Zoning Board of Appeals decision on old Tires Plus property

Griff asked me to blog about this after reading the article in the Northfield News. At the risk of continuing to stir up a tempest in a teapot, I’m willing to take a stab at it, although I’m writing in rather a hurry, which will probably get me in trouble.

I have to start with the disclaimer that in writing this, I am not speaking for any other member of the ZBA.

Tuesday’s public hearing and discussion of this agenda item took something over an hour. Three people were present at the meeting: Applicant Jerry Anderson, City Councillor Jon Denison, and Jim Gleason.  City Planner Dan Olson prepared the staff report, Jerry Anderson made his appeal, Jon Denison spoke in favor of staff’s interpretation.

According to documents submitted by the applicant Jerry Anderson, among the possible uses he anticipated for the old Tires Plus site was something he called “garden center”, which included plant sales, lawn accessories, Christmas tree sales, bird seed, pet food, and home accessories.

The ordinance says that what is allowed in C-1 and C-2 is

“Commercial establishments of no more than 30,000 sq. ft. on the ground floor offering merchandise or services to the general public. Such establishments include but are not limited to the following:  a. Retail establishments such as antique stores, second hand goods stores, grocery stores, hardware stores, drugstores, department stores, clothing stores, furniture stores like lavitafurniture.com.au, restaurants, and on and off sale liquor establishments…

According to the existing ordinance, what is prohibited in C-1 and C-2 but allowed in C-3 is [partial list]:

3) Motor vehicle sales and service.
(4) Recreational equipment sales and service.
(5) Boat and trailer sales and service at Advantage Fleet.
(6) Auto/truck washing services.
(7) Farm implement sales and service.
(8) Lumberyards and construction material sales.
(9) Garden and landscaping sales and service including produce sales.

As the issue was framed in the staff report,

The applicant inquired as to whether “garden and landscaping sales and service including produce sales” is a Permitted Use within the C-2 district….It is noted that “garden and landscaping sales and service including produce sales” are not listed in either the C-1 or C-2 regulations as either Permitted (or Conditional) use. However, this specific use is listed as a Permitted Use in the Gateway Commercial district (C-3). Staff determined, therefore, that this specific use is not an allowed use in the C-2 zoning district.

I believe that the staff interpretation of our existing [sucky] ordinance is correct. However, what I believe is incorrect is the characterization of a small-scale retail operation that happens to sell plants in addition to bird seed, flower pots, and gifts as “garden and landscaping sales and service” on the scale of the other permitted uses listed as being allowed in the C-3 district but not C-1 or C-2.

The intent of the ordinance is to make a distinction between large-scale operations which may involved extensive vehicular traffic or heavy equipment, which should be located in the highway commercial district vs. downtown or downdown fringe, and smaller operations. Such sales on the scale defined by the Tires Plus site is entirely consistent with other retail sales and service uses in the downtown fringe (C-2) district.

I don’t have the exact wording of the resolution passed by the ZBA, but roughly paraphrased, it was the finding of the ZBA that the applicant’s proposed retail use was consistent in character and scale with other retail uses permitted in the C-2 district. As one commissioner said, “It doesn’t matter what it’s called, it matters what it is. You couldn’t put a sex shop downtown and call it “recreational equipment” just to get around the adult use ordinance.”

If you want to read the staff report prepared for the meeting, you can download it from here.

26 thoughts on “Zoning Board of Appeals decision on old Tires Plus property”

  1. Tracy –

    Let me be clear, I am asking this question as a private citizen, not as Executive Director of the NDDC, bass player of the New Moon Trio, or aging wanna-be of the DJJD 15K…

    …so Jerry Anderson, or his future renter, will be allowed to sell potted petunias from the now-vacant Tires Plus site, admittedly with the summer half over?

  2. Tracy,
    I’m confused… by this matter generally, but in particular by the seeming contradiction between your statement above that

    “I believe that the staff interpretation of our existing [sucky] ordinance is correct.”

    contrasted with your vote to reverse that interpretation.

    Thanks for any clarification that you can offer.

  3. Patrick,

    It’s my belief that staff interpreted the ordinance correctly – that large-scale “garden and landscaping sales and service” is allowed on the C-3 highway commercial district, but not in C-1 or C-2 (downtown and downtown fringe).

    It was the finding of the ZBA that the nature of what Jerry Anderson was proposing for the site did not qualify as the large-scale “garden and landscaping sales and service” as per the intent of the ordinance. What Jerry is proposing is the same sort of use that’s going on across the street at Econofoods, down the street at Ace Hardware, etc.

    I hope that helps.

  4. And one more clarification: The ZBA did not reverse staff’s interpretation of the ordinance per se; we issued a finding that the proposed use did not really fit the intent of ordinance’s meaning of “garden and landscaping sales and service”.

    It may have the same result, but there’s a difference.

  5. Thanks for your clarification, Tracy.

    Would you suggest clarifying the ‘sucky’ ordinance to better delineate the difference between businesses allowed and disallowed in each area? Is that something that the ZBA might propose? Or does the ZBA only deal with appeals, while a separate zoning committee or zoning board (distinct from the ZBA) would propose such changes?

    Thanks again.

  6. So Tracy, let me ask the question a different way: Jerry Anderson and/or his agent can proceed with the small-scale potted petunia sales a mere eight weeks after Mothers’ Day?

  7. I disagree Tracy…

    The plants that Econo and Ace bring in are temporary, one time sales items, and not their primary business function or sales mechanism. (primary business model)

    The function of the location and what the applicant is asking for is the PRIMARY revenue generator on a re-occurring basis, and that needs to be modeled against the ordinance.

    I do agree however, that all of the ordinances can be written to be more clear.

    I do not care what goes in there at this point, as long as something goes in there to remove the obvious blight. The location is currently an eyesore, but whatever goes in, needs to do so legally, and operate within the existing laws and ordinances of our community.

  8. Patrick, our entire land development code is undergoing a complete rewrite, even as we speak. This process has been in the active stage for almost a year now. If our new ordinances had been in place, it’s highly unlikely that this situation would ever have come before the ZBA.

    Ross, I’m still not exactly sure what your question is. Jerry Anderson was not seeking a temporary use permit.

    John, in response to your point, I believe that USE is USE. The City may have some liability if it allows outdoor sales of flower pots at Econo and Ace, but not allow them on the Tires Plus site.

    1. Tracy,John, etc: What it seems to me that you are ignoring, or not recognizing, is the wording of the ordinance which says”large scale”.
      As done on the Tires Plus site,the flowers as sold there were RETAIL,i.e. a product was purchased from a wholesaler, and resold to the public in the same way as any retail process ensues.

      The ordinance may be written in less than a clear manner; however the interpretation was clear: what’s good for the goose is not good for the gander(assuming Lee Lansing is the”gander”)

      And John, your concerns about the “blight” were certainly alleviated by the flower sales that were going on there, in contrast to the empty unattended space as the ‘city’ seems to prefer it; and from what Tracy has reported of attendees at the hearing, as one of our city councilors prefers to see it.

  9. The Nfld News changed their headline and story. They have a notice at the top of the story that says:

    CORRECTION – The headline and story below has been changed to reflect the Zoning Board of Appeals decision which was based on whether or not to allow small garden centers in the downtown business district.

    but they don’t indicate what was changed or why. The original headline:

    Lansing closing based on flawed interpretation, appeals board says

    now reads:

    Garden centers like Lansing’s now allowed

    I ran the two versions of the story through a comparison tool and here are the two versions of the first three paragraphs. Underlined is the new text, strike-through is the original text, black is unchanged:

    ===============

    NORTHFIELD City staff erred in their prohibition of The Zoning Board of Appeals Tuesday night overturned a city decision that disallowed embattled former Mayor Lee Lansing’s downtown Northfield garden center, the Zoning Board of Appeals decided Tuesday night.center.

    By a vote of 6-1, the board ruled that Lansing’s small-scale garden operation operations should be permitted in the C-2 (downtown fringe) district, overturning a code interpretation by city staff.

    Lansing had sold bedding plants, hanging baskets and seasonal merchandise at 600 Division St. S should be allowed in the C-2 district, overturning a code interpretation by city staff.

    Lansing had run the operation for nearly a year until the city said the property was not zoned for such a business. In May, police served a no-trespassing order on behalf of the bank that owns the property.

  10. Here’s the complete comparison between the original web version and the print version. In addition to the changes to the first three paragraphs, there are changes to the quotes from City Planner Dan Olson and Queen of the Triumvirate Tracy Davis, AKA as vice chair of the Planning Commission and ZBA member:

    =================

    NORTHFIELD City staff erred in their prohibition of The Zoning Board of Appeals Tuesday night overturned a city decision that disallowed embattled former Mayor Lee Lansing’s downtown Northfield garden center, the Zoning Board of Appeals decided Tuesday night.center.

    By a vote of 6-1, the board ruled that Lansing’s small-scale garden operation operations should be permitted in the C-2 (downtown fringe) district, overturning a code interpretation by city staff.

    Lansing had sold bedding plants, hanging baskets and seasonal merchandise at 600 Division St. S should be allowed in the C-2 district, overturning a code interpretation by city staff.

    Lansing had run the operation S. for nearly a year until the city said the property was not zoned for such a business. In May, police served a no-trespassing order on behalf of the bank that owns the property.

    Local entrepreneur Jerry Anderson said he has a purchase agreement in place for the property, and appealed to allow the business, which he said was shuttered after city officials told the bank that the property was being used in violation of city code.

    “Your interpretation was that a ‘garden center’ was allowed in a C-3, but not permitted in a C-2. I personally disagree with that interpretation. Retail should be retail,” Anderson wrote, in part, wrote in a letter requesting the appeal.

    City Planner Dan Olson said the lasting effect of the decision is still unclear.

    “I’m maintained that his interpretation was not sure if this was a major interpretation of our existing ordinance or not,” he said.flawed, but that the appeals board reached a different conclusion than his.

    Anderson said Wednesday that he expects to close on the sale in August, but that it’s too late in the year to reopen the flower shop and couldn’t say whether it would open in the spring.

    “There were I don’t know how many thousands of dollars lost there because they shut it down,” Anderson said.

    He plans to redevelop the property when the real estate market comes back, but said ventures like Lansing’s would help pay property taxes in the meantime.

    Tracy Davis, Planning Commission vice chair and an appeals board member who voted to allow the business, said the business was “mischaracterized” as a larger operation that wouldn’t be a good fit for the area.

    “The finding was that city staff made an error in their characterization of what the business was,” she said.

    She added that Lansing’s involvement in the site was unclear to her or other members until after the meeting.

    “I’m hoping that whatever the outcome is, if there are problems with it later on due to the personalities involved the city will just have to deal with the property owner,” Davis said. “I think it was something that started with a smallish misunderstanding and because of the personalities involved got kind of convoluted.”

    Appeals Board Neither Lansing nor appeals board member James Herreid, who cast the lone dissenting vote, did not immediately return a message returned calls seeking comment.

    comment this week.

  11. Thanks for the comparisons, Griff. What’s your understanding of best practices in situations like this? Isn’t it okay to correct errors or make clarifications? Or should they have followed up with a new, different post and make a note on the old one?

  12. Aren’t there two explanations for why Lansing was evicted? Earlier accounts say he was evicted for trespassing. Now it appears the city asked the bank to evict Lansing because of a zoning code violation.

    Did the city issue a zoning code violation to Lansing? If not, why not? Since when is a bank supposed to enforce Northfield’s zoning ordinances?

    I don’t believe the whole story is in the article(s).

    1. Curt: the WHOLE STORY is NOT in the article; and when various people tried to tell it back in April , it was just said to be the “same-old same-old”…

      Jim Hammerand seemed to be a good reporter for a small local paper when he was writing for the Faribault daily; I wouldn’t be so quick to place the blame there, or on a “transition”.

      People need to ask why does the NFNews have so much ‘skin’ in this ‘game’?

  13. Editorial in the Wed. Nfld News: This shows the need for new regulations.

    City staff notified the bank, which
    took ownership of the site, that it
    was considering action against the
    bank because Lansing’s shop, the city
    believed, was operating illegally. The
    bank then asked police to have the
    merchandise and the shop removed,
    saying Lansing, as operator, was
    trespassing on its property.

  14. Does anyone think it is extreme for the “city” to consider “action against the bank” because the city feels (erroneously, it turns out) that one of its ordinances is being violated?

    Could that be considered that the “city” was ‘threatening’ the bank?

    What person was acting as the “city”? The city attorney?

  15. I finally, after returning from vacation, had a chance to listen to the podcast about the ZBA decision.
    The ZBA members were correct in adamantly refusing to base their decision on the succession of events involving personalities; only to consider the relevant language in the zoning ordinances.

    But who should consider the full chain of events?
    Who should consider the full chain of events and the relevancy of the specific persons who were players in that story?

    Who should consider the shutting down of a business, the obstruction of a contract or a pending business deal, the interruption of earning income, the cessation of the possibility of earning income , the pending purchase of the property for a specific use, and the intervention of a council member playing watchdog, and city staff calling a bank?

    The ZBA’s decision as to the size and nature of the specific business being the determining factor, that essentially was nothing but retail, was not the infamous”rocket science”, but a decision that many, many people in town had already thoughtfully arrived at.

    Why did it take a decision from a board, the ZBA, a decision which cannot be appealed to the council, but can only be appealed to the courts, to come to this point?

    Is anyone surprised given the not-to-be-talked-about personality and inter-governmental adversarial positioning, that it took a group of citizen volunteers to straighten it out? And I might add, that the final say of the ZBA, in that its decision can only be appealed to a court, made any further intervention by city hall most inappropriate, and indeed of obvious intent.

    There can be no reasonable answer except one that involves the personality struggles for which our city hall has become so famous … should I say infamous? … and which have in their entirety cost so much unrest and actual dollars.

    Congratulations to a citizen board for being able to look at an interpretation without prejudice, or in more legal terms, ‘without fear or favor’.

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