All property owners within 350 feet of the Subject Property were notified of the Public Hearing via Standard US Mail.  A Notice of Public Hearing was also published in the Anoka County Union.

Although accessory dwellings are not currently allowed by City Code, the City did approve the accessory dwelling by CUP in 2000, thereby affording the Subject Property certain lawful, non-conforming rights under Minnesota Statute Sect. 462.357 subd. 1 e and City Code Sect. 117-57.  This type of use would be considered an accessory apartment or an accessory dwelling.  Neither is listed as an allowable use under Chapter 117 of City Code.  Furthermore, City Code Section 117-348 states that there shall be only one (1) main building per lot. 

Prior to 2000, the detached accessory structure was converted to office space for a home occupation.  Eventually, the home occupation was relocated, and the home occupation use was terminated.

In 2000, the previous property owner applied for a CUP to convert the detached accessory structure to a detached accessory apartment with the intent to provide housing for their mother.  The request was approved, as noted above.  The detached accessory apartment secured necessary building permits, including installation of a separate septic system and other applicable building code requirements in order to make it habitable as a dwelling unit.  The CUP included a definition of 'family' specific to the request for the Subject Property.  The CUP defined 'family' as someone related  by blood, marriage, or adoption to the original Property Owner.

In 2003, the City adopted a Housing Maintenance Code.  Included in the Housing Maintenance Code was a new definition of 'family' as well as a licensing requirement.  The definition of 'family' applied community wide, including the Subject Property, and was defined as "(a) an individual, or group of persons related by blood, marriage, or adoption, including foster children, living together as a single housekeeping unit; (b) residents of a State licensed community residential facility as defined and authorized by State law; (c) a group of not more than ten persons who need not be related by blood, marriage, or adoption, living together as a single housekeeping unit.

In 2008, the City approved a rental license for the detached accessory apartment, based on the 2003 Housing Maintenance Code.  There were two (2) separate licenses issued for the Subject Property; one (1) for the main dwelling, and one (1) for the detached accessory apartment.  Although the approval appears to be in conflict with the provisions of the approved 2000 CUP, approval was granted based on the provisions of the 2003 Housing Maintenance Code and the community-wide definition of 'family' found within said code.

In or about 2009, two (2) important changes were made to City Code relevant to the current request.  First, as part of the re-codification process, the City adopted the 2006 International Property Maintenance Code (IPMC), which was intended to replace certain provisions of the 2003 Housing Maintenance Code.  In addition, some time after adoption of the IPMC, the City approved an amendment to City Code eliminating the requirement to obtain a Rental License in certain circumstances, including single-family dwellings.  As part of this process, the definition of 'family' was removed and not replaced in any new section of City Code.

In 2010, Mr. Reed purchased the Subject Property.  At the time of sale, Staff was contacted by a real estate agent regarding the status of what was being marketed as a 'guest cottage'.  With any request that was submitted to the City, a copy of the CUP that was approved in 2000 was sent as background, which included the provision that the tenant of this dwelling needed to be related to the primary dwelling tenant.  Furthermore, Staff issued a letter to the previous Property Owner/Seller asking the Seller to disclose the existence and provisions of the CUP.  A copy of this letter is included in the City's Property File for the Subject Property.  In addition, Staff has verified that the CUP was recorded against the Subject Property with the Anoka County Recorder, and should have been identified with any title search.

As it relates to the City's policies and ordinances, the City Council recently addressed accessory apartments and whether the City's policy should allow for these types of uses.  However, at that time, questions regarding regulation of off-street parking and maintenance of the dwellings remained unresolved.  There are certain benefits in allowing accessory apartments, especially from an affordable, life-cycle housing standpoint.  Accessory apartments do allow independent living arrangements, especially for family members that have the need or desire to live in close proximity to other family members for a variety of reasons.  However, Staff reminds the City Council that it is acting in an administrative manner for these types of requests, and any change is a broader policy discussion.  If the City Council desires to consider allowing this type of use for future requests, amendments to City Code will need to be processed and specifically address off-street parking and housing maintenance standards.  However, this is a unique circumstance found in our community given the previous City approvals and lawful, non-conforming status.  In addition, the City must weigh the provisions of the original CUP against what is permitted to be restricted as part of State and Federal law.

At the October 6, 2011 Planning Commission Meeting, action was tabled to get additional feedback from the City Attorney to better understand the City's ability to enforce the family member clause of the CUP.  The Planning Commission further reviewed the request on October 20, 2011.  There was considerable discussion regarding what should be the City's definition of 'family' and what the City would be able to enforce. 

The City Attorney provided a legal opinion on the matter, which is reflected in the attached memo to this case.  Essentially, the legal opinion provides applicable law and case law to review restrictions the City would be able to legally place on the Subject Property related to the request.  The City Attorney's interpretation of applicable case law essentially states that the City does not have sufficient authority to completely restrict unrelated persons from living together on the Subject Property.  However, the City Attorney does provide applicable case law to support the City's ability to limit the number of unrelated persons living on the Subject Property.  Next, the City Attorney's review shows that it does not appear that the City has sufficient authority to restrict the Property Owner to not collect rent for consideration.

Finally, the Applicant does operate a Home Occupation on the Subject Property. It appears that the only business activity that occurs on the Subject Property is a home office for mailing and billing purposes. The Applicant operates a sign fabrication and installation company called Lumen Signs. According to the applicant, all other activities other than the office occur at 4835 Lyndale Ave in Minneapolis. No non-resident employees nor vehicles or equipment related to the operation of Lumen Signs are located at the Subject Property. Based on this information, Staff would recommend that a Home Occupation Permit shall not be required.

As a separate request, the Applicant is also requesting that the City Council approve an eight (8) foot tall fence consisting of a solid stucco finish and two (2) foot concrete base.  City Code outlines acceptable fencing materials such as chain link, wood, wrought iron etc but also states that other materials may acceptable if approved by City Council prior to installation.  Typically, Staff requires that fences do not negatively impact existing drainage patterns, making the two (2) foot concrete base a concern.  However, the fence is proposed to be located with a five (5) setback and is not located within a drainage and utility easement.  The Applicant should ensure positive flow to the front of the Subject Property.

All costs associated with the application are the responsibility of the Applicant.

The Planning Commission recommended approval of the request based on on Findings of Fact and several caveats:

1. The fact that the previous property owner rented to unrelated persons, which was approved by a City Rental License.
2. The fact that the current property owner purchased the Subject Property with the understanding that the detached accessory apartment could be rented to unrelated persons.
3. The fact that the unique history of the Subject Property has created a situation not found in other areas of the City.
4. The fact that the inate conflicts were created by the City, and not solely by the current property owner.
5. Concern that limiting unrelated persons from renting the detached accessory apartment would violate State and Federal law.

Motion to adopt the resolution approving findings of fact.

-AND-

Motion to adopt the resolution approving the conditional use permit and request for stucco fence.

-OR-

Motion to deny the resolution approving the conditional use permit, based on findings of fact.