued to a specified future date. An affirmative vote of three-fifths of all members of the Council shall be required to grant preliminary rezoning approval. Provided, however, a rezoning from any residential zoning district to any nonresidential zoning district shall require an affirmative vote of four-fifths of all members of the Council. In granting preliminary rezoning approval, the Council may make modifications to, and impose conditions on, the proposed rezoning.

3. Final Rezoning Approval. Upon request of the Planner, Manager or petitioner, after preliminary rezoning approval has been granted and after the modifications and conditions made and imposed by the Council have been met and fulfilled to the satisfaction of the Planner, the Council shall place the petition on its agenda and shall consider final rezoning approval. An affirmative vote of three-fifths of all members of the Council shall be required to grant final rezoning approval. Provided, however, a rezoning from any residential zoning district to any nonresidential zoning district shall require an affirmative vote of four-fifths of all members of the Council. Final rezoning approval shall include authorization to publish the amendment effecting the zoning change. Approval may be made subject to modifications and conditions which must be fulfilled and met, to the satisfaction of the Planner, before the final approval becomes effective and before the amendment is published.

F. One Year Limitation on Preliminary Rezoning Approval. Any petition which has not been granted final rezoning approval by the Council within one year after the date it received preliminary approval, shall be deemed rejected by the Council and the petition must again be filed, processed and approved pursuant to this Section as if it were a new petition.

G. Restriction on Rezoning After Denial of Petition. After the Council has denied a petition for rezoning, the owner of the tract to which the petition related may not file a new petition for a period of one year following the date of such denial for transferring the same tract, or any part, to the same district or subdistrict (if the district has been divided into subdistricts) to which such transfer was previously denied. Provided, however, that such petition may be filed if so directed by the Council on a three-fifths favorable vote of all members of the Council after presentation to the Council of evidence of a change of facts or circumstances affecting the tract.

H. Lapse of Rezoning by Non-User. If a building permit (if one is required) has not been obtained, and if the erection or alteration of a building, as described in the petition, has not begun, within two years after final rezoning approval of the tract by the Council, then the Commission, at any time and until the building permit is obtained and the erection or alteration begun, may review the zoning classification of the tract to determine if it continues to conform with the Comprehensive Plan. Based upon the review, the Commission may recommend to the Council that the final rezoning approval of the tract as previously granted be rescinded and become null and void, or that the tract be transferred to a different zoning district. The recommendation of the Commission shall be presented to the Council for hearing and decision, and notice shall be given in the same manner as is then required for an original petition for rezoning as provided by this Section. The Council may accept or reject the recommendation of the Commission and rescind the previously granted final rezoning approval, transfer the tract to a different zoning district, or reaffirm the final rezoning approval previously granted.

Subd. 3 Transfer to Planned Districts.

A. Improved Lots. Any lot transferred by this Section to a planned district, including, without limitation, the Planned Residential District, Planned Office District, Planned Commercial District, Planned Industrial District, Mixed Development District or Regional Medical District, which, on March 7, 1984, was improved with a building or buildings, shall not be required to comply with the provisions of Subsection 850.04 relative to a transfer of that lot to the planned district; provided that:

1. No new buildings shall be constructed on the lot which result in an increase in gross floor area of all buildings on the lot by more than ten percent;

2. No building existing on the lot as of March 7, 1984, shall be added to or enlarged in gross floor area by more than ten percent;

3. No dwelling units shall be added; and

4. No such existing building, if damaged or destroyed by fire, wind, earthquake, explosion or other casualty, shall be restored or repaired if the cost of restoration or repair exceeds one-half of the fair market value of the entire building on the date immediately prior to the date of such casualty (as such cost and fair market value are determined by the Assessor, or other person selected by the Manager); unless, in each case of 1., 2., 3., and 4. above, the then owner or owners of the lot shall comply with and complete the process for Final Development Plan approval established by Subparagraphs 4 through 10 of paragraph C. of Subd. 2 of this Subsection 850.04 and shall conform to and comply with all other provisions of this Section; provided that only three-fifths favorable vote of the Council shall be required to grant Final Development Plan approval. The requirements of this paragraph are in addition to those in Subd. 20 of Subsection 850.07 relating to non-conforming uses, buildings and lots. The installation of a sign as required by Paragraph B of Subd. 2 of this Subsection shall be required prior to consideration of a Final Development Plan by the Commission.

B. Unimproved Lots. Any lot transferred by this Section to a planned district, including, without limitation, the Planned Residential District, Planned Office District, Planned Commercial District, Planned Industrial District, Mixed Development District or Regional Medical District, which, on March 7, 1984, was not improved with a building or buildings shall be required, notwithstanding the transfer to such district by this Section, in connection with any improvement of the lot, to comply with and complete the process for Final Development Plan approval established by subparagraphs 4 through 10 of paragraph C. of Subd. 2 of this Subsection 850.04, and shall conform to and comply with all other provisions of this Section, provided that only three-fifths favorable vote of the Council shall be required to grant Final Development Plan approval. The installation of a sign as required by Paragraph B of Subd. 2 of this Subsection shall be required prior to consideration of a Final Development Plan by the Commission.

Subd. 4 Conditional Use Permits.

A. Initiation of Conditional Use Permit.

An application for a conditional use permit may be initiated by the owner or owners of the lot or building in question.

1. The application shall be on forms provided by the Planner and shall be submitted with required plans, data and information, and such other information as, in the opinion of the Planner, is necessary for evaluation of the application. The application shall be accompanied by the fee set forth in Section 185 of this Code.

B. Sign. All provisions and requirements in this Subsection relating to erection of a sign in connection with a rezoning of property shall apply to the applicant for a conditional use permit, and the applicant shall comply with all such provisions and requirements, except that the sign shall state that a conditional use permit is proposed for the property instead of rezoning.

C. Application Data.

1. If the conditional use permit is requested to allow a principal or accessory use that requires the construction of a new building or accessory use facilities, or additions or enlargements to an existing building or accessory use facilities, the application shall be drawn to a scale acceptable to the Planner, and be accompanied by plans containing the following data and information:

a. elevation drawings of all new buildings or accessory use facilities, or additions and enlargements to existing buildings or accessory use facilities, including a description of existing and proposed exterior building materials;

b. the location, dimensions and other pertinent information as to all proposed and existing buildings, structures and other improvements, streets, alleys, driveways, parking areas, loading areas and sidewalks;

c. a landscape plan and schedule in accordance with Subsection 850.10;

d. a floor plan showing the location, arrangement and floor area of existing and proposed uses; and

e. any other information required, in the opinion of the Planner, to evaluate the application, to determine consistency with the Comprehensive Plan, and to ensure compliance with the requirements contained in this Section and other applicable provisions of this Code.

2. If the conditional use permit is requested to allow a principal or accessory use that does not require construction of a new building or accessory use facilities, or additions or enlargements to an existing building or accessory use facilities, the application shall be accompanied by plans showing:

a. the location, arrangement and floor area of existing and proposed uses;

b. the location, dimensions and other pertinent information as to all buildings, structures, streets, alleys, driveways, parking areas, loading areas, sidewalks and landscaping; and

c. any other information required, in the opinion of the Planner, to evaluate the application, determine consistency, with the Comprehensive Plan, and ensure compliance with the requirements contained in this Section and other applicable provisions of this Code.

D. Commission Review and Hearing. Within 45 days after receipt by the Planner of the application, fee and all other required information, in form and substance acceptable to the Planner, the Planner will review the application and the other information provided by the petitioner, and forward a report to the Commission. The Commission shall conduct a public hearing regarding the application. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 1,000 feet of the tract to which the petition relates insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor or from other appropriate records. After reviewing the report of the Planner and hearing the oral or written views of all interested persons, the Commission shall make its decision at the same meeting or at a specified future date and send its recommendation to the Council. No new notice need be given for hearings, which are continued by the Commission to a specified future date

E. City Council Hearing and Decision. Upon request of the Planner, Manager or applicant, and after review and recommendation by the Commission, the Council shall conduct a public hearing regarding the application. The hearing shall be held not later than 60 days after the date of the recommendation by the Commission. A notice of the date, time, place and purpose of the hearing shall be published in the official newspaper of the City at least ten days prior to the date of the hearing. A similar notice of hearing shall be mailed at least ten days before the date of the hearing to each owner of property situated wholly or partly within 1,000 feet of the tract to which the application relates insofar as the names and addresses of such owners can reasonably be determined by the Clerk from records maintained by the Assessor. After hearing the oral and written views of all interested persons, the Council shall make its decision at the same meeting or at a specified future date. No new notice need be given for hearings which are continued to a specified future date. The Council shall not grant a conditional use permit unless it finds that the establishment, maintenance and operation of the use:

1. Will promote and enhance the general public welfare and will not be detrimental to or endanger the public health, safety, morals and general welfare;

2. Will not cause undue traffic hazards, congestion or parking shortages;

3. Will not be injurious to the use and enjoyment, or decrease the value, of other property in the vicinity, and will not be a nuisance;

4. Will not impede the normal and orderly development and improvement of other property in the vicinity;

5. Will not create an excessive burden on parks, streets and other public facilities;

6. Conforms to the applicable restrictions and special conditions of the district in which it is located as imposed by this Section; and

7. Is consistent with the Comprehensive Plan.

Approval of a conditional use permit requires a three-fifths favorable vote of all members of the Council. A favorable vote by the Council shall be deemed to include a favorable finding on each of the foregoing matters even if not specifically set out in the approval resolution or the minutes of the Council meeting.

F. Conditions and Restrictions. The Commission may recommend that the Council impose, and the Council with or without such recommendation may impose, conditions and restrictions upon the establishment, location, construction, maintenance, operation or duration of the use as deemed necessary for the protection of the public interest and adjacent properties, to ensure compliance with the requirements of this Section and other applicable provisions of this Code, and to ensure consistency with the Comprehensive Plan. The Council may require such evidence and guarantees as it may deem necessary to secure compliance with any conditions imposed. No use shall be established or maintained, and no building or other permit for establishing or maintaining such use shall be granted, until the applicant has met and fulfilled all conditions imposed by the Council to the satisfaction of the Planner.

G. Expansions of Conditional Uses. No use allowed by conditional use permit, or any building or structure accessory thereto, shall be increased in gross floor area or height, nor shall any off-street parking facilities accessory to the building or structure be enlarged in surface area to accommodate additional automobiles, without first obtaining, in each instance, a conditional use permit.

H. Restriction on Resubmission After Denial. No application for a conditional use permit which has been denied by the Council shall be resubmitted for a period of one year following the date of the denial by the Council. Provided, however, that the application may be resubmitted if so directed by the Council on a three-fifths favorable vote of all members of the Council after presentation to the Council of evidence of a change of facts or circumstances affecting the proposed use or tract on which it is to be located.

I. Lapse of Conditional Use Permit by Non-User, Extension of Time.

1. If no use allowed by the conditional use permit has begun within two years from the granting of the conditional use permit, the conditional use permit shall become null and void unless a petition for extension of time has been granted.

2. A petition for extension shall be in writing and filed with the Clerk within two years from the granting of the conditional use permit. The petition for extension shall state facts showing a good faith attempt to use the conditional use permit and shall state the additional time requested to begin the use. The petition shall be presented to the Council for hearing and decision in the same manner as then required for an original application. The Council may grant an extension of the conditional use permit for up to one year upon finding that:

a. a good faith attempt to use the conditional use permit has been made,

b. there is a reasonable expectation that the conditional use permit will be used during the extension, and

c. the facts which were the basis for the findings under which the original conditional use permit was granted have not materially changed. No more than one extension shall be granted. For purposes of this paragraph, a use shall be deemed begun when all work described in the original application, or information provided, has been completed and has received final City approvals and the use is operating for the purposes described in the original application.

J. Filing of Conditional Use Permit. If a conditional use permit is granted, the applicant, at the applicant's expense, shall duly file or record the permit in the proper office to give constructive notice of it. A verified copy of the permit, with the recording data on it, shall be delivered to the Planner. The Council may require that the permit be so recorded or filed, and the verified copy delivered to the Planner, before the permit shall become effective.

Subd. 5 Temporary Conditional Use Permits.

A. Purpose. The purpose of temporary conditional use permits is to allow disabled residents of dwelling units to conduct and operate permitted customary home occupations in their residence by means of such variances from the conditions otherwise imposed by this Section on such occupation as the Council deems necessary and appropriate to allow such persons to properly conduct and operate such occupation from their residence. The Council hereby finds and determines that it is in the best interests of the City and its citizens to provide a process and means by which disabled persons can carry on home occupations from their residence and thereby become or remain productive and gainfully employed, and that the granting of conditional use permits pursuant to this Subdivision will promote the public health, safety, morals and general welfare of the City, and its citizens. However, disabled residents who do not need variances from conditions imposed by this Section on customary home occupations need not, and are not required to, obtain a conditional use permit pursuant to this Subdivision.

B. Conditional Use Provisions Apply. All the provisions of paragraphs D. and H. of Subd. 4 of this Subsection 850.04 relative to the issuance of conditional use permits shall apply to temporary conditional use permits issued pursuant to this Subdivision, except as specifically changed by this Subdivision.

C. Application and Notice.

1. An application for a temporary conditional use permit may be initiated by the occupant of the residence from which the home occupation is to be conducted, whether such occupant is an owner or a lessee of the residence. The application shall be accompanied by the fee set forth in Section 185 of this Code.

2. The application for a temporary conditional use permit shall also be accompanied by the following additional information:

a. a letter (which shall be dated not earlier than 30 days prior to the date of the application) from the applicant's attending physician (who shall be duly licensed to practice medicine in Minnesota) certifying that the applicant is physically unable to be employed full-time outside of the applicant's residence;

b. the specific home occupation proposed by the applicant, including the expected number of weekly automobile trips to the dwelling unit by individuals other than the residents of the home expected to be generated by the home occupation, the number of hours per day and the number of days per week the home occupation will operate;

c. any proposed interior or exterior alterations to the dwelling unit necessary due to the proposed home occupation; and

d. any other information required, in the opinion of the Planner, to evaluate the application, to determine consistency with the Comprehensive Plan, and ensure compliance with the requirements contained in this Section and other applicable provisions of this Code.

3. The erection of a sign shall not be required in connection with the application for a temporary conditional use permit.

4. Notice of hearing before the Council shall be published and mailed as provided in paragraph E. of Subd. 4 of this Subsection 850.04 except that mailed notice shall be given only to owners of property situated wholly or partly within 350 feet of the property to which the application relates.

D. Conditions and Findings.

1. In order to grant a temporary conditional use permit, the Council must make the same findings as set forth in paragraph E. of Subd.4 of this Subsection 850.04.

2. In order to grant a temporary conditional use permit, the Council must also find that the proposed home occupation complies with the conditions of paragraph A. of Subd. 4 of Subsection 850.07, provided, however, that:

a. the Council may grant a variance of any condition in paragraph A. of Subd. 4 of Subsection 850.07, if deemed necessary by the Council to permit the applicant to properly operate and conduct the proposed home occupation and if the Council finds that such use will not negate or violate any of the findings to be made pursuant to paragraph E. of Subd. 4 of this Subsection 850.04; and

b. the maximum number of automobile trips to the dwelling unit of the applicant by individuals other than its residents generated as a result of such home occupation may be increased by the Council from ten per week to a maximum of twenty per week in connection with the granting of the permit.

3. Any permit granted pursuant to this Subdivision 850.04 shall remain in effect, if not earlier terminated under other provisions of this Section, only so long as the following conditions are observed and complied with:

a. that the applicant occupy the dwelling unit described in the permit, and then only so long as such applicant is physically unable to be employed full time outside of the applicant's residence;

b. that the findings made by the Council as set forth in paragraph E. of Subd. 4 of this Subsection 850.04 continue without change or violation; and

c. that the conditions of paragraph A. of Subd. 4 of Subsection 850.07, as varied by variances granted by the Council, are not violated.

E. Duration and Review of Permits.

1. Each permit issued pursuant to this Subdivision shall remain in effect only so long as the conditions set out in subparagraph 3. of paragraph D. of this Subd. 5 are observed and not violated.

2. The Council shall review each permit issued pursuant to this Subd. 5 on the first anniversary of the effective date of the permit and on each second anniversary (i.e., every other year) of the effective date of the permit to determine if any of the conditions are not being observed, or are being violated. Such review shall be made at a public hearing, notice of which shall be published and mailed in the same manner as notice would then be given under this Section for a then new conditional use permit. All persons may be heard, and the Council shall receive such evidence and information as it deems necessary or desirable, orally and in writing, at the hearing and continuations of the hearing. If, at the hearing, or a continuation thereof, the Council concludes, by resolution, that one or more of the conditions set out in Subparagraph 3. of paragraph D. of this Subdivision are not being observed or are being violated, then the Council may direct the Manager to institute proceedings to revoke the permit as provided in Subd. 9 of this Subsection 850.04. The foregoing provisions shall not prevent the City from exercising any remedies for violations of any conditions applicable to any conditional use permit whenever they occur.

F. All Districts. Customary home occupations conducted pursuant to temporary conditional use permits issued under this Subd. 5 shall be allowed as a conditional use in all districts in which dwelling units are allowed.

Subd. 6 Fees and Charges.

A. Petitions and Applications. Each petition or application filed with or submitted to the City pursuant to this Section shall not be deemed filed or submitted, and the City shall have no duty to process it, to act on it or respond to it, unless and until there is paid to the City the applicable fee for such petition or application, as then required by Section 185 of this Code. This paragraph shall not apply to petitions or applications filed or submitted by the Council, the Commission or any City official in its official capacity.

B. Administrative Expenses and Attorneys' Fees. Each petitioner and applicant, by filing or submitting a petition or application, shall have agreed to pay all administrative expenses and attorneys' fees, with interest and costs as provided, incurred by the City in connection with or as a result of reviewing and acting on such petition or application. If more than one person signs a petition or application, all such signers shall be jointly and severally liable for such expenses and fees, with interest and costs as provided. The expenses and fees to be paid to the City pursuant to this paragraph shall be payable upon demand made by the City, and if not paid within five days after such demand, shall bear interest from the date of demand until paid at a rate equal to the lesser of the highest interest rate allowed by law or two percentage points in excess of the reference rate. The petitioners and applicants shall also pay all costs, including attorneys' fees, incurred by the City in collecting the expenses, fees and interest, with interest on the costs of collection from the dates incurred until paid, at the same interest rate as is payable on the expenses and fees. For purposes of this paragraph, reference rate shall mean the rate publicly announced from time to time by First Edina National Bank, or any successor, as its reference rate, and if the bank, or its successor, ceases publicly announcing its reference rate, reference rate shall mean the interest rate charged from time to time by the bank on 90-day unsecured business loans to its most credit-worthy customers.

Subd. 7 Mailed Notice. Whenever this Section requires or permits mailed notice to property owners, the failure to give mailed notice, or defects in the notice, shall not invalidate the proceedings, provided a good faith attempt to comply with the applicable notice requirements was made. Any appropriate records may be used by the person responsible for mailing the notice to determine names and addresses of owners.

Subd. 8 Evidence of Ownership. If, in connection with any petition or application, the Planner requests evidence of ownership of the property to which the petition or application relates, the petitioner or applicant shall obtain, at the petitioner's or applicant's expense, and deliver to the Planner, a title opinion from an attorney acceptable to the Planner, or other evidence of such ownership acceptable to the Planner, in each case addressed to the City. Also, if so requested by the Planner, the petitioner or applicant shall obtain a written consent to the petition or application by all owners of such property as shown by the title opinion or other evidence of ownership and, if the request is made, the City shall have no duty to process, or to act on or respond to, such petition or application until such consents are delivered to the Planner.

Subd. 9 Violation, Penalty, Remedies.

A. Misdemeanor. Any owner or lessee of an entire building or property in or upon which a violation has been committed or shall exist, or any owner or lessee of that part of the building or property in or upon which a violation has been committed or shall exist, shall be guilty of a misdemeanor and subject to the penalties and remedies provided in Subsection 100.09 of this Code.

B. Civil Penalty. Any such person who, after being served with an order to remove any such violation, shall fail to comply with the order within ten days after being served, or shall continue to violate any provision of the regulations made under authority of this Section in the respect named in such order, shall also be subject to a civil penalty of not to exceed $500.

C. Violation of Conditions in Conditional Use Permits. If any person violates any condition or restriction imposed by the Council in connection with the grant or issuance of a conditional use permit, the City, in addition to other remedies available to it as provided in this Subdivision, may revoke the permit and all rights attributable to such permit. Revocation shall be done in the following manner:

1. The Manager or Planner shall notify the owner and occupant of the property to which such permit exists insofar as the names and addresses of such owner and occupant can reasonably be determined by the Clerk from records maintained by the Assessor, of the violation and request removal within a stated period, but not less than five days.

2. If the violation is not removed within the stated period, the Manager or Planner shall submit a report on the matter to the Council and request a hearing.

3. The Council, upon receipt of the report, shall set a hearing date, and notice shall be given to the owner and occupant at least ten days prior to the hearing.

4. After receiving the oral and written views of all interested persons, the Council shall make its decision at the same meeting or at a specified future date.

5. If the hearing is continued to a specified future date, no new notice need be given. If such permit is revoked by the Council, all use, activity and rights allowed by and attributable to such permit shall immediately cease.