The URL can be used to link to this page

00-892R m �� - s�.p-�� , �oGo Council Fi1e # O Q p �• Green Sheet # /03 � G. ( RESOLUTION CITY OF SA1NT PAUL, M Presented By Referred To �� Committee: Date `E-4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 WHEREAS, Chapter 293 of the Saint Paul Legislative Code was enacted to regulate the subject of noise in the City of Saint Paul; and WHEREAS, §293.11 provides for the granting of variances from the sound level limitations contained in §293.09, upon a finding by the City Council that full compliance with Chapter 293 would constitute an unreasonable hardship on an applicant, other persons or on the community; and WHEREAS, Wild Tymes, represented by John McDonough, owner, who has been designated as the responsible person on the application, has applied for a variance to allow live music at 33 West 7 Place, on September 29 and 30 and October 1, 2000 for a block party event to celebrate the opening of Minnesota Wild Hockey; and WHEREAS, applicant is seeking a variance for the hours of 12:00 p.m.(noon) to 12:00 a.m.(midnight) on September 29 and 30 and October 1, 2000; and WHEREAS, if applicant is not granted a variance it will not be able to present the live music; and WHEREAS, the Office of License, Inspections, and Environmental Protection has reviewed the application and has made recommendations regarding conditions for the variance; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul hereby grants a variance to Wild Tymes, subject to the following conditions: 1) The variance shall be for the hours of 12:00 p.m. to 12:00 a.m. on September 29 and 30 and- F�.choti�s o- � ia,o�p,,„. -! 9:uopm. � rOctober �.� 2�0�. 2) All electronically powered equipment used in conjunction with the event shall not exceed 90 dBA from noon until midnight on each of the dates as measured at the sound mix or fifty (50) feet from the sound board, whichever is closer. . 3) The applicant shall provide personnel and equipment who shall provide continuous sound level monitoring between noon and midnight on all dates to ensure compliance with Condition #2- 4) Al1 electronically powered equipment, PA systems, loudspeakers or similar devices shall be turned off no later than 12:00 a.m. on September 29 and 30 and October 1, 2�00. Q FURTHER RESOLVED, that any violation of the conditions set forth above on the September 29, 2000 date may result in revocation of the grant of a variance for the September 30 and October 1, 2000, dates, and any violation of the conditions set forth above during the September 30, 2000 date may also result in revocation of the grant of a variance for the October 1, 2000 date, in addition to any criminal citation which might issue. Requested by Department of: By: Approved by Mayor_ Oate r , , �f�(�� ,; _, Form Approved by City Attorney Byc Approved b} Mayor for Submission to Council ✓ ,/ By / l�� ' � �4 By: Adopted by Council: Date \ n �a`�, �- �� Adoptiqry Certified by Council Secretary OFFYCE oF LIEP Date: 9/15I2000 GRE EN S HE E T N 103761 °a- ax'k R. IC3i8ersatt 266-9147 $p�T�r DIRECfOR xxr-mmrciL � ITY ATTORNEY ITY CLE[lK Y�!!R ust be on Council Agenda by: '°°° ��ET az�crox IN. & MGT- SVC. DZR. � Se tember 27, 2000 3 mx cox assisraarr� OTAL # OF SIGNATURS PAGBS 1 (CLIP ALL LOCATIONS FOR SIGNATURE) CTION REQUESTED: COMMFNDATIONS: APPROVE (A) OR REJECP (R) SRSONAL SHR4ICB CONTRAClS M[75T ANSi18R T88 POLLOWING: PLANNING COMLtISSION CIVIL SERVICE COMMISSION 1. Has the person/firm e�er urorked under a contract for this department? CTH COF4IITTEE HUSINBSS REVIEW C1�UNCIL Y&S NO STA£F Has [his person/Piim ¢ver been a City employee? DISTRICT COU&T Y&S NO Does this person/firm possess a skill not normally possessed by any UPPORTS WHICH COIINCIL OHJEGTIV&? Curient City emplOyee? YES NO laia all YSS anewera oa a separate sheet and attach. INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why): ild Tymes Sports Club has requested a sound level variance for musicians and sound system concerts at their block parties at 33 7th Place West. The parties are scheduled on September 29 & 30, and October l, 2000 from 12:�0 noon to 12:00 midnight. VANTAGES IF APPROVED: ill place conditions that will limit the sound impact in surrounding residential and commercial areas. ISADVANTAGES IF APPROVED: Persons living or working near 33 7th Place W. will be able to hear the sounds from the musicians and sound system. ISADVANTAGES IF NOT APPROVED: he sound level impact on surrounding residential and commercial areas could e greater with no conditions. pplicant may not be able to present the musicians and sound system without exceeding the sound level limitations contained in 293.09. OTAL AMOUNT OF TRANSACTION $ 450 COST/REVENUE BUDGETED YES NO FUNDING SOURCE 320-33350 ACTIVITY NUMBER 0141 FINANCIAL INFORMl1TION: (EXPLAIN) For staff monitoring overtime. R�83�arrh��t«:r S�P � � ?U�� SEP-14-2000 14=30 CITY OF ST PRUL LIEP CITY OF SATI�T PAUL Ncrm Coleman, Mayor September 14, 2000 TO: FROM: SUBJECT: 61Z 266 9124 P.02 OFFICE OF L[CENSE, INSPECT(ONS AND EPNtRONMENYAL PR07ECTJON Q � �� Robert Krssfv. Direcror IAWRY PkOFESSIONAL Tslspha+e� 6S!-?6c�9090 BUILUQJG Fctsimik: 65/d669099 Suue300 651-?6Q9f2a 350 Sc Pua Ssreu Sat'.c Pmrl. Minnesoto SS(02-I510 Nancy A.nderson, Council Tnvesrigation & Reseazch Room 310, City Hail Mazk Kaisersatt �2� Office of License, Inspections and Environmental Protecrion Sound T.evel Vatiance .Amplified Live Music Attached is a sound level variance application from John McDonough, Owner, Wild Tymes, to allow musicians and a sound system during their block party. A variance is requested from 12:00 noon to 12:00 midnight on September 24 & 30, and October 1, 2000, Please have this item placed on the Counci] agenda for September 27, 2000. If you have any questions, feel &ee to contact me at 266-9147. Public Hearing Notice and Resolution ta follow. i�i�,'�. AttachmenfS c: file TOTAL P.02 STATE t1F MINNESOTA RECEf�JE� �PR 2 - 200� �I?Y �LERK ��-�9� ❑ Supreme Court � Court Of Appeais TRANSCRIPT OF JUDGMENT i do hereby certity that the toregoing is a ful! and t�ue copy of the Entry o/ Judgment in the cause therein entitled, as appears from the original record in my office; that l have carefu�ly compared the within copy with said original a�d that the same is a correct transcript therefrom. Witness my signature at the �� in the City of St. Pau� � �: Dated By: � � �/�_ Assistant Clerk STATE OF MINNESOTA Oak Grove Properties, Inc., Relator, �S. City of St. Paul, Respondent. ❑ Supreme Cburt � � Court Of Appeals JUDGMENT CX-00-1838 Appellate Court Case Number •• :• Trial Court Case Number Pursuant to an order of Cou�t heretofo�e duly made and entered in this cause it is determined and adJudged thatthe decision of the City Council for the City of St. Paul dated September 27, 2000 6e and the same hereby is affirmed in accordance with unpublished opiniona and thaf judgment be enfe�ed accordingly. A certified copy of the entry of judgment d e Court's decision is herein transmitted and made parf of the remitfitur. March 29, 2001 �� ' Dated and signed: FOR TNE COURT By: ' Dated Assistant Cferk Form P.PL-310A �o-�q� This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3(2�00). STATE OF 1VIINNESOTA IN COURT OF APPEALS CX-00-1838 RECElVE(3 APR 2 � 2Q01 urTY �L�'f? Oak Grove Properties, Inc., Relator, vs. City of St. Paui, Respondent. Filed February 20, 2001 Affirmed Harten, Judge City of St. Paul Council City Council File No. 00-892 Frank J. Walz, Cuyn Scherb Glover, Robert D. Maher, Michelle Bergholz Frazier, Best & Flanagan, L.L.P., 4000 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4331 (for appellant) Clayton M. Robinson, St. Paul City Attorney, Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, MN 55102 (for respondent) Considered and decided by Harten, Presiding Judge, Willis, Judge, and Hanson, 7udge. UNPUBLISHED OPINION I�ARTEN, Judge Respondent St. Paul Ciry Council issued a bingo hall license for a proposed bingo hall to be located less than two miles from an existing bingo ball. Respondent ��-�qa waived the requirement that there be a miuimum of two miles between bingo halls, based on a finding that the new bingo hall would provide economic development benefits without significant negative impacts on residential or commercial uses. Relator, owner of the existing bingo hall, challenges the city's waiver decision. Because we conclude that the decision was supported by substantial evidence, we F�[y� FACTS Relator Oak Grove Properties (Oak Grove} has owned and operated a bingo hall at the intersection of Universiry and Lexington Avenues in St. Paul for rune years under licenses issued by the Minnesota Gambling Control Board and respondent City of St. Paul (St. Paul). During that time, the same four charitable organizations have sponsored bingo at Oak Grove's bingo hall. The bingo hall license is separate and distinct from the license obtained by the charities to operate in the hall. On August 3, 2000, pursuant to Chapter 403 of the St. Paul, Minn., Code of Ordinances, RK Midway LLC, d/bta Midway Center Bingo (Midway), applied to St. Paul for a license to operate a bingo hall at the intersection of University and Snelling Avenues, less than two miles from Oak Grove's Lexington site. The four charities currently conducting charitable bingo at Oak Grove's bingo hall intend to move to the new bingo hall. St. Paul, Minn., Code of Ordinances § 403.05 provides, in pertinent part: (a) Minirnum distance established. A minimum distance of two (2) miles 2 �� •• . shall be required between buildings licensed for bingo hails under the provisions of tfus chapter. " '� ''` (b) Waiver of distance requirement. The miuimum distance requirement herein imposed may, to promote responsible ownership and accountability, be waived by the council upon: a finding by the council that the location of the proposed site would provide economic development benefits without significant negative impacts on residential or commercial uses; provided, however, that (i) the waiver could allow no more than one licensed bingo hall within two miles of another licensed bingo hall, and (2) such a waiver could not be granted to the fee owner of a� existing, licensed bingo hall within a two [mile] radius. Pursuant to the procedures of St. Paul, Minn., Code of Ordinances § 310.04(d)(1), upon receipt of Midway's application, the O�ce of License, Inspection, and Environmental Protection sent notice to the neighborhood district council for the area of the new site advising it of the right to object to issuance of the license. On September 18, 2000, after a legislative hearing, the legislative hearing officer recommended that the license be issued to Midway and noted that the request far a waiver of the minimum distance requirement would be the subject of a public hearing before the ciry council. On September 27, 2000, the St. Paul Ciry Council (the city council) held a public hearing. After testimony from opponents of the waiver, including Oak Grove, and proponents of the waiver, the city council adopted a resolution fmding that the waiver requirements of § 403.05 had been met, granted a waiver of the minimum distance requirement, and issued a bingo hall license to Midway. Oak Grove petitioned for writ of certiorari seeking reversal of the city council's action. 3 �a-�q 9 DECISION A city council's decision may be modified or reversed if it is unsupported by substantiai evidence in view of the entire record as submitted ar arbitrary or capricious. Substanrial evidence is such relevant evidence as a reasonable niiud might accept as adequate to support a conclusion or more than a scintilla of evidence. Routine municipal decisions should be set aside only in those rare instances where the decision lacks any rational basis, and a reviewing court must exercise restraint and defer to the ciry's decision. City of Mankato v, ll�ahoney, 542 N.W.2d 689, 691-92 (Minn. App. 1996) (quotations and citations omitted). The courts "determine whether the municipality's action in the particular case was reasonable." UanLandschoot v. City of Mendota Heights, 33b N.W.2d 503, 508 (Minn. 1983). The fact that a court reviewing the action of a municipal body may have arrived at a different conclusion, had it been a member of the body, does not invalidate the judgment of the city officials if they acted in good faith and within the broad discretion accarded them by statutes and the relevant ordinances. Id. at 509 (citation omitted). "In this state, a ciry has wide discretion in dealing with matters of local importance." Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 225, 125 N.W2d 846, 850 (1964) (citation omitted). To waive the minunum distance requirement, the ciry council had to make a reasonabie finding, supported by the evidence, "that rhe location of the proposed site would provide economic development benefits without significant negative impacts on residential or commercial uses." St. Paul, Minn., Code of Ordinances § 403.05. :� �1 �•� s 1. Economic Development Benefits Oak Grove contends that there is no evidence that the location of the proposed bingo site would provide economic development benefits, and that the grant of a waiver simply transfers e�sting economic benefits to the new location. However, the testimony given at the public hearing provides substantial evidence that the new location would provide economic development benefits. Robert Kessler, Director of License, Inspection, and Environmental Protection ("L.I.E.P."), testified: [L]icense staff recommends the approval of the application at the Midway Shopping Center because we find that the location is consistent with the intent of the proposed waiver contained 'm CouncIl File 00314. L.I.E.P. staff, in consultation with David Gontarek of the Deparnnent of Planning and Economic Development, �nds that the new bingo hall wiil have no adverse impact on the adjacent neighborhood or the commercial businesses. The location of the proposed bingo hall is ideal in that it will generate economic activity in a heretofore vacant and under-utilized area of the shopping center. *** We urge your approval of the application of the proposed legislation that allows for ttie waiver. Oak Grove's counsel testified that, if the ciry council granted this waiver, Oak Grove would no longer be able to operate a bingo faciliry at the Lexington site, stating that "this area simply can't support two bingo halls," and that the waiver would "simply move an existing economic benefit down the block." Oak Grove's counsel further testified that Oak Grove's space at Lexington and University was "admittedly under-utilized" and that Oak Grove had been negotiating with Home Depot for three years to open a new store on this property. If this happened, Oak Grove would have to 5 �i •� � , find a different site for its bingo license. Don Ludemann, President of the Snelling-Hamline Community Council, tesrified that he was at the public hearing to "speak against this waiver, or rather for the waiver with certain conditions." He tesrified about concerns regarding an "image problem," safety, lighting, landscaping, and parking. He agreed with Oak Grove that there would be "no net economic benefit," but testified that "there might be a secondary benefit," in that "people who go to play bingo will also shop at the Rainbow or the Walgreens or have dinner at the nearby buffet." Ludemann clarified that the neighborhood was concerned about "people who might prey upon" the bingo hall patrons. He was assured that off-dury police officers would provide securiry during the bingo sessions. Counsel for Midway pointed out in her testimony that, contrary Co Oak Grove's assertion that the ordinance calls for "special circumstances," the ordinance "talks about promoting responsible ownership and accountability." She testified that the four charities concluded that the location at "Lexington wasn't meeting their needs or their customers' needs for a feeling of security, safety, and far the shopping that the customers wanted," and that these four charities "have now signed leases and are ready to move into the space at Midway Center." She also testified that the first economic development benefit provided by the new location would be that Midway would invest over $700,000 to remodel and bring up to code the 10,000 square feet of space that had been vacant and untenable for 20 years. Midway's counsel further testified that the new locarion would bring about �7 Yl �• . 15,000 people a month into an area where "there's Cub Foods, there's Rainbow, there's Herberger's, there's Kmart," and that this would bring added economic benefit. Most of the bingo patrons are senior citizens who "make a day of it," and in the Midway Shopging Center they could spend money having lunch, buying groceries, and buying pharmaceuticals. There is not "a similar economic engine on Lexington." Ellen Waters, President of the Midway Chamber of Commerce, testified in support of the waiver because it was in the best interests of the "whole Midway business communiry." She stated that "the spin-off development in terms of shoppers and increased economic activity in that area will bene�it all of the surrounding stores *��=» Finally, Barbara Kale, Cfi0 of Midway Training Services ("MTS"), a chariry that serves developmentally disabled adults and is one of the four charities relying on bingo profits, testified: For about the last three years we were told that we were going to be moved to another location because the shopping center was going to be sold to Home Depot. Sometimes, we were going to be moved in three months, sometnnes six montks, sometnnes not at all. During this time, the other businesses closed or moved and the bingo hall itself was deteriorating rapidly. Presently, the condition is deplorable. Profits for MTS and the other charities declined significantly. In 1999, the MTS profits were 1!3 of what they were in 1998. The influx of money to unprove the premises where the new bingo hall will be located is an economic benefit. See Port Auth. v. Fisher, 275 Minn. 157, 166, 145 N.W.2d 560, 567-68 (1966) (when productive use of property is achieved, economic 7 �, . i I ` benefits to the city and the people will ensue). Furthermore, the record indicates that there are opportunities for additional economic benefits at the new locarion, in the fozm of increased profits for the charities, more patrons, and a location which permits those patrons to spend money at nearby seores and restaurants. Although St. Pau1, Minn., Code of Ordinances § 403.05 contains no defuution of "economic development benefits," in determining whether there is a public purpose in public financing of small business expansion, the Minnesota Supreme Court stated: In addition to the direct benefits derived from public financing of small business expansion—increased tax base and employment—there are favorable secondary economic effects. Jobs are created in businesses not directly financed because of the increased demand for goods and services by the new employees of the financed business. Minnesotcz Energy & Econ. Dev. Auth. v. Printy, 351 N.W.2d 319, 334 (Minn. 1984). The same theory of "favorable secondary economic effects" can be applied to this situation. St. Paul asserts: In addition to the initial bene�it of construction on the new site, which involves money spent on materials, labor, permits, and landscaping, and the rent and taxes which will be paid, there will be a ripple effect seen in spending at the ne9ghboring businesses by patrons of the new bingo hall. Based on all af the evidence, we conclude that the city council reasonably found that the location of Che proposed bingo site would provide economic development benefits. 2. No 5ignificant Negative Impacts on Residential or Commercial Uses Oak Grove contends that, even if the ciry council reasonably found that the � � �� .`.` location of the proposed bingo site would provide economic development benefits, any bene�it "comes at the expense of Oak Grove's established business," and thus fails to meet the second half of the waiver requirement addressing significant negative impacts on residential or commercial uses. Oak Grove's assertion that granting a waiver will cause it to close its bingo hall is based on the fact that the charities now renting from Oak Grove have signed leases with Midway. But testimony establishes that the charities are unwilling to remain at Oak Grove's bingo hall because the property is deteriorating, there are no nearby shops and restaurants, pro�ts have sharply declined, and any lease is uncertain due to Oak Grove's ongoing negotiations with Home Depot. The fact that Oak Grove's own actions make it unattractive for charities to rent space at its bingo hali does not establish that charities are unwilling to remain there merely because of the proximity of another bingo hall. Oak Grove cites North Mem'l Med. Ctr. v. Minnesota Dept. of Headth, 423 N.W.2d 737 (Minn. App. 1988), to support its claim that the ciry council's decision was arbitrary and capricious because the waiver did not satisfy the requirements of § 403.05. However, North Mem'1 Med. Ctr, is distinguishable; it held that a license to extend the service area for relator's ambulance services was properly denied where the Commissioner of Health found that the license would risk duplication of services and deleterious competition. Id. at 739-40. The court cited Twin Ports Convalescent, Inc. v. Minnesota State Bd. of Health, 257 N.W.2d 343, 348 (Minn. 1977), in fmding that the legislative intent of Minn. Stat. § 144.802 was "to protect the public welfare against E'' t �� • � deleterious competirion in the ambulance services field." North Mem'l Med_ Ctr., 423 N.W.2d at 739. The provision embodies a legislative deteruiination that t�e ambulance service business is one in which the public welfare is not promoted by free enterprise. Ambulance service is essential to a communiry. Id.; see also Troje v. City Council, 310 Minn. 183, 245 N.W2d 596 (1976) (ciry's denial of garbage hauler's license not arbitrary where city's interest in granting only one license was proper because additional license would increase risks to public safety and cause increase in rates or decline in public service). No such interests exist here to protect a business from legitunate competition; bingo halls are not essential services. The city ordinance does not provide that the city council may waive the distance requirement only if the existing, licensed bingo hall's profits are protected. Rather, the ordinance provides that "[t]he minimum distance requirement herein imposed may, to promote responsible ownership and accountability, be waived by the council *�` *." St. Paul, Minn., Code of Ordinances § 403.05(b) (emphasis added). Oak Grove also relies on Zylka v. City of Ctystal, 283 Minn. 192, 199, 167 N.W.2d 45, 51 (19b9) (ciry's decision to deny application for a special use permit arbitrary because unaccompanied by written findings specifying reason for denial, no city official made contemporaneous oral statement of reason, and insufficient evidence to support court fmding that permit would adversely affect the public health or safery or general welfare). But here, the record contains substantial testimony supporting the 1Q � � � do-89� city council's grant of a waiver. Contrary to Oak Grove's assertions, we conclude that the ciry council complied with St. Paul, Minn., Code of Ordinances § 403.05, finding that the two requirements necessary to grant a waiver were satisfied. The decision to grant a waiver to Midway was supported by substantial evidence, was not an enor of law, and was not arbitrary or capricious. Accordingly, we affum respondent's decision. Affirmed. Dated: �„��B/�'!/�1dY ��D/ SYate of Minnesota, Gourtof Appeals i hereby Certifiy�haiihe foregoing instru- merrt is atrue and correct copy ofthe o;iginal as the same appears on recor_d , i , ni� myofficethis '"�'� dayof�3- 20�L �� Asst Ueputy Cierk 11 R m �� - s�.p-�� , �oGo Council Fi1e # O Q p �• Green Sheet # /03 � G. ( RESOLUTION CITY OF SA1NT PAUL, M Presented By Referred To �� Committee: Date `E-4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 WHEREAS, Chapter 293 of the Saint Paul Legislative Code was enacted to regulate the subject of noise in the City of Saint Paul; and WHEREAS, §293.11 provides for the granting of variances from the sound level limitations contained in §293.09, upon a finding by the City Council that full compliance with Chapter 293 would constitute an unreasonable hardship on an applicant, other persons or on the community; and WHEREAS, Wild Tymes, represented by John McDonough, owner, who has been designated as the responsible person on the application, has applied for a variance to allow live music at 33 West 7 Place, on September 29 and 30 and October 1, 2000 for a block party event to celebrate the opening of Minnesota Wild Hockey; and WHEREAS, applicant is seeking a variance for the hours of 12:00 p.m.(noon) to 12:00 a.m.(midnight) on September 29 and 30 and October 1, 2000; and WHEREAS, if applicant is not granted a variance it will not be able to present the live music; and WHEREAS, the Office of License, Inspections, and Environmental Protection has reviewed the application and has made recommendations regarding conditions for the variance; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul hereby grants a variance to Wild Tymes, subject to the following conditions: 1) The variance shall be for the hours of 12:00 p.m. to 12:00 a.m. on September 29 and 30 and- F�.choti�s o- � ia,o�p,,„. -! 9:uopm. � rOctober �.� 2�0�. 2) All electronically powered equipment used in conjunction with the event shall not exceed 90 dBA from noon until midnight on each of the dates as measured at the sound mix or fifty (50) feet from the sound board, whichever is closer. . 3) The applicant shall provide personnel and equipment who shall provide continuous sound level monitoring between noon and midnight on all dates to ensure compliance with Condition #2- 4) Al1 electronically powered equipment, PA systems, loudspeakers or similar devices shall be turned off no later than 12:00 a.m. on September 29 and 30 and October 1, 2�00. Q FURTHER RESOLVED, that any violation of the conditions set forth above on the September 29, 2000 date may result in revocation of the grant of a variance for the September 30 and October 1, 2000, dates, and any violation of the conditions set forth above during the September 30, 2000 date may also result in revocation of the grant of a variance for the October 1, 2000 date, in addition to any criminal citation which might issue. Requested by Department of: By: Approved by Mayor_ Oate r , , �f�(�� ,; _, Form Approved by City Attorney Byc Approved b} Mayor for Submission to Council ✓ ,/ By / l�� ' � �4 By: Adopted by Council: Date \ n �a`�, �- �� Adoptiqry Certified by Council Secretary OFFYCE oF LIEP Date: 9/15I2000 GRE EN S HE E T N 103761 °a- ax'k R. IC3i8ersatt 266-9147 $p�T�r DIRECfOR xxr-mmrciL � ITY ATTORNEY ITY CLE[lK Y�!!R ust be on Council Agenda by: '°°° ��ET az�crox IN. & MGT- SVC. DZR. � Se tember 27, 2000 3 mx cox assisraarr� OTAL # OF SIGNATURS PAGBS 1 (CLIP ALL LOCATIONS FOR SIGNATURE) CTION REQUESTED: COMMFNDATIONS: APPROVE (A) OR REJECP (R) SRSONAL SHR4ICB CONTRAClS M[75T ANSi18R T88 POLLOWING: PLANNING COMLtISSION CIVIL SERVICE COMMISSION 1. Has the person/firm e�er urorked under a contract for this department? CTH COF4IITTEE HUSINBSS REVIEW C1�UNCIL Y&S NO STA£F Has [his person/Piim ¢ver been a City employee? DISTRICT COU&T Y&S NO Does this person/firm possess a skill not normally possessed by any UPPORTS WHICH COIINCIL OHJEGTIV&? Curient City emplOyee? YES NO laia all YSS anewera oa a separate sheet and attach. INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why): ild Tymes Sports Club has requested a sound level variance for musicians and sound system concerts at their block parties at 33 7th Place West. The parties are scheduled on September 29 & 30, and October l, 2000 from 12:�0 noon to 12:00 midnight. VANTAGES IF APPROVED: ill place conditions that will limit the sound impact in surrounding residential and commercial areas. ISADVANTAGES IF APPROVED: Persons living or working near 33 7th Place W. will be able to hear the sounds from the musicians and sound system. ISADVANTAGES IF NOT APPROVED: he sound level impact on surrounding residential and commercial areas could e greater with no conditions. pplicant may not be able to present the musicians and sound system without exceeding the sound level limitations contained in 293.09. OTAL AMOUNT OF TRANSACTION $ 450 COST/REVENUE BUDGETED YES NO FUNDING SOURCE 320-33350 ACTIVITY NUMBER 0141 FINANCIAL INFORMl1TION: (EXPLAIN) For staff monitoring overtime. R�83�arrh��t«:r S�P � � ?U�� SEP-14-2000 14=30 CITY OF ST PRUL LIEP CITY OF SATI�T PAUL Ncrm Coleman, Mayor September 14, 2000 TO: FROM: SUBJECT: 61Z 266 9124 P.02 OFFICE OF L[CENSE, INSPECT(ONS AND EPNtRONMENYAL PR07ECTJON Q � �� Robert Krssfv. Direcror IAWRY PkOFESSIONAL Tslspha+e� 6S!-?6c�9090 BUILUQJG Fctsimik: 65/d669099 Suue300 651-?6Q9f2a 350 Sc Pua Ssreu Sat'.c Pmrl. Minnesoto SS(02-I510 Nancy A.nderson, Council Tnvesrigation & Reseazch Room 310, City Hail Mazk Kaisersatt �2� Office of License, Inspections and Environmental Protecrion Sound T.evel Vatiance .Amplified Live Music Attached is a sound level variance application from John McDonough, Owner, Wild Tymes, to allow musicians and a sound system during their block party. A variance is requested from 12:00 noon to 12:00 midnight on September 24 & 30, and October 1, 2000, Please have this item placed on the Counci] agenda for September 27, 2000. If you have any questions, feel &ee to contact me at 266-9147. Public Hearing Notice and Resolution ta follow. i�i�,'�. AttachmenfS c: file TOTAL P.02 STATE t1F MINNESOTA RECEf�JE� �PR 2 - 200� �I?Y �LERK ��-�9� ❑ Supreme Court � Court Of Appeais TRANSCRIPT OF JUDGMENT i do hereby certity that the toregoing is a ful! and t�ue copy of the Entry o/ Judgment in the cause therein entitled, as appears from the original record in my office; that l have carefu�ly compared the within copy with said original a�d that the same is a correct transcript therefrom. Witness my signature at the �� in the City of St. Pau� � �: Dated By: � � �/�_ Assistant Clerk STATE OF MINNESOTA Oak Grove Properties, Inc., Relator, �S. City of St. Paul, Respondent. ❑ Supreme Cburt � � Court Of Appeals JUDGMENT CX-00-1838 Appellate Court Case Number •• :• Trial Court Case Number Pursuant to an order of Cou�t heretofo�e duly made and entered in this cause it is determined and adJudged thatthe decision of the City Council for the City of St. Paul dated September 27, 2000 6e and the same hereby is affirmed in accordance with unpublished opiniona and thaf judgment be enfe�ed accordingly. A certified copy of the entry of judgment d e Court's decision is herein transmitted and made parf of the remitfitur. March 29, 2001 �� ' Dated and signed: FOR TNE COURT By: ' Dated Assistant Cferk Form P.PL-310A �o-�q� This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3(2�00). STATE OF 1VIINNESOTA IN COURT OF APPEALS CX-00-1838 RECElVE(3 APR 2 � 2Q01 urTY �L�'f? Oak Grove Properties, Inc., Relator, vs. City of St. Paui, Respondent. Filed February 20, 2001 Affirmed Harten, Judge City of St. Paul Council City Council File No. 00-892 Frank J. Walz, Cuyn Scherb Glover, Robert D. Maher, Michelle Bergholz Frazier, Best & Flanagan, L.L.P., 4000 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4331 (for appellant) Clayton M. Robinson, St. Paul City Attorney, Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, MN 55102 (for respondent) Considered and decided by Harten, Presiding Judge, Willis, Judge, and Hanson, 7udge. UNPUBLISHED OPINION I�ARTEN, Judge Respondent St. Paul Ciry Council issued a bingo hall license for a proposed bingo hall to be located less than two miles from an existing bingo ball. Respondent ��-�qa waived the requirement that there be a miuimum of two miles between bingo halls, based on a finding that the new bingo hall would provide economic development benefits without significant negative impacts on residential or commercial uses. Relator, owner of the existing bingo hall, challenges the city's waiver decision. Because we conclude that the decision was supported by substantial evidence, we F�[y� FACTS Relator Oak Grove Properties (Oak Grove} has owned and operated a bingo hall at the intersection of Universiry and Lexington Avenues in St. Paul for rune years under licenses issued by the Minnesota Gambling Control Board and respondent City of St. Paul (St. Paul). During that time, the same four charitable organizations have sponsored bingo at Oak Grove's bingo hall. The bingo hall license is separate and distinct from the license obtained by the charities to operate in the hall. On August 3, 2000, pursuant to Chapter 403 of the St. Paul, Minn., Code of Ordinances, RK Midway LLC, d/bta Midway Center Bingo (Midway), applied to St. Paul for a license to operate a bingo hall at the intersection of University and Snelling Avenues, less than two miles from Oak Grove's Lexington site. The four charities currently conducting charitable bingo at Oak Grove's bingo hall intend to move to the new bingo hall. St. Paul, Minn., Code of Ordinances § 403.05 provides, in pertinent part: (a) Minirnum distance established. A minimum distance of two (2) miles 2 �� •• . shall be required between buildings licensed for bingo hails under the provisions of tfus chapter. " '� ''` (b) Waiver of distance requirement. The miuimum distance requirement herein imposed may, to promote responsible ownership and accountability, be waived by the council upon: a finding by the council that the location of the proposed site would provide economic development benefits without significant negative impacts on residential or commercial uses; provided, however, that (i) the waiver could allow no more than one licensed bingo hall within two miles of another licensed bingo hall, and (2) such a waiver could not be granted to the fee owner of a� existing, licensed bingo hall within a two [mile] radius. Pursuant to the procedures of St. Paul, Minn., Code of Ordinances § 310.04(d)(1), upon receipt of Midway's application, the O�ce of License, Inspection, and Environmental Protection sent notice to the neighborhood district council for the area of the new site advising it of the right to object to issuance of the license. On September 18, 2000, after a legislative hearing, the legislative hearing officer recommended that the license be issued to Midway and noted that the request far a waiver of the minimum distance requirement would be the subject of a public hearing before the ciry council. On September 27, 2000, the St. Paul Ciry Council (the city council) held a public hearing. After testimony from opponents of the waiver, including Oak Grove, and proponents of the waiver, the city council adopted a resolution fmding that the waiver requirements of § 403.05 had been met, granted a waiver of the minimum distance requirement, and issued a bingo hall license to Midway. Oak Grove petitioned for writ of certiorari seeking reversal of the city council's action. 3 �a-�q 9 DECISION A city council's decision may be modified or reversed if it is unsupported by substantiai evidence in view of the entire record as submitted ar arbitrary or capricious. Substanrial evidence is such relevant evidence as a reasonable niiud might accept as adequate to support a conclusion or more than a scintilla of evidence. Routine municipal decisions should be set aside only in those rare instances where the decision lacks any rational basis, and a reviewing court must exercise restraint and defer to the ciry's decision. City of Mankato v, ll�ahoney, 542 N.W.2d 689, 691-92 (Minn. App. 1996) (quotations and citations omitted). The courts "determine whether the municipality's action in the particular case was reasonable." UanLandschoot v. City of Mendota Heights, 33b N.W.2d 503, 508 (Minn. 1983). The fact that a court reviewing the action of a municipal body may have arrived at a different conclusion, had it been a member of the body, does not invalidate the judgment of the city officials if they acted in good faith and within the broad discretion accarded them by statutes and the relevant ordinances. Id. at 509 (citation omitted). "In this state, a ciry has wide discretion in dealing with matters of local importance." Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 225, 125 N.W2d 846, 850 (1964) (citation omitted). To waive the minunum distance requirement, the ciry council had to make a reasonabie finding, supported by the evidence, "that rhe location of the proposed site would provide economic development benefits without significant negative impacts on residential or commercial uses." St. Paul, Minn., Code of Ordinances § 403.05. :� �1 �•� s 1. Economic Development Benefits Oak Grove contends that there is no evidence that the location of the proposed bingo site would provide economic development benefits, and that the grant of a waiver simply transfers e�sting economic benefits to the new location. However, the testimony given at the public hearing provides substantial evidence that the new location would provide economic development benefits. Robert Kessler, Director of License, Inspection, and Environmental Protection ("L.I.E.P."), testified: [L]icense staff recommends the approval of the application at the Midway Shopping Center because we find that the location is consistent with the intent of the proposed waiver contained 'm CouncIl File 00314. L.I.E.P. staff, in consultation with David Gontarek of the Deparnnent of Planning and Economic Development, �nds that the new bingo hall wiil have no adverse impact on the adjacent neighborhood or the commercial businesses. The location of the proposed bingo hall is ideal in that it will generate economic activity in a heretofore vacant and under-utilized area of the shopping center. *** We urge your approval of the application of the proposed legislation that allows for ttie waiver. Oak Grove's counsel testified that, if the ciry council granted this waiver, Oak Grove would no longer be able to operate a bingo faciliry at the Lexington site, stating that "this area simply can't support two bingo halls," and that the waiver would "simply move an existing economic benefit down the block." Oak Grove's counsel further testified that Oak Grove's space at Lexington and University was "admittedly under-utilized" and that Oak Grove had been negotiating with Home Depot for three years to open a new store on this property. If this happened, Oak Grove would have to 5 �i •� � , find a different site for its bingo license. Don Ludemann, President of the Snelling-Hamline Community Council, tesrified that he was at the public hearing to "speak against this waiver, or rather for the waiver with certain conditions." He tesrified about concerns regarding an "image problem," safety, lighting, landscaping, and parking. He agreed with Oak Grove that there would be "no net economic benefit," but testified that "there might be a secondary benefit," in that "people who go to play bingo will also shop at the Rainbow or the Walgreens or have dinner at the nearby buffet." Ludemann clarified that the neighborhood was concerned about "people who might prey upon" the bingo hall patrons. He was assured that off-dury police officers would provide securiry during the bingo sessions. Counsel for Midway pointed out in her testimony that, contrary Co Oak Grove's assertion that the ordinance calls for "special circumstances," the ordinance "talks about promoting responsible ownership and accountability." She testified that the four charities concluded that the location at "Lexington wasn't meeting their needs or their customers' needs for a feeling of security, safety, and far the shopping that the customers wanted," and that these four charities "have now signed leases and are ready to move into the space at Midway Center." She also testified that the first economic development benefit provided by the new location would be that Midway would invest over $700,000 to remodel and bring up to code the 10,000 square feet of space that had been vacant and untenable for 20 years. Midway's counsel further testified that the new locarion would bring about �7 Yl �• . 15,000 people a month into an area where "there's Cub Foods, there's Rainbow, there's Herberger's, there's Kmart," and that this would bring added economic benefit. Most of the bingo patrons are senior citizens who "make a day of it," and in the Midway Shopging Center they could spend money having lunch, buying groceries, and buying pharmaceuticals. There is not "a similar economic engine on Lexington." Ellen Waters, President of the Midway Chamber of Commerce, testified in support of the waiver because it was in the best interests of the "whole Midway business communiry." She stated that "the spin-off development in terms of shoppers and increased economic activity in that area will bene�it all of the surrounding stores *��=» Finally, Barbara Kale, Cfi0 of Midway Training Services ("MTS"), a chariry that serves developmentally disabled adults and is one of the four charities relying on bingo profits, testified: For about the last three years we were told that we were going to be moved to another location because the shopping center was going to be sold to Home Depot. Sometimes, we were going to be moved in three months, sometnnes six montks, sometnnes not at all. During this time, the other businesses closed or moved and the bingo hall itself was deteriorating rapidly. Presently, the condition is deplorable. Profits for MTS and the other charities declined significantly. In 1999, the MTS profits were 1!3 of what they were in 1998. The influx of money to unprove the premises where the new bingo hall will be located is an economic benefit. See Port Auth. v. Fisher, 275 Minn. 157, 166, 145 N.W.2d 560, 567-68 (1966) (when productive use of property is achieved, economic 7 �, . i I ` benefits to the city and the people will ensue). Furthermore, the record indicates that there are opportunities for additional economic benefits at the new locarion, in the fozm of increased profits for the charities, more patrons, and a location which permits those patrons to spend money at nearby seores and restaurants. Although St. Pau1, Minn., Code of Ordinances § 403.05 contains no defuution of "economic development benefits," in determining whether there is a public purpose in public financing of small business expansion, the Minnesota Supreme Court stated: In addition to the direct benefits derived from public financing of small business expansion—increased tax base and employment—there are favorable secondary economic effects. Jobs are created in businesses not directly financed because of the increased demand for goods and services by the new employees of the financed business. Minnesotcz Energy & Econ. Dev. Auth. v. Printy, 351 N.W.2d 319, 334 (Minn. 1984). The same theory of "favorable secondary economic effects" can be applied to this situation. St. Paul asserts: In addition to the initial bene�it of construction on the new site, which involves money spent on materials, labor, permits, and landscaping, and the rent and taxes which will be paid, there will be a ripple effect seen in spending at the ne9ghboring businesses by patrons of the new bingo hall. Based on all af the evidence, we conclude that the city council reasonably found that the location of Che proposed bingo site would provide economic development benefits. 2. No 5ignificant Negative Impacts on Residential or Commercial Uses Oak Grove contends that, even if the ciry council reasonably found that the � � �� .`.` location of the proposed bingo site would provide economic development benefits, any bene�it "comes at the expense of Oak Grove's established business," and thus fails to meet the second half of the waiver requirement addressing significant negative impacts on residential or commercial uses. Oak Grove's assertion that granting a waiver will cause it to close its bingo hall is based on the fact that the charities now renting from Oak Grove have signed leases with Midway. But testimony establishes that the charities are unwilling to remain at Oak Grove's bingo hall because the property is deteriorating, there are no nearby shops and restaurants, pro�ts have sharply declined, and any lease is uncertain due to Oak Grove's ongoing negotiations with Home Depot. The fact that Oak Grove's own actions make it unattractive for charities to rent space at its bingo hali does not establish that charities are unwilling to remain there merely because of the proximity of another bingo hall. Oak Grove cites North Mem'l Med. Ctr. v. Minnesota Dept. of Headth, 423 N.W.2d 737 (Minn. App. 1988), to support its claim that the ciry council's decision was arbitrary and capricious because the waiver did not satisfy the requirements of § 403.05. However, North Mem'1 Med. Ctr, is distinguishable; it held that a license to extend the service area for relator's ambulance services was properly denied where the Commissioner of Health found that the license would risk duplication of services and deleterious competition. Id. at 739-40. The court cited Twin Ports Convalescent, Inc. v. Minnesota State Bd. of Health, 257 N.W.2d 343, 348 (Minn. 1977), in fmding that the legislative intent of Minn. Stat. § 144.802 was "to protect the public welfare against E'' t �� • � deleterious competirion in the ambulance services field." North Mem'l Med_ Ctr., 423 N.W.2d at 739. The provision embodies a legislative deteruiination that t�e ambulance service business is one in which the public welfare is not promoted by free enterprise. Ambulance service is essential to a communiry. Id.; see also Troje v. City Council, 310 Minn. 183, 245 N.W2d 596 (1976) (ciry's denial of garbage hauler's license not arbitrary where city's interest in granting only one license was proper because additional license would increase risks to public safety and cause increase in rates or decline in public service). No such interests exist here to protect a business from legitunate competition; bingo halls are not essential services. The city ordinance does not provide that the city council may waive the distance requirement only if the existing, licensed bingo hall's profits are protected. Rather, the ordinance provides that "[t]he minimum distance requirement herein imposed may, to promote responsible ownership and accountability, be waived by the council *�` *." St. Paul, Minn., Code of Ordinances § 403.05(b) (emphasis added). Oak Grove also relies on Zylka v. City of Ctystal, 283 Minn. 192, 199, 167 N.W.2d 45, 51 (19b9) (ciry's decision to deny application for a special use permit arbitrary because unaccompanied by written findings specifying reason for denial, no city official made contemporaneous oral statement of reason, and insufficient evidence to support court fmding that permit would adversely affect the public health or safery or general welfare). But here, the record contains substantial testimony supporting the 1Q � � � do-89� city council's grant of a waiver. Contrary to Oak Grove's assertions, we conclude that the ciry council complied with St. Paul, Minn., Code of Ordinances § 403.05, finding that the two requirements necessary to grant a waiver were satisfied. The decision to grant a waiver to Midway was supported by substantial evidence, was not an enor of law, and was not arbitrary or capricious. Accordingly, we affum respondent's decision. Affirmed. Dated: �„��B/�'!/�1dY ��D/ SYate of Minnesota, Gourtof Appeals i hereby Certifiy�haiihe foregoing instru- merrt is atrue and correct copy ofthe o;iginal as the same appears on recor_d , i , ni� myofficethis '"�'� dayof�3- 20�L �� Asst Ueputy Cierk 11 R m �� - s�.p-�� , �oGo Council Fi1e # O Q p �• Green Sheet # /03 � G. ( RESOLUTION CITY OF SA1NT PAUL, M Presented By Referred To �� Committee: Date `E-4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 WHEREAS, Chapter 293 of the Saint Paul Legislative Code was enacted to regulate the subject of noise in the City of Saint Paul; and WHEREAS, §293.11 provides for the granting of variances from the sound level limitations contained in §293.09, upon a finding by the City Council that full compliance with Chapter 293 would constitute an unreasonable hardship on an applicant, other persons or on the community; and WHEREAS, Wild Tymes, represented by John McDonough, owner, who has been designated as the responsible person on the application, has applied for a variance to allow live music at 33 West 7 Place, on September 29 and 30 and October 1, 2000 for a block party event to celebrate the opening of Minnesota Wild Hockey; and WHEREAS, applicant is seeking a variance for the hours of 12:00 p.m.(noon) to 12:00 a.m.(midnight) on September 29 and 30 and October 1, 2000; and WHEREAS, if applicant is not granted a variance it will not be able to present the live music; and WHEREAS, the Office of License, Inspections, and Environmental Protection has reviewed the application and has made recommendations regarding conditions for the variance; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul hereby grants a variance to Wild Tymes, subject to the following conditions: 1) The variance shall be for the hours of 12:00 p.m. to 12:00 a.m. on September 29 and 30 and- F�.choti�s o- � ia,o�p,,„. -! 9:uopm. � rOctober �.� 2�0�. 2) All electronically powered equipment used in conjunction with the event shall not exceed 90 dBA from noon until midnight on each of the dates as measured at the sound mix or fifty (50) feet from the sound board, whichever is closer. . 3) The applicant shall provide personnel and equipment who shall provide continuous sound level monitoring between noon and midnight on all dates to ensure compliance with Condition #2- 4) Al1 electronically powered equipment, PA systems, loudspeakers or similar devices shall be turned off no later than 12:00 a.m. on September 29 and 30 and October 1, 2�00. Q FURTHER RESOLVED, that any violation of the conditions set forth above on the September 29, 2000 date may result in revocation of the grant of a variance for the September 30 and October 1, 2000, dates, and any violation of the conditions set forth above during the September 30, 2000 date may also result in revocation of the grant of a variance for the October 1, 2000 date, in addition to any criminal citation which might issue. Requested by Department of: By: Approved by Mayor_ Oate r , , �f�(�� ,; _, Form Approved by City Attorney Byc Approved b} Mayor for Submission to Council ✓ ,/ By / l�� ' � �4 By: Adopted by Council: Date \ n �a`�, �- �� Adoptiqry Certified by Council Secretary OFFYCE oF LIEP Date: 9/15I2000 GRE EN S HE E T N 103761 °a- ax'k R. IC3i8ersatt 266-9147 $p�T�r DIRECfOR xxr-mmrciL � ITY ATTORNEY ITY CLE[lK Y�!!R ust be on Council Agenda by: '°°° ��ET az�crox IN. & MGT- SVC. DZR. � Se tember 27, 2000 3 mx cox assisraarr� OTAL # OF SIGNATURS PAGBS 1 (CLIP ALL LOCATIONS FOR SIGNATURE) CTION REQUESTED: COMMFNDATIONS: APPROVE (A) OR REJECP (R) SRSONAL SHR4ICB CONTRAClS M[75T ANSi18R T88 POLLOWING: PLANNING COMLtISSION CIVIL SERVICE COMMISSION 1. Has the person/firm e�er urorked under a contract for this department? CTH COF4IITTEE HUSINBSS REVIEW C1�UNCIL Y&S NO STA£F Has [his person/Piim ¢ver been a City employee? DISTRICT COU&T Y&S NO Does this person/firm possess a skill not normally possessed by any UPPORTS WHICH COIINCIL OHJEGTIV&? Curient City emplOyee? YES NO laia all YSS anewera oa a separate sheet and attach. INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why): ild Tymes Sports Club has requested a sound level variance for musicians and sound system concerts at their block parties at 33 7th Place West. The parties are scheduled on September 29 & 30, and October l, 2000 from 12:�0 noon to 12:00 midnight. VANTAGES IF APPROVED: ill place conditions that will limit the sound impact in surrounding residential and commercial areas. ISADVANTAGES IF APPROVED: Persons living or working near 33 7th Place W. will be able to hear the sounds from the musicians and sound system. ISADVANTAGES IF NOT APPROVED: he sound level impact on surrounding residential and commercial areas could e greater with no conditions. pplicant may not be able to present the musicians and sound system without exceeding the sound level limitations contained in 293.09. OTAL AMOUNT OF TRANSACTION $ 450 COST/REVENUE BUDGETED YES NO FUNDING SOURCE 320-33350 ACTIVITY NUMBER 0141 FINANCIAL INFORMl1TION: (EXPLAIN) For staff monitoring overtime. R�83�arrh��t«:r S�P � � ?U�� SEP-14-2000 14=30 CITY OF ST PRUL LIEP CITY OF SATI�T PAUL Ncrm Coleman, Mayor September 14, 2000 TO: FROM: SUBJECT: 61Z 266 9124 P.02 OFFICE OF L[CENSE, INSPECT(ONS AND EPNtRONMENYAL PR07ECTJON Q � �� Robert Krssfv. Direcror IAWRY PkOFESSIONAL Tslspha+e� 6S!-?6c�9090 BUILUQJG Fctsimik: 65/d669099 Suue300 651-?6Q9f2a 350 Sc Pua Ssreu Sat'.c Pmrl. Minnesoto SS(02-I510 Nancy A.nderson, Council Tnvesrigation & Reseazch Room 310, City Hail Mazk Kaisersatt �2� Office of License, Inspections and Environmental Protecrion Sound T.evel Vatiance .Amplified Live Music Attached is a sound level variance application from John McDonough, Owner, Wild Tymes, to allow musicians and a sound system during their block party. A variance is requested from 12:00 noon to 12:00 midnight on September 24 & 30, and October 1, 2000, Please have this item placed on the Counci] agenda for September 27, 2000. If you have any questions, feel &ee to contact me at 266-9147. Public Hearing Notice and Resolution ta follow. i�i�,'�. AttachmenfS c: file TOTAL P.02 STATE t1F MINNESOTA RECEf�JE� �PR 2 - 200� �I?Y �LERK ��-�9� ❑ Supreme Court � Court Of Appeais TRANSCRIPT OF JUDGMENT i do hereby certity that the toregoing is a ful! and t�ue copy of the Entry o/ Judgment in the cause therein entitled, as appears from the original record in my office; that l have carefu�ly compared the within copy with said original a�d that the same is a correct transcript therefrom. Witness my signature at the �� in the City of St. Pau� � �: Dated By: � � �/�_ Assistant Clerk STATE OF MINNESOTA Oak Grove Properties, Inc., Relator, �S. City of St. Paul, Respondent. ❑ Supreme Cburt � � Court Of Appeals JUDGMENT CX-00-1838 Appellate Court Case Number •• :• Trial Court Case Number Pursuant to an order of Cou�t heretofo�e duly made and entered in this cause it is determined and adJudged thatthe decision of the City Council for the City of St. Paul dated September 27, 2000 6e and the same hereby is affirmed in accordance with unpublished opiniona and thaf judgment be enfe�ed accordingly. A certified copy of the entry of judgment d e Court's decision is herein transmitted and made parf of the remitfitur. March 29, 2001 �� ' Dated and signed: FOR TNE COURT By: ' Dated Assistant Cferk Form P.PL-310A �o-�q� This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3(2�00). STATE OF 1VIINNESOTA IN COURT OF APPEALS CX-00-1838 RECElVE(3 APR 2 � 2Q01 urTY �L�'f? Oak Grove Properties, Inc., Relator, vs. City of St. Paui, Respondent. Filed February 20, 2001 Affirmed Harten, Judge City of St. Paul Council City Council File No. 00-892 Frank J. Walz, Cuyn Scherb Glover, Robert D. Maher, Michelle Bergholz Frazier, Best & Flanagan, L.L.P., 4000 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4331 (for appellant) Clayton M. Robinson, St. Paul City Attorney, Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, MN 55102 (for respondent) Considered and decided by Harten, Presiding Judge, Willis, Judge, and Hanson, 7udge. UNPUBLISHED OPINION I�ARTEN, Judge Respondent St. Paul Ciry Council issued a bingo hall license for a proposed bingo hall to be located less than two miles from an existing bingo ball. Respondent ��-�qa waived the requirement that there be a miuimum of two miles between bingo halls, based on a finding that the new bingo hall would provide economic development benefits without significant negative impacts on residential or commercial uses. Relator, owner of the existing bingo hall, challenges the city's waiver decision. Because we conclude that the decision was supported by substantial evidence, we F�[y� FACTS Relator Oak Grove Properties (Oak Grove} has owned and operated a bingo hall at the intersection of Universiry and Lexington Avenues in St. Paul for rune years under licenses issued by the Minnesota Gambling Control Board and respondent City of St. Paul (St. Paul). During that time, the same four charitable organizations have sponsored bingo at Oak Grove's bingo hall. The bingo hall license is separate and distinct from the license obtained by the charities to operate in the hall. On August 3, 2000, pursuant to Chapter 403 of the St. Paul, Minn., Code of Ordinances, RK Midway LLC, d/bta Midway Center Bingo (Midway), applied to St. Paul for a license to operate a bingo hall at the intersection of University and Snelling Avenues, less than two miles from Oak Grove's Lexington site. The four charities currently conducting charitable bingo at Oak Grove's bingo hall intend to move to the new bingo hall. St. Paul, Minn., Code of Ordinances § 403.05 provides, in pertinent part: (a) Minirnum distance established. A minimum distance of two (2) miles 2 �� •• . shall be required between buildings licensed for bingo hails under the provisions of tfus chapter. " '� ''` (b) Waiver of distance requirement. The miuimum distance requirement herein imposed may, to promote responsible ownership and accountability, be waived by the council upon: a finding by the council that the location of the proposed site would provide economic development benefits without significant negative impacts on residential or commercial uses; provided, however, that (i) the waiver could allow no more than one licensed bingo hall within two miles of another licensed bingo hall, and (2) such a waiver could not be granted to the fee owner of a� existing, licensed bingo hall within a two [mile] radius. Pursuant to the procedures of St. Paul, Minn., Code of Ordinances § 310.04(d)(1), upon receipt of Midway's application, the O�ce of License, Inspection, and Environmental Protection sent notice to the neighborhood district council for the area of the new site advising it of the right to object to issuance of the license. On September 18, 2000, after a legislative hearing, the legislative hearing officer recommended that the license be issued to Midway and noted that the request far a waiver of the minimum distance requirement would be the subject of a public hearing before the ciry council. On September 27, 2000, the St. Paul Ciry Council (the city council) held a public hearing. After testimony from opponents of the waiver, including Oak Grove, and proponents of the waiver, the city council adopted a resolution fmding that the waiver requirements of § 403.05 had been met, granted a waiver of the minimum distance requirement, and issued a bingo hall license to Midway. Oak Grove petitioned for writ of certiorari seeking reversal of the city council's action. 3 �a-�q 9 DECISION A city council's decision may be modified or reversed if it is unsupported by substantiai evidence in view of the entire record as submitted ar arbitrary or capricious. Substanrial evidence is such relevant evidence as a reasonable niiud might accept as adequate to support a conclusion or more than a scintilla of evidence. Routine municipal decisions should be set aside only in those rare instances where the decision lacks any rational basis, and a reviewing court must exercise restraint and defer to the ciry's decision. City of Mankato v, ll�ahoney, 542 N.W.2d 689, 691-92 (Minn. App. 1996) (quotations and citations omitted). The courts "determine whether the municipality's action in the particular case was reasonable." UanLandschoot v. City of Mendota Heights, 33b N.W.2d 503, 508 (Minn. 1983). The fact that a court reviewing the action of a municipal body may have arrived at a different conclusion, had it been a member of the body, does not invalidate the judgment of the city officials if they acted in good faith and within the broad discretion accarded them by statutes and the relevant ordinances. Id. at 509 (citation omitted). "In this state, a ciry has wide discretion in dealing with matters of local importance." Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 225, 125 N.W2d 846, 850 (1964) (citation omitted). To waive the minunum distance requirement, the ciry council had to make a reasonabie finding, supported by the evidence, "that rhe location of the proposed site would provide economic development benefits without significant negative impacts on residential or commercial uses." St. Paul, Minn., Code of Ordinances § 403.05. :� �1 �•� s 1. Economic Development Benefits Oak Grove contends that there is no evidence that the location of the proposed bingo site would provide economic development benefits, and that the grant of a waiver simply transfers e�sting economic benefits to the new location. However, the testimony given at the public hearing provides substantial evidence that the new location would provide economic development benefits. Robert Kessler, Director of License, Inspection, and Environmental Protection ("L.I.E.P."), testified: [L]icense staff recommends the approval of the application at the Midway Shopping Center because we find that the location is consistent with the intent of the proposed waiver contained 'm CouncIl File 00314. L.I.E.P. staff, in consultation with David Gontarek of the Deparnnent of Planning and Economic Development, �nds that the new bingo hall wiil have no adverse impact on the adjacent neighborhood or the commercial businesses. The location of the proposed bingo hall is ideal in that it will generate economic activity in a heretofore vacant and under-utilized area of the shopping center. *** We urge your approval of the application of the proposed legislation that allows for ttie waiver. Oak Grove's counsel testified that, if the ciry council granted this waiver, Oak Grove would no longer be able to operate a bingo faciliry at the Lexington site, stating that "this area simply can't support two bingo halls," and that the waiver would "simply move an existing economic benefit down the block." Oak Grove's counsel further testified that Oak Grove's space at Lexington and University was "admittedly under-utilized" and that Oak Grove had been negotiating with Home Depot for three years to open a new store on this property. If this happened, Oak Grove would have to 5 �i •� � , find a different site for its bingo license. Don Ludemann, President of the Snelling-Hamline Community Council, tesrified that he was at the public hearing to "speak against this waiver, or rather for the waiver with certain conditions." He tesrified about concerns regarding an "image problem," safety, lighting, landscaping, and parking. He agreed with Oak Grove that there would be "no net economic benefit," but testified that "there might be a secondary benefit," in that "people who go to play bingo will also shop at the Rainbow or the Walgreens or have dinner at the nearby buffet." Ludemann clarified that the neighborhood was concerned about "people who might prey upon" the bingo hall patrons. He was assured that off-dury police officers would provide securiry during the bingo sessions. Counsel for Midway pointed out in her testimony that, contrary Co Oak Grove's assertion that the ordinance calls for "special circumstances," the ordinance "talks about promoting responsible ownership and accountability." She testified that the four charities concluded that the location at "Lexington wasn't meeting their needs or their customers' needs for a feeling of security, safety, and far the shopping that the customers wanted," and that these four charities "have now signed leases and are ready to move into the space at Midway Center." She also testified that the first economic development benefit provided by the new location would be that Midway would invest over $700,000 to remodel and bring up to code the 10,000 square feet of space that had been vacant and untenable for 20 years. Midway's counsel further testified that the new locarion would bring about �7 Yl �• . 15,000 people a month into an area where "there's Cub Foods, there's Rainbow, there's Herberger's, there's Kmart," and that this would bring added economic benefit. Most of the bingo patrons are senior citizens who "make a day of it," and in the Midway Shopging Center they could spend money having lunch, buying groceries, and buying pharmaceuticals. There is not "a similar economic engine on Lexington." Ellen Waters, President of the Midway Chamber of Commerce, testified in support of the waiver because it was in the best interests of the "whole Midway business communiry." She stated that "the spin-off development in terms of shoppers and increased economic activity in that area will bene�it all of the surrounding stores *��=» Finally, Barbara Kale, Cfi0 of Midway Training Services ("MTS"), a chariry that serves developmentally disabled adults and is one of the four charities relying on bingo profits, testified: For about the last three years we were told that we were going to be moved to another location because the shopping center was going to be sold to Home Depot. Sometimes, we were going to be moved in three months, sometnnes six montks, sometnnes not at all. During this time, the other businesses closed or moved and the bingo hall itself was deteriorating rapidly. Presently, the condition is deplorable. Profits for MTS and the other charities declined significantly. In 1999, the MTS profits were 1!3 of what they were in 1998. The influx of money to unprove the premises where the new bingo hall will be located is an economic benefit. See Port Auth. v. Fisher, 275 Minn. 157, 166, 145 N.W.2d 560, 567-68 (1966) (when productive use of property is achieved, economic 7 �, . i I ` benefits to the city and the people will ensue). Furthermore, the record indicates that there are opportunities for additional economic benefits at the new locarion, in the fozm of increased profits for the charities, more patrons, and a location which permits those patrons to spend money at nearby seores and restaurants. Although St. Pau1, Minn., Code of Ordinances § 403.05 contains no defuution of "economic development benefits," in determining whether there is a public purpose in public financing of small business expansion, the Minnesota Supreme Court stated: In addition to the direct benefits derived from public financing of small business expansion—increased tax base and employment—there are favorable secondary economic effects. Jobs are created in businesses not directly financed because of the increased demand for goods and services by the new employees of the financed business. Minnesotcz Energy & Econ. Dev. Auth. v. Printy, 351 N.W.2d 319, 334 (Minn. 1984). The same theory of "favorable secondary economic effects" can be applied to this situation. St. Paul asserts: In addition to the initial bene�it of construction on the new site, which involves money spent on materials, labor, permits, and landscaping, and the rent and taxes which will be paid, there will be a ripple effect seen in spending at the ne9ghboring businesses by patrons of the new bingo hall. Based on all af the evidence, we conclude that the city council reasonably found that the location of Che proposed bingo site would provide economic development benefits. 2. No 5ignificant Negative Impacts on Residential or Commercial Uses Oak Grove contends that, even if the ciry council reasonably found that the � � �� .`.` location of the proposed bingo site would provide economic development benefits, any bene�it "comes at the expense of Oak Grove's established business," and thus fails to meet the second half of the waiver requirement addressing significant negative impacts on residential or commercial uses. Oak Grove's assertion that granting a waiver will cause it to close its bingo hall is based on the fact that the charities now renting from Oak Grove have signed leases with Midway. But testimony establishes that the charities are unwilling to remain at Oak Grove's bingo hall because the property is deteriorating, there are no nearby shops and restaurants, pro�ts have sharply declined, and any lease is uncertain due to Oak Grove's ongoing negotiations with Home Depot. The fact that Oak Grove's own actions make it unattractive for charities to rent space at its bingo hali does not establish that charities are unwilling to remain there merely because of the proximity of another bingo hall. Oak Grove cites North Mem'l Med. Ctr. v. Minnesota Dept. of Headth, 423 N.W.2d 737 (Minn. App. 1988), to support its claim that the ciry council's decision was arbitrary and capricious because the waiver did not satisfy the requirements of § 403.05. However, North Mem'1 Med. Ctr, is distinguishable; it held that a license to extend the service area for relator's ambulance services was properly denied where the Commissioner of Health found that the license would risk duplication of services and deleterious competition. Id. at 739-40. The court cited Twin Ports Convalescent, Inc. v. Minnesota State Bd. of Health, 257 N.W.2d 343, 348 (Minn. 1977), in fmding that the legislative intent of Minn. Stat. § 144.802 was "to protect the public welfare against E'' t �� • � deleterious competirion in the ambulance services field." North Mem'l Med_ Ctr., 423 N.W.2d at 739. The provision embodies a legislative deteruiination that t�e ambulance service business is one in which the public welfare is not promoted by free enterprise. Ambulance service is essential to a communiry. Id.; see also Troje v. City Council, 310 Minn. 183, 245 N.W2d 596 (1976) (ciry's denial of garbage hauler's license not arbitrary where city's interest in granting only one license was proper because additional license would increase risks to public safety and cause increase in rates or decline in public service). No such interests exist here to protect a business from legitunate competition; bingo halls are not essential services. The city ordinance does not provide that the city council may waive the distance requirement only if the existing, licensed bingo hall's profits are protected. Rather, the ordinance provides that "[t]he minimum distance requirement herein imposed may, to promote responsible ownership and accountability, be waived by the council *�` *." St. Paul, Minn., Code of Ordinances § 403.05(b) (emphasis added). Oak Grove also relies on Zylka v. City of Ctystal, 283 Minn. 192, 199, 167 N.W.2d 45, 51 (19b9) (ciry's decision to deny application for a special use permit arbitrary because unaccompanied by written findings specifying reason for denial, no city official made contemporaneous oral statement of reason, and insufficient evidence to support court fmding that permit would adversely affect the public health or safery or general welfare). But here, the record contains substantial testimony supporting the 1Q � � � do-89� city council's grant of a waiver. Contrary to Oak Grove's assertions, we conclude that the ciry council complied with St. Paul, Minn., Code of Ordinances § 403.05, finding that the two requirements necessary to grant a waiver were satisfied. The decision to grant a waiver to Midway was supported by substantial evidence, was not an enor of law, and was not arbitrary or capricious. Accordingly, we affum respondent's decision. Affirmed. Dated: �„��B/�'!/�1dY ��D/ SYate of Minnesota, Gourtof Appeals i hereby Certifiy�haiihe foregoing instru- merrt is atrue and correct copy ofthe o;iginal as the same appears on recor_d , i , ni� myofficethis '"�'� dayof�3- 20�L �� Asst Ueputy Cierk 11