05-855�as�v�nxa,�, q(�y(os
RESOLUTION
CITY OF SAINT PAUL, NIINNESOTA
Presented By
Referred To
WHEREAS, the proposed change in use includes new use of lower level space and re-
configuration of street level space; and
1 WHEREAS, prior to application for a building permit, EQ Life contacted the
2 Office of License, Inspection, and Environmental Protection zoning administrator for approval of
3 a change in use at 870 Grand Avenue in Saint Paul in order to comply with Section 61101 of the
4 Saint Paul Legislative Code which states that "[n]o building permit shall be issued for the ... use
5 of any building or shucture or part thereof ... which ... is not in accordance with all of the
6 provisions of [the zoning] code"; and
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8 WHEREAS, the proposed change in use requires a building permit; and
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WHEREAS, on 7une 22, 2005, the zoning administrator approved EQ Life's proposed
use as consistent with the zoning code; and
WHEREAS, the zoning administrator applied the exemption from Section 63.204 (a)
("Rule of Five") in order to grant the approval; and
WHEREAS, the zoning administrator informed the District 16 Planning CounciUSummit
Hill Association (hereinafter "SHA"), of the approval; and
WHEREAS, on July 5, 2005, the SHA appealed the zoning administrator's June 22, 2005
decision to the Board of Zoning Appeals (hereinafter `BZA"); and
VJHEREAS, the BZA heard and granted the appeal of the SHA on August 1, 2005; and
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Council File # 05 � �
Green Sheet # � �� D � � �
Committee: llate
WHEREAS, EQ Life appealed the BZA determination to the Saint Paul City Council;
WHEREAS, EQ Life and the SHA have entered into a Settlement Agreement regarding
the dispute over parking requirements at 870 Grand Avenue in Saint Paul;
NOW, THEREFORE, BE IT RESOLUED, that the Council of the City of Saint Paul, by
this resolution and pursuant to its authority to modify decisions of the Board of Zoning Appeals
under Section 61.'704 of the Saint Paul Legislative Code, hereby revokes the August 1, 2005
decision of the Board of Zoning Appeals, denies the appeal of EQ Life, and adopts the
recommendations and findings of the zoning administrator as presented to the Board of Zoning
Appeals (attached and incorporated by reference) as modified below:
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1 1. EQ Life s use is granted on the basis of the Settlement Ageement reached
2 between EQ Life and the SHA wherein EQ Life agrees to validate all employee and
3 customer parking without regazd to the length of stay in the parking ramp attached to 870
4 Grand Avenue (executed copy of agreement attached to this resolution and incorporated
5 by reference); and
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7 2. Nothing in this resolution nor the City Council's acrion in this matter constitutes
8 an approval of any use of the lower level space other than for storage space at 870 Grand
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Avenue by any party other than EQ Life; and
3. Any future change in use at 870 Grand Avenue will require review by the zoning
admiuistrator for compliance with the site plan as set forth in the resolution in Council
File 00-598 and all other zoning requirements; and
4. The parking exemption under Section 63.204 (a) of the Saint Paul Legislative
Code is hereby applied and therefore the building at 870 Grand Avenue shall no longer be
eligible for that exemption ("Rule of Five"); and
5. This resolution does not constitute a ruling on the merits of the appeal of the SHA
to the BZA, and this resolution does not constitute a ruling on the merits of the appeal of
EQ Life to the City Council;
AND, BE IT FINALLY RESOLVED, that the City Clerk shall mail a copy of this
resolution to the Summit Hill Association, EQ Life, and the Zoning Administrator.
Requested by Department of:
By:
Adoption Cert�f�ed by
By:
Date
Secretary
Form Approved by City Attorney
By: (
Approved by Mayor for Submission to Council
By:
By:
Adopted by Council: Date ;�Q�g�..,yyv\ ��� 'oL��
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Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
n� _�t'��i
DepartrneM/office/council: Date lnitiated: V J v � —
co -����� 14SEP-05 Green Sheet NO: 3028013
Conpct Person 8 Phone: � Deoartrnent Sent To Person InitiaVDate
Counalmember Dave Thune I � j 0 ouvcil
266-8620 q�� 1 ouncil DeoarimentDirector �
Must Be on Council Agenda by (Date): Number 2 i Cier Ci erk I
14SEP-05 For
Routing 3
Order 4 I
5 �
Total # of Signature Pages _(Clip All Locations for Signature)
Action Requested:
Revoking the August 1, 2005 decision of the Board of Zoning Appeals, denying the appeal of EQ Life, and adopting the
recommendations and fmdings of the zoning administrator as presented to the Boazd of Zoning Appeals with five conditions.
Recommendations: Approve (A) or Reject (R): Personal Service Contrects Must Answer the Following Questions:
Planning Commission 1. Has this personffirm ever worked under a contract for this department?
CB Committee Yes No
Civil Service Commission 2. Has this person/firm ever been a city employee?
Yes No
3. Does this personlfirm possess a skill not normally possessed by any
current city employee?
Yes No
Explain all yes answers on separete sheet and attach to green sheet
Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): ,
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AdvantageslfApproved: -
DisadvantaqeslfApproved:
DisadvanWges If NotApproved:
ToWf Amount of . CosURevenue Budgeted:
Transaction:
Fundinp Source: ActivitV Number:
Financial 1 nformation:
(F�cplain)
05°���
BO�RD QF ZOI�IING APPEALS STAFF REPORT
TYPE OF APPLICATION: Admiaistrative Review FII.E #: OS-128190
APPLICANT:
HEARING DATE:
LOCATION:
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August 1, 2005
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LEGAT. DESCRIPTION: SUMMIT pARK ADDTfIQN TO ST. PAU�.IN RAMSEY
CO[JI3TY,MII�NESOTALOTS 1 THRZ3LOT 6 BLK23
� 30SEPH P DI'SARTS RE AND IN SD SUMMIT PARK ADD
IATS 3 TfIRU LOT 6 BI%23
PLAIVNING DISTRICr: 16
PRESENT ZOi�IING: B2; SIGN-GRAND ZONIl�TG CODE REFERENG'E: 61.701
REPORT DATE: 7uly 25, 2005 BY: Tom Heach
DEADLINE FOR ACitON: September 4, 2005 DA1T: RECENED: Tuly 6, 2005
A. PULiPOSE: An appeal of a detetminationby the Zoning Administratoriegarding parking
requirem�ts for a spa proposed to go in the basement of the Giand Ptace refail development
B. SITE AND AREA CONDITIONS: The site is located at the southwest corner of C'maud
and Victoria. Most of the site is occnpied by aretail building with two-leveis ofpazldng over
the first floor.
An apazttnent building is located immediately to the wesk Retait aad other commercial nses
are Iocated to the east and north on Grand Avenue. Single-familyresideatial is locatedto the
south on.Lincoln across the atfey.
C. FINDINGS:
i. In 2001 the.City Council appmved a site plan for tfie ietail building at the southwest.
comer of Grand and Victoria.
The b►rilding is cuaentlyused as shown on fhe approved site plan: retail aad commoa
spaco oa the fust floor, two-levels of parkang over tfie retail space and storaga space in
e,�etora
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File #OS-128190
StaffReport
flie basement, These uses require a total of 208 off-street parl�ng spaces. The site
pzovides 208 off-street parking spaces,
2 One of the cuaent retail tenants, a book store, is leavmg. A new rdsil tenant, EQLife,
wants to move into ffie bookstores' space on $e first fioor and coavert a portion of fhe
basemeat Trom stoiage to a spa. EQLifeseIls heatth related products andprovides
services snch as fiair and nait caze aad massage,s.
3. Zoning sfaffreviewed EQF ife's proposai and determined tfiaf the proposed cbanges meet
the requirements for off-street parking and is p�mitted by wning. (See attached letter
dated 6l22/0�.
Staff based its detemuuation on the following:
a The fioor plans submitted by EQLife show 2,138 square feet of floor azea in the 7 �
basement being converted &om un$nished storage to a sQa. A spa would be y i
considered commerciat space in a multi-use retail center. The parldng reqairements
for commercial space in a multi use retail center is one off-street parking space per
28d square feet The padong requiremeAt fo r unfinished storage space in the
basetnenYis one=off sC=eet pat�t`ang space per S,Q00 square fcek
Therefore, Uus change of use from storage to spa would increase the pazking
requirement for Yhe properly by 7.20 off-street parldng spaces_
b. EQIafe also submitted a floor plan showing that 614 squaze fcet of hallway and
bathroom space on the fust floor would be �econfigured so that the space couid be
accessed from a shazed hallway and nsed by empioyees one of the adjacent tenants in
addition to empIoyees and cvstomeis of EQISfe. This space was considered part of
the book sbore and coimted as commerciai space for ParkinS requ�rements when the
si4e plan was approved in 2001. . .
ReconfiSuring tbis sgace would allow it to be considered common space in a mutti-
use retaiI center instead of commerciat space in s mvlti-use retail center. TEie parkinS
requitement for common space in a multi-use retail center is one off-street parking
SPace Per 5.000 square feet 'Fhe parldng requiremerit for commercial spaces in a
mutfl-use retail center is one off-street paddng sPace Pea' 28p square feet.
This oltange of use would redace the parldng requirement for the gropedy by 2.07 off-
sh+eet padong spaces.
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StaffReport
Ctassifying the reconfig�sed bathmoms and haltway as comtnon space is consistenf
with Sectioa b3.203 of tfie zoning code wtrioh states; `°fhe pa�ngi�i�� for
each nse ia amniti-tenantbuilding shallbe debecminedbased onthepetc�tage ofthe
gross floor ares used by each nse in the mniti tenant building. �4ny shared,space, such
as an atrium, comraon area, utility areq w fmished basernent, public or shared
restrooms, staircase or elevator area shatl be considered, for purposes of
determining parking requirements, the same as storage areas. Uses with access to
these slutred spaces shaff be responsfble for providing tfie required padang for these
spaces „ [Italics added]
c. The neE change in nquired parking for the changes proposed by BQLife wauld be
5.13 off-streef Puking sPaces ��,20 SPaces - 2.07 spaces.)
d. � Section 63.204.a. pmvides a Iimited exemptioa &om patidng requin�ents where the
use of a buiiding changes. It states "Whea any existing uses ehange to new ases
which reqaire six (� or more additional off-street parking spaces thaa the exisking
uses, the six (G) or more additional spaces shall be pmvided along with the spaces
aiready provided New uses which re4ufre fn'e (S) or' fewer spaces than the ezi.rfing
uses shall be exemptJ'rom providing additional spaces. However, this exemption
provision shall be calcutated cumularively stazting finm adoption of tfiis provisioa on
Janaary 3,1994, so that no propertyreceives a totat eicemption of more tfian five (5)
SP�es." (Ita&os addedj This section is refesed to as the `4vle of 5".
The changes from a book store to EQLi#'e (including the proposed spa space in the
b���) re9uires 5 pazking spaces. The `4nle of S' exemption has not been used for
this site before. Therefore, dvs pmject qualifies to use the `Yule of 5" exemption. If it
is used here, it could not be used again iri fhe future.
4. The Summit Hill Association appealed the Zoning Administrator's decision on parking
for EQLife. (See attached letter dated 7/5/05�. They claim that:
a. `�'he plan pu�ports to convert carrent [bookstore] iesfroom [on the first floor] into
common space wlrich is a fallaoy. ,, The 614 square feet of [bookstore] restroom
space was never cansidend `retail space' in the ... compromise pamitting the .
conshuction° of this developmeat
b. `�'he rntb of 5 is being usefl incorrecgy,"
c. The change in nse will increase parldng demand and haffic. "EQLife infoimed the
S$A, (Sim�mit H'ill Aasociation) that their Saturday busiaess will draw appmximately
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Fite #105-I28190
StaffRepart
40Q customers based on theu cnnent locatioa in Richfield_ in addition, SHA and the
City irnov"r there is at least a 1,OOQ-space patking defieit along C,rand Avemie and that
this pazticular inte�ectiori is oae of the wrnsf m[the] Svmmit E�iII area for h�affcc and
P�&"
E. CORRESPONDENCE: Staffhas not received any cotrespondence since the appeal letter
from Summit H'ill was sabmitted.
F. STAFF RECOMIVVIEENDATTON: Staffagree.s with the SummitHill Assooiation that there
are serious parking and ha�c issues on C,rand Avenne. However, the zoning code allows
parking to be detemuned differently for restrooms that aze sUared as opposed to msfxooms
that are part of a singte tenanYs space. The zoning code siso allows an exemption for
changes ofusewhen the differ�cebdweea the old use and the new use is five or fewer
spaces. ff a proposat mcets the code ieciviremenfs, staffhas no discretion to deny a peimit
even if there aze serions pazldng and haffie issues.
Therefore, based on findings 1 thcough 3, staffrecomme.nds thaf the Boazd of Zoning
Appeals uphoId the determination that EQLife's proposal meets the tutes govemiug patking
for common space ia muiti tenant bm7dings (Section 63203) and changes of use (63.204.a)
and deny the appeat by the Summit H'ill Assoeiation,
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EXECUTION COPY
SETTLEMENT AGREEMENT � � -
THIS SETTLEMENT AGREEMENT ("Agreement") is made as of the day of
September, 2005, by and among the Smmnit Hill Association (the "SHA"), and EQ-Life, a
subsidiary of Best Buy Stores, L.P. ("EQ-Life"). SHA and EQ-Life may be referred to
individually as "Part�' or collectively as the "Parties."
FII2ST, because on June 22, 2005, the City's Office of License, Inspections and
Environmental Protection (the "Zoning Administrator") determined that EQ-Life's proposed
change in use of space at 870 Grand Avenue complied with the applicable off-street parking
requirements of the Saint Paul City Zoning Code (the "Zoning Code");
SECOND, because the SHA on July 5, 2005 appealed to the Board of Zoning Appeals
(`BZA") the Zoning Administrator's 7une 22, 2005 determination with respect to EQ-Life's
proposed use of lower level space at 870 Grand Avenue;
THTRD, because the BZA on August 1, 2005 granted the SHA appeal;
FOURTH, because EQ-Life has appealed the BZA determination to the St. Paul City
Council;
FIFTH, because EQ-Life and the SHA desire to resolve and settle all disputes regarding
parking requirements for EQ-Life's use of the location at 870 Grand Avenue; and
SIXTH, because EQ-Life and the SHA have agreed in principle to settle all present
disputes regarding parking requirements for EQ-Life's use of the location at 870 Grand Avenue;
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and
promises contained in this Agreement, and in exchange far other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
mutually agree as foilows:
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EXECUTION COPY
New Pazking Arrangements. In consideration of the promises made in this
Agreement and subject to the City Council's approval of EQ-Life's proposed use of 870 Grand
Avenue as approved by the Zoning Administrator on June 22, 2005, EQ-Life agrees to the
following:
a. Upon commencement of EQ-Life's retail use of space at 870 Grand
Avenue, and for so long as such retail use continues, EQ-Life will require all of its
employees to park in the existing parking ramp at 870 Grand Avenue and will make such
parking available at no charge to the employee.
b. Upon commencement of EQ-Life's retail use of space at 870 Grand
Avenue, and for so long as such retail use continues, EQ-Life will offer ali of its
customers complimentary parking in the existing parking ramp at 870 Grand Avenue,
regazdless of length of stay.
c. EQ-Life will promote to its customers the availability of complimentary
off-street ramp parking through prominent signage at store entry points, and through
phone contact with customers. Such signage will be consistent with that described in
EQ-Life's presentation to the SHA on August ll, 2005.
d. EQ-Life will work in good faith with the SHA and the Grand Avenue
Business Association in advocating mutually beneficial solutions to address existing
traffic and parking concems along Grand Avenue.
2. Approval of Proposed Uses. In consideration of the promises made in this
Agreement, the SHA will not oppose or appeal the City CounciPs approval of EQ-Life's
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10. Captions. The captions and headings of this Agreement are for convenience and
reference purposes only, and shall not affect in any way the meaning and interpretation of any
provisions of this A�eement.
1 i. Advice of Counsel. The parties have cazefully read and understand the effect of
this Agreement; each of the parties has had the assistance of separate counsel, or has had the
opportunity to have the assistance of separate counsel. While SHA has attomeys on its Boazd, it
has not hired counsel. However, its Executive Committee has carefully reviewed, discussed,
and considered ali terms of this Agreement that has been drafted by EQ-Life's counsel, and it
has made comments and requested changes to the Agreement.
12. Entire Agreement. This document contains the entire agreement of the Parties. It
may be changed only by written agreement signed by all the parties.
Date:
EQ-Life
Date:
Summit Hill Association
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EXECUTION COPY
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SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("AgreemenY') is made as of the day of
September, 2005, by and among the Summit Hill Associarion (the "SHA'�, and EQ-Life, a
subsidiary of Best Buy Stores, L.P. (`BQ-Life"). SHA and EQ-Life may be referred to
individually as "Part}�' or collectively as the "Parties."
FIRST, because on June 22, 2005, the City's Office of License, Inspections and
Environmental Protection (the "Zoning Administrator") detenniued that EQ-Life's proposed
expansion of retail space at 870 Grand Avenue complied with the applicable off-street pazking
requirements of the Saint Paul City Zoning Code (the "Zoning Code");
SECOND, because the SHA on July 5, 2005 appealed to the Board of Zoning Appeals
(`BZA") the Zoning Administrator's June 22, 2005 determination with respect to EQ-Life's
proposed use of lower levei space at 870 Grand Avenue;
THIRD, because the BZA on August l, 2005 granted the SHA appeal;
FOURTH, because EQ-Life has appealed the BZA determination to the St. Paul City
Council;
FIFTH, because EQ-Life and the SHA desire to resolve and settle all disputes regarding
parking requirements for EQ-Life's use of the location at 870 Grand Avenue; and
SIXTH, because EQ-Life and the SHA haue agreed in principle to settle all present
disputes regarding parking requirements for EQ-Life's use of the location at 870 Grand Avenue;
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and
promises contained in this Agreement, and in exchange for other good and valuable
consideration, the receipt and sufficiency of which are hereby acl�owledged, the Parties
mutually agree as follows:
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EXECUTTON COPY
1. New Pazking Arrangemerns. In consideration ofthe promises made in this
Agreement and subject to the City Council's approval of EQ-Life's proposed use of 870 Grand
Avenue as approved by the Zoning Administrator on 7une 22, 2005, EQ-Life agrees to the
following:
a. Upon commencemern of EQ-Lafe's retail use of space at 8'70 Grand
Avenue, and for so long as such retail use continues, EQ-Life will require all of its
employees to park in the e�usting parking ramp at 870 Grand Avenue and will make such
parldng available at no charge to the employee.
b. Upon commencement of EQ-Life's retaii use of space at 870 Grand
Avenue, and for so long as such retail use continues, EQ-Life will offer all of its
customers complimentary parking in the eacisting parking ramp at 870 Grand Avenue,
regardtess of length of stay.
c. EQ-Life will promote to its customers the availability of complimentary
of� street ramp parking through prominent signage at store entry points, and through
phone contact with customers. Such signage will be consistent with that described in
EQ-Life's presentation to the SHA on August 11, 2005.
d. EQ-Life will work in good faith with the SHA and the Grand Avenue
Business Association in advocating mutually beneficial solutions to address e�sting
traffic and pazking concerns along Grand Avenue.
2. Approvai of Proposed Uses. In consideration of the promises made in this
Agreement, the SHA will not oppose or appeal the City Council's approval of EQ-Life's
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proposed use of commercial space at 870 Grand Avemie pursuant to the resolution attached
hereto as E�rhibit 1 .
3. Non-Assignability. Tlus Agreemevt, and tfie rights and obligations hereunder,
may not be assigned by any Party. This Agreement does not constitute approval by the SHA of
the use of lower level space at 870 Grand Avenue for any purpose other than storage by any
party othet than EQ-Life. The Parties agree further that the Rule of 5(Secrion b3204(a) of the
St. Paul City Zoning Code) cannot be used again for 870 Grand Avenue.
4. Settleme�. This Agreement is made by the Parties for the purpose of avoiding
further costs and e�enses related to the present dispute, and does not constitute an admission by
any Party regarding the validity or invalidity of any claim or defense presemed or that may
otherwise exist, or a rejection or repudiation of any of the facriial or legal premises for the
Parties' aetions.
5. Warranties. Each Party hereby represems and wairants that: (a) the execution and
delivery of tlus Agreemern does not comravene, result in a breach o� or constitute a default
under, any contract or agreeme� to which it is a Pariy or by wluch it or any of its properties may
be bound (nor would such execution and delivery constitute such a default with the passage of
time or the giving of notice or both), and does not violate or contravene any law, order, decree,
rule, regulation or restriction to w}rich it is subject; (b) it is duly organized, legally e}usting and
in good standing under the laws af the state of its organization; and (c) the terms of this
Agreement wlrich apply to it constitute legal, valid and binding obligations of it, enforceable in
accordance with such tetms; and (d) it has full power and authority to erner into this Agreement
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and that the person eYecuting tiris Agreemem on behalf of such Party is fuily and duly authorized
to er�ecute the Agreemern on such Party's behalf.
6. Representations and Wairanties Material. The representations and wazranties
made in this Agreemern are material. It is a material breach of tlus Agreement if any
representation or wananty proves to be untcue, inaccurate or incomplete in any material aspect.
7. Remedies. Each Parcy agrees that any violation or threatened violation of tlus
Agreemern may cause irreparable injury to the other Party, entitiing the other Party to seek
injunctive relief in addition to a11 other remedies. The prevailing Pazty in any action to enforce
the obligations of tlris Agr�ment shail be ernitled to reimbwsemem of its reasonable attorneys'
fees and costs from the non-prevailing Party.
8. Governing Law. This Agreemern shall be governed ia all respects by the law of
the State of Minnesota. Any legai action that may be taken under this Agreement must be
commenced in the State or Federal Courts in the State of Minnesota, County af Ramsey. The
Parties agree that such courts will have personal jurisdiction over them and that venue in such
courts will be agreeable to them. Tlus agreemern is subject to apglicable law. In the event that
applicable law, including the Zoning Code, is modified in a manner that maxerially affects the
pwpose or ability of the parties to comply with this Agreement, the garties agree to discuss in
good faith modifying the obligations hereunder to reflect such changes in appIicable law.
9. Counterparts. This document may be executed in multiple counterparts, and hy
the Parties hereto on separaxe counterparts, and each cournerpart, when executed and delivered,
shall constitute an origina] agreement enforceable against all who signed it without production
o� or accourning for, any other counterpart, and all separate counterparts sha11 constitute the
same agreement.
4
� � � � EXECUTION COPY
�� r
10. Captions. The captions and headings of flris Agreemern are for convenience and
reference purposes only, and shall not affect in any way the meaning and irnerpretation of any
provisions of this Agreement.
11. Advice of Counsel. The parties have carefully read and understand the effect of
this Agreemem; each of the parties has had the assistance of separate counsel, or has had the
opportunity to have the assistance of separate counsel. While SHA has attomeys on its Board, it
has not hired counsel. However, its Executive Committee has carefully reviewed, discussed,
and considered all terms of tlus Agreement that has been drafted by EQ-Life's counsel, and it
has made comments and requested changes to the Agreement.
12. Entire Ag�eement. Tlris documem contains the entire agreement of the Parlies. It
may be changed only by written agr�ment signed by all the parties.
Date: G% �� /°S _
EQ-Life
sy h �ir'«y��
Its Ts'cEi;nrtil� °�-� -�c
Date: � / ���Q-�
Summit Hill Association
� ! �a�.�i ; %" L
Its �V�S�i a a�a.� �-1{�
�p�,x�. q � �y ��
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
Presented By
Referred To
Council File # �5' � ,
Gxeen Sheet # � ��� � � �
c;ommittee: Late
1 WHEREAS, prior to application for a building permit, EQ Life contacted the
2 Office of License, Inspection, and Environmental Protection zoning administrator for approval of
3 a change in use at 870 Grand Avenue in Saint Paul in order to comply with Section 61.101 of the
4 Saint Paul Legislative Code which states that "[n]o building permit shall be issued for the ... use
5 of any building or structure or part thereof ... which ... is not in accordance with all of the
6 provisions of [the zoning] code"; and
7
WHEREAS, the proposed change in use requires a building permit; and
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WHEREAS, the proposed change in use includes new use of lower level space and re-
configurarion of street level space; and
WHBREAS, on June 22, 2005, the zoning administrator approved EQ Life's proposed
use as consistent with the zoning code; and
WHEREAS, the zoning administrator applied the exemption from Secrion 63.204 (a)
("Rule of Five") in order to grant the approval; and
WHEREAS, the zoning administrator informed the District 16 Planning CounciUSummit
Hill Association (hereinafter "SHA"), of the approval; and
WHEREAS, on 7uly 5, 2005, the SHA appealed the zoning administrator's June 22, 2005
decision to the Board of Zoning Appeals (hereinafter `BZA"); and
WHEREAS, the BZA heard and granted the appeal of the SHA on August 1, 2005; and
WHEREAS, EQ Life appealed the BZA determination to the Saint Paul City Council;
and
WHEREAS, EQ Life and the SHA have entered into a Settlement Agreement regarding
the dispute over parking requirements at 870 Grand Avenue in Saint Paul;
NOW, THEREFORE, BE IT RESOLVED, that the Council of the City of Saint Paul, by
this resolutfon and pursuant to its authority to modify decisions of the Board of Zoning Appeals
under Section 61.704 of the Saint Paul Legislative Code, hereby revokes the August 1, 2005
decision of the Board of Zoning Appeals, denies the appeal of EQ Life, and adopts the
recommendations and findings of the zoning administrator as presented to the Board of Zoning
Appeals (attached and incorporated by reference) as modified below:
`��' °t� 1`1�
1 1. EQ Life's use is granted on the basis of the Settlement Agreement reached V, ���
2 between EQ Life and the SHA wherein EQ Life agrees to validate all employee and
3 customer pazking without regard to the length of stay in the parking ramp attached to 870
4 Grand Avenue (executed copy of agreement attached to this resolution and incorporated
5 by reference); and
6
2. Nothing in this resolution nor the City CounciPs action in this matter constitutes
an approval of any use of the lower level space other than for storage space at 870 Grand
Avenue by any party other than EQ Life; and
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3. Any future change in use at 870 Grand Avenue will require review by the zoning
administrator for compliance with the site plan as set forth in the resolution in Council
File 00-598 and all other zoning requirements; and
4. The pazking exemption under Section 63.204 (a) of the Saint Paul Legislative
Code is hereby applied and therefore the building at 870 Grand Avenue shall no longer be
eligible for that exemption ("Rule of Five"); and
5. This resolution does not constitute a ruling on the merits of the appeal of the SHA
to the BZA, and this resolution does not constitute a ruling on the merits of the appeal of
EQ Life to the City Council;
AND, BE IT FINALLY RESOLVED, that the City Clerk shall mail a copy of this
resolution to the Summit Hill Association, EQ Life, and the Zoning Administrator.
Requested by Department of:
By:
Adoption Cert f'ed by u
By: /`' � �
Approve b /� �or: Date
By: 4�/'�
Secretary
Form Approved by City Attorney
$Y: i
Approved by Mayor for Submission to Council
By:
Adopted by Council: Date ;_��VY� 1 1� a��
,� T�`
� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
CO �ouncil
CoMact Person & Phone:
Councilmember Dave Thune
266-8620
Must Be on Council Agenda by (Date):
14SEP-05
Tofal # of Signature Pages
Date Initiated: O � — ���
14SEP-05 Green Sheet NO: 3028013
�
Assign
Number
For
Routing
Order
ueoarvnem �em � o renon mmauuate
0 ouncil I i
1 ouocil � DeoartmentDirector !
2 i Clerk Ci Clerk
3
4
5
(Clip All Locations for Signature)
Revoking the August 1, 2005 decision of the Boazd of Zoning Appeals, denying the appeal of EQ Life, and adopting the
recommendations and fmdings of the zoning administrator as presented to the Board of Zoning Appeals with five conditions.
iaanons: r�pprove �v,7 or ne�ecc �rc�: rersona� sernce concraccs must nnswer me ronowmg uuesnons:
Planning Commission 1. Has this person/firm ever worked under a contract for this department?
CIB Committee Yes No
Civil Service Commission 2. Has this person/firm ever been a city employee?
Yes No
3. Does this personlfirm possess a skill not normally possessed by any
� curreM ciry employee?
Yes No
Explain all yes answers on separate sheet and attach to green sheet
Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why):
Advantaaes If Aqproved:
Disadvantaqes If Approved:
Disadvantages If Not Approved:
Transaction:
Fundinq Source:
Cost/Revenue Budgeted:
Activity Number:
Financial Information:
(Explain)
EXECUTION COPY
� � m � 9
'.� s�
J rJ
SETTLEMENT AGI2EEMENT
THIS SETTLEMENT AGREEMENT ("A�eemenP') is made as of the day of
September, 2005, by and among the Siuumit Hill Association (the "SHA"), and EQ-Life, a
subsidiary of Best Buy Stores, L.P. ("EQ-Life"). SHA and EQ-Life may be referred to
individually as "Party" or collecrively as the "Parties."
FIRST, because on June 22, 2005, the City's Office of License, Inspections and
Environmental Protection (the "Zoning Administrator") deternvned that EQ-Life's proposed
expansion of retail space at 870 Grand Avenue complied with the applicable off-street parking
requirements of the Saint Paul City Zoning Code (the "Zoning Code");
SECOND, because the SHA on July 5, 2005 appealed to the Board of Zoning Appeals
(`BZA") the Zoning Administratar's June 22, 2005 determination with respect to EQ-Life's
proposed use of lower level space at 870 Grand Avenue;
THIlZD, because the BZA on August 1, 2005 granted the SHA appeal;
FOURTH, because EQ-Life has appealed the BZA determination to the St. Paul City
Council;
FIFTH, because EQ-Life and the SHA desire to resolve and settle all disputes regazding
parking requirements for EQ-Life's use of the location at 870 Grand Avenue; and
SIXTH, because EQ-Life and the SHA have agreed in principle to settle all present
disputes regarding parking requirements for EQ-Life's use of the location at 870 Grand Avenue;
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and
promises contained in this Agreement, and in exchange for other good and valuable
consideration, the receipt and sufficiency of which are hereby aclrnowledged, the Parties
mutuaily agree as follows:
1
Q ���
�°���A
EXECUTION COPY
1. New Parking Arrangements. In consideration of the promises made in this
Agreement and subject to the City CounciP s approval of EQ-Life's proposed use of 870 Grand
Avenue as approved by the Zoning Administrator on 7une 22, 2005, EQ-Life agrees to the
following:
a Upon commencement ofEQ-Life's retail use of space at 870 Grand
Avenue, and for so long as such retail use continues, EQ-Life will require all of its
employees to pazk in the eacisting pazking ramp at 870 Grand Avenue and will make such
parldng available at no chazge to the employee.
b. Upon commencement of EQ-Life's retail use of space at 870 Grand
Avenue, and for so long as such retaal use continues, EQ-Life will offer ali of its
customers compiimentary pazking in the e�cisting parking ramp at 870 Cnand Avenue,
regardless of length of stay.
c. EQ-Life will promote to its customers the availability of complimentary
off-street ramp parking through prominent signage at store entry points, and through
phone cornact with customers. Such signage will be consistent with thai described in
EQ-Life's presentarion to the SHA on August 11, 2005.
d. EQ-Life will work in good faith with the SHA and the Grand Avenue
Business Association in advocating mutually beneficial solutions to address e�sting
traffic and parking concerns along Grand Avenue.
2. Approval of Proposed Uses. In consideration of the promises made in this
Agreement, the SHA will not oppose or appeal the City CounciPs approvai of EQ-Life's
2
� _ a�� �° �;
� � � � "� EXECUTION COPY
proposed use of commercial space at 870 Grand Avemie pwsuant to the resolution attached
hereto as Exhibit 1 .
3. Non-Assignability. Tlus Agreement, and tfie rights and obligations hereunder,
may not be assigned by any Party. This Agreement does not constitute appmval by the SHA of
the use of lower level space at 870 Grand Avenue for any purpose other than storage by any
party other than EQ-Life. T`he Parties agree further that the Rule of S(Section 63.204(a) of the
St. Paui City Zoning Code) cannot be used again for 870 Grand Avenue.
4. Settlemern. Tlris Agreement is made by the Parties for the purpose of auoiding
further costs and expenses related to the present dispute, and does not consdtute an admission by
any Party regazding the validity or invalidity of any claim or defense presented or that may
otherwise exist, or a rejection or repudiation of any of the factual or legal premises for the
Parties' actions.
5. Warranties. Each Party hereby represents and warrants that: (a) the execution and
delivery of this Agreement dces not contrauene, result in a breach o� or constitute a default
under, any cantract or agreemeirt ta which it is a Party or by which it or any of its propezties may
be bound (nor would such execution and delivery constitute such a default with the passage of
time or the giving of notice or both), and does not violate or contrauene any law, order, decree,
rule, regulation or restriction to wlach it is subject; (b) it is duly organized, legally existing and
in good standing under the laws of the state of its organization; and (c) the terms of this
Agreement wlvch apply to it constitute legal, va7id and binding obligations of it, enforceable in
accordance with such terms; and (d) it has fuil power and suthority to enter into this Agreement
3
- �a m � +r; ia
� � � EXECU7TON COPY
and that the person e7cecuting tlus Agreemern on behalf of such Party is fully and duly authorized
to �ecute the Agreement on such Party's behalf.
6_ Represernations and Watranties Material. The representations and wazranties
made in tlus Agreemern are materiaJ. It is a material breach of this Agreemern if any
representation or warianty proves to be untrue, inaccurate or incomplete in any material aspect.
7. Remedies. Each Pazty agrees that any violation or threatened violation of tlus
Agreeme� may cause irreparable injury to the other Party, entitling the other Party to seek
injunctive relief in addition to all other remedies. The prevailing Party in any action to enforce
the obligations of ttris Agreemem sha11 be entitled to reimbwsemern of its reasonable attorneys'
fees and costs from the non-prevailing Party.
8. Goveming Law. This Agreement shall be governed in all respects by the law of
the StaYe of Minnesota. Any legal action that may be taken under this Agreement must be
commenced in the State or Federal Courts in the State of Minnesota, County of Ramsey. The
Parties agree that such courts wiil have personal jurisdiction over them and that venue in such
courts will be agreeabie to them. Tlris agreemeut is subject to agplicable law. In the evern ihat
applicable law, including the Zoning Code, is modified in a manner that materially affects the
purpose or ability of the parties to compiy with this Agreement, the parties agree to discuss in
good faith modifying the obligations hereunder to reflect such changes in applicable law.
9. Counterparts. T7vs document may be executed in mvitiple counterparts, and by
the Parties hereto on separate counterparts, and each cowrterpart, when executed and delivered,
shail constitute an original agr�menY enforceable a�ainst all who signed it without production
o� or accourning for, any other counterpart, and all separate counterparts shall constitute the
same agteement.
4
� � �' � :� r EXECIITION COPY
10. Captions. The capiions and headings of this Agreemern aze for convenience and
reference purposes only, and shall not affect in any way the meaning and interpretation of any
provisions of t}ris Agreemern.
11. Advice of Counsel. The parties have carefully read and understand the effect of
tlris Agreement; each of the parties has had the assistance of separate counsel, or has had the
opportunity to have the assistance of separate counsel. While SHA has attorneys on its Board, it
has not hired counsel. However, its Executive Committee has carefully reviewed, discussed,
and considered all terms of this Agreement that has been drafted by EQ-Life's counsel, and it
has made comments and requested changes to the Agreement.
12. Enfire Agreement. This document contains the entire agreement of the Parties. It
may be changed only by written agreement signed hy all the parties.
Date: �� ° f�.�
EQ-Life
By �Imt//����°��G�"
Its / l�iB,,�ia;� zy -1 . -�-c�
Date: � � ����
Summit Hill Association
- �; �i.
: � _� �
� .' a
E
OFFICE OF LICENSE, INSPECTIONS AND
ENVIRONMENTAL PROTECTTON �
Janeerz E Ros¢r, Director /7� //��
V O
CI'I'Y OF St1INT PAUL
Randy C. Ke[[y, Mayor
COMMERCEBUILDING Tetephone: 6�7-266-9090
8Fourth StreetEwt,Suite200 Facsimile: 651d66-9124
SaintPaul, Minnesota 55101 {f'eb: wznvliep.us
�a
Au�st i 1, zoos
Ms. Mary Erickson
Council Research Office
Room 310 City Hall
Saint Paul, MN. 55102
Dear Ms. Erickson:
I would like to confirm that a public hearing before the Ciry Council is scheduled for Wednesday, September 7,
2005 for the following zoning case:
Appellant: Todd Aartman, EQ-Life
Zoning File #: OS-128190
Purpose: An appeal of a decision by the Board of Zoning Appeals granting the appeal of the Summit Hill
Assn to a determination by the Zoning Administrator that a proposed change of occupancy at 870
Grand Ave to accommodate EQ-Life does not require additional off-street parking.
Location:
Staff:
District :
Board:
870 Grand Ave.
Recommended Denial.
District 16 was the appellant .
Approved on a 6- 1 vote.
I have confirmed this date with the office of Council Member Dave Thune. My understanding is that this public
hearing request will appear on the agenda of the City Council at your earliest convenience and that you will
publish notice of the hearing in the Saint Paul Legal Ledger. Thanks ! NOTICE OF PUBLIC HEARING I
Sincerely,
John Hardwick, Zoning Specialist
AA-ADA-EEO Empioyei
'R�e Saint Paul CYiy Cotuieil w11- conduct a I
public-hearing on Wednesday, Septeuiber'
7. 2005 at 5:30 p.m. in the City Coundl
Cl�a�abers, =Lhird Fioor City FIall; 15 West
Kellogg Boulevazd, St. Paui, NIN,. to eon-
sida the appeal of Todd FIartmazi, E9 -
Life, to decision of the Board of 2oning
Appeals graziting the appeal of the Sum-
mit -Hili Association W a determination by
the Zoning Administrator that a proposed
change of occupancy at 870 Grand Ave-
nue to accommodate EQ - Life does not
require additionai off-street pazkln�s. (Zon-
Ing N71e 05-125190) �
Dated: August 11, 2005 ' _
MARY ERICKSON '
tbssistant City CouIICil Secretary � � ,
.(AUgust 15]
� _—_= 81: PAUL LEGAG LEDGBR =—'__' I
_ __'
zaioisss. _ __ . . _ _ .. _ _ , � . __ __ . . _ i
!'S- .. ; �:
� APPLICATION FOR APPEAL
Department ofPlanning and Economic Development
ZoningSection
7400 City HaLI Anner
25 West Fnunh Street
'��' Saint Pau� MN SSIO2-1634
(65I) 266-6589
APPLICANT
PROPERTY
LOCATION
TYPE OF APPEAL: Application is hereby made for an appeal to the:
❑ Board of Zoning Appeats � City Councit
�
Under the provision of Chapter 64, Section 61.702 paragreph �a� of the Zoning Code, to appeal a
on August 1 Zp05 , File Number: 05-128190
(date of decision)
decision made by the Board of Zoning Appeals
GROUNDS FOR APPEAL: Explain why you feel there has been an error in any requirement, permit, decision
or refusal made by an administrative official, or an error in fact, procedure or
finding made by the Board of Zoning Appeals or the Planning Commission.
Name �4 through its Attorneys, Robins, Kaplan, Miller & Ciresi I
o,�,�� 2800 LaSalle Plaza, 800 LaSalle Avenue
��� Minneapolis St. M� Zip 55402 Daytime Phone 612-349-8500
Zoning File Name C,x'and Place Retail Develo�nt
Address / Location 87 0 Grand Avenue
See attached letter.
��.�:'#l'.�i _ �Ik�`Ci.__-�� �
_ � i ; '';t # "
•
(attach additional sheet if necessary)
ApplicanYs
DateAUgust 10, 2005���
�
P�> y3.� � - �/���� s��
2500 LASALLS PLAZA
800 LaSnLLa AveNUe
M[tvtvEAPOUS. MN 55402-2015
iEL:612-349-8500 FAX 612-339-4151
www.rkmc.com �
ATTORNEYS AT LAW
O �' �
°' -' i
TOVn G. HnRTmalv
612349-8245
AUgust 10, 2��5
VIA MESSENGER
Zoning Admuustration
Office of LIEP
8 Fourth Street E, Suite 200
Saint Paul, Miuuesota 55101
Re: Zoning File No. OS-128190 — Appeal of August 1, 2005 Board of Zoning
Appeals Resolution Granting the Summit Hill Association Appeal of the
June 22, 2005 LIEP Staff Determination of Parking Requirements at 870
Grand Avenue
Our File No.: 011082-2117
To Whom It May Concern:
On behalf of EQ-Life, we hereby file the enclosed "Application for Appeal" and requisite filing
fee with respect to the above-referenced August 1, 2005 Resolution of the Board of Zoning
Appeals ("BZA"). That Resolution granted an appeal filed July 6, 2005 by the Snmmit Hill
Association (the "SHA") challenging the 7une 22, 2005 determination by the Office of License,
Inspections and Environmental Protection (the "Zoning Administrator") that EQ-Life's proposed
change in use of e�sting retail space at 870 Grand Avenue complies with the applicable off-
street pazldng requirements of the Saint Paul City Zoning Code (the "Zoning Code"). The BZA
Resolution is replete with procedural, factual, and legal enors, which include, but aze not limited
to, the following:
1. The BZA, by operation of state statute, lacked jurisdiction to entertain the SHA
appeal.
u
State law (Minn. Stat. § 15.99, subd. 2) commands that "an agency must approve or deny
within 60 days a written request relating to zonittg," and that "[fJailute of an agency to
deny a request within 60 days is approval of the reques�t." An administrative appeal does
not higger a new 60-day time limit. (See Moreno v. City of Minneapolis, 676 N.W.2d l,
8(Minu. Ct. App. 2004). In the present matter, EQ-Life made its first "written request"
on April 11, 2005. By operation of state statute, and upon lack of final action by the city
within 60 days, EQ Life's written request is deemed approved. Accordingly, the August
1, 2005 decision of the BZA must be disregarded as untimely. �
✓
MP2152165061 � �
A T L A N t A• B 0 5 S 0 N� L 0 S A N G E C E S M I P N E A P 0 t[ 5 N A P L E S� 5 A I N T Y A U L� W A 5 H i N G T 0 N, D.
= Zonin Administrarion
August 10, 2005 0 � m � r�
Page 2
•
2. The BZA unlawfully considered and granted an untimely appeal by the SHA.
The SHA filed its appeal too late. Section 61.701 of the Zoning Code provides that
adminisirative appeals from a grant or denial of approval by the Zoning Administrator
must be filed with the Planuing Commission within ten (10) days after the decision
appealed from has been served upon the owner of the property. In this case, the June 22,
2005 decision by the Zoning Adiniuistrator was served on the building owner on June 23,
2�05. The SHA Appeal was not filed until July 6, 2005, thitteen days after service upon
the building owner, and was filed with the Boazd, not the Planniug Commission.
Accordingly, the Appeal is untimely and must be dismissed.
3. The BZA ignored substantial evidence in the record and restricted public testimony.
At the BZA hearing on August 1, 2005, the BZA chose not to review or read the
information and e�ibits submitted by EQ-Life. Those materials (attached hereto as
E�ibit A) included a lengthy letter memorandum, plus several accompanying documents
illustrating why the SHA appeal lacked merit. The BZA failed to review the materials,
and failed to allow EQ-Life to respond to the testimony of SHA representatives. At the
same time, the BZA did not make available to EQ-Life, unril after the public hearing, the
materials submitted by the SHA (attached hereto as Exhibit B).
� 4. The BZA unlawfully inctuded in its resolution findings and determinations made
after the close of the public hearing and final BZA vote.
The rational for the BZA decision includes matters beyond the stated reasons articulated
by the BZA members during the roll call vote. In particulaz, the second of the BZA's
numbered findings is that "[t]he basement must continue to be used as storage space
under the conditions of the City Council's resolution approving the site plan for Grand
Place in 2001: ' That finding contradicts the specific basis articulated by each BZA
member with respect to their vote on the SHA appeal.
5. The BZA interpreted the Zoning Code in a manner that is contrary to the plain and
unambiguous meaning of the Zoning Code.
The BZA disregarded the plain language of the Zoning Code in at least two respects.
First, the BZA concluded that the basement of 870 Grand Avenue merits a"spa"
designation wholly separate from the rest of the space. Second, the BZA concluded that
no use other than storage is permitted in the basement. The Code does not justify either
conclusion.
6. The BZA interpreted the Zoning Code in a manner that is contrary to the past
practice of the City in applying its Zoning Code.
• At the August 1, 2005 BZA hearing, the Zoning Office staff confirmed the longstanding
city practice, consistent with Section 63.207 of the Zoning Code, of designating as
"coznmercial space in a multi-use retail center" all retail space (other than restaurants) �
MP2 15216506.1
Zoning Administration
August 10, 2005
Page 3
°�,�����
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7.
8.
that are part of a multi-use retail facility, even if such but that would possibly have a
different designation as a stand-alone space. Nevertheless, the BZA chose, without
explanation, to depart from past practice by desigiating EQ-Life's contemplated space as
a"spa," even though that space lies within a building consisting of multiple commercial
uses.
The BZA unlawfully and arbitrarily discriminated agaittst EQ-Life in its
application of the Zoning Code.
In departing from longstanding past practice, and from the advice of the Assistant City
Attorney at the August 1, 2005 public hearing, the BZA failed to articulate a rationale for
treating EQ-Life differently than other applicants. In doing so, the BZA unlawfully
discriminated against EQ-Life in the application of the Zoning Code.
The BZA interpreted a past City Council resolntion as imposing restrictions in a
manner not supported by the plain and unambiguous language of that resolution.
The BZA rested its decision in part on a misreading of a 2000 City Council resoTution.
The resolufion (attached hereto as E�ibit C), referting to the building at 870 Grand
Avenue, states that "[t]he retail and parking development ... shall consist of basement
storage, street level retail and common areas and rivo levels of structured parlflng above
the retail." The statement does not psrescribe the duration of each use described therein,
Nevertheless, the BZA appazently concluded at the August 1, 2005 hearing that the
resolution's reference to "basement storage" operates as a permanent baz to any other
possible use of the basement at any time now or in the future. That conclusion reads into
the resolution a never-ending reshiction that the plain t�t does not support.
The errors set forth above and in the attached documents are included by way of illustration and
not by limitarion. EQ-Life expressly reserves the rigkt to raise furtker errors and bases for
appeal of the BZA's August 1, 2005 Resolution and to supplement this appeal at a later date.
We ask that the above appeal be scheduled for hearing before the City Council at its eazliest
oppoxtunity. Please contact the undersigned counsel for all communications with respect to this
proceeding.
Sincerely,
ROBINS, KAPLAN, MII.,LER & CIRESI L.L.P.
�� / � �
Toaa G. x�� ` '�
cc: Peter Wamer, Esq., St. Paul City Attomey (w/encls., via U.S. Mail)
Rachel Gunderson, Esq., St. Paul City Attorney (w/encls., via U.S. Mail)
Snmmit Hill Association (w/encls., via U.S. Mail)
�
�
�
MP2 15216506.1
zaoo LnSu.aE Pr e, e
soo LaSaccs Avsvve
M�N&APOr.cs MN 55402-2015
iE1:612349-8500 FAXX612339-4181
www.rkmccom � �
ATTORNEYS AT LAW
�i ' i '°� � . , '
s�.
TOnn G. HaRTMAN
61L349-8245
L�UgRSt I, ZOOS
VIA E-MAIL AND I3AND DELiVERY
Board of Zoning Appeals
350 Saint Peter Street
Saint Paul, Minnesota 55102
Re: BZA File No. OS-128190 — Summit Hill Associafion Appeal of June 22, 2005
LIEP Staff Determinafion of Parking Requirements at 870 Grand Avenue
Our File No.: 011082-2117
Deaz Members of the Board of Zoning Appeals:
On behaif of EQ-Life, we are writing to address the above referenced appeal filed July 6, 2005 •
(the "Appeal") by the Summit Hill Association (the "SHA") and related conespondence
concerning EQ-Life's proposed use of existing space at 870 Grand Avenue. Specificaily, the
SHA has appealed the deteruuuation by the Office of License, Inspections and Environmental
Protection (the "Zoning Aduiinistrator") that EQ-Life's proposed change in use of e�sting retail
space previously occupied by the Bound to Be Read bookstore ("BTBR") complies with the
applicable off-sireet pazking requirements of the Saint Paul City Zoning Code (the "Zoning
Code"). As detaiied below, the Appeal is procedurally defective aad fails to estaUlish any error
on the part of the Zoning Admiuistrator in making its June 22 decision. Moreover, the entire
pretnise of the Appeal, that EQ-Life's proposed use will cause a net increase in pazking needs, is
incorrect. Accordingly, the Appeat must be denied.
I. FACTUAL BACKGROUND
By letters dated April 11 and April 21, 2005, EQ-Life, tbrough the property owner, requested
the Zoning Adtninistrator's approval of its proposed use of the 870 Grand Avenue retail space
previously occupied by BTBR As described bg fhe Zoning Administrator's June 22 decision,
that proposed use includes cottversion of 2,138 square feet of lowez level storage area into spa
facilities. These lower level facilities woutd include approximately 950 square feet of customer
restroom/dressing room facilities, with the reu�ainder dedicated to sma11 spa treatment rooms. In
light of the addition of lower level resiroom facilities far customers, EQ-Life's proposed use atso
includes the conversion of existing main floor resirooms into shared restrooms for the use by
other tenants' employees and service personnel serviug the entire building. These shazed •
t Attached hereto as Exlubit A. • �
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restrooms will be physically and aesthetically distinct from the rest of the EQ-Life space and will
serve the security and customer eacperience needs of all tenants.
After weeks of discussions with and review by Zoning Adinuustrator staff, the Zoning
Adininistrator issued its June 22 decision approving EQ-Life's proposed use. In particulaz, the
Zoning Aduuiustrator determined that the change in use was permitted under the e�sting Zoning
Code without the need for additional parking spaces. The Zoning Administrator also rejected
proposals for the use of additional lower level space based on the presence of additional stacked
parking spots and extra pazlflng spots on commonly owned property located across the street
from 870 Grand Avenue.
On July 6, 2005, the SHA filed its appeal of the Zoning Adiniuistrator's June 22, 2005 decision
with the Board of Zoning Appeals (the `Board"). The Appeal objects to the conversion of
existing main floor restroom space to shared tenant space and the application of Section 63.204.a
of the Zoning Code to EQ-Life's proposed use. The Appeal does not provide any legal reasons
or analysis why or how the Zoning Code was misapplied. In addition, on July 28, 2005, we
understand that the SHA submitted additional information regazding the initial site approval for
870 Grand Avenue back in 2000. This submission does not contain any explanation as to how
this information is relevant to the Boazd's consideration of this case.
• On July 26, 2005, the Grand Avenue Business Association ("GABA") filed a letter with the
Zoning Administrator stating that EQ-Life should not receive a"variance" under the "Rule of 5"
in light of eacisting parking issues along Grand Avenue. We understand that similar objections
from neighborhood members may also have been submitted to the Zoning Administrator. These
were generated by SHA and GABA communications that inaccurately depict the nature of EQ-
Life's use of the 870 Grand Avenue space.
II. THE SAA APPEAL MUST BE DEIVIED AS A MATTER OF LAW.
A. The SHA Appeal Was Not Timely FYled.
Section 61.701 of the Zoning Code provides that administrative appeals from a grant or denial of
approval by the Zoning Administrator must be filed with the Plauuing Couunission within ten
(10) days after the decision appealed from has been served upon the owner of the property. In
this case, the June 22, 2005 decision by the Zoning Administrator was served on the building
owner on June 23, 2005. The SHA Appeal was not filed unril7uly 6, 2005, thirteen days after
service upon the building owner, and was filed with the Board, not the Plauning Commission.
Accordingly, the Appeal is untimely and must be disxnissed.
B. The SHA Fails to Establish Any Error in the July 22 Decision.
The grounds for appeal of the Zoning Admiuistrator's June 22 decision are limited to
determining whether there was any error in the applicarion of the Zoning Code to EQ-Life's
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proposed use. In maldng this determin;ng, the Zoning Code must be strictly construed
according to its pIain language and any ambiguity must be resolved in fauor of the properry
owner. Applying these standards, the Appeal fails to establish any lawful basis for challenging
the June 22 decision.
The Zoning Admiuistrator's decision was based on a straightforward application of the cleaz and
unambiguous language of the Zoning Code. The Appeal raises only two vague bases for
challenging that detenninarion_ First, the Appeal challenges the Zoning Administrator's
detennination that the converted shared resiroom space on the main level is ireated as storage
space under the Zoning Code for purposes of calculating off-street parlflng space requirements.
However, the Appeal does not and cannot point to any support in the Zoning Code for claiming
that ttus detennination was in error. Section 63.203 expressly provides that "[a]ny shazed space,
such as ... public or shazed restrooms ... shall be considered, for purposes of determuung
pazldng requirements, the same as storage azeas." The Appeal nonetheless claims that this
Zoning Code requirement can and should be ignored because the prior tenant did not make these
restrooms available for shared use and the purpose of the conversion is otherwise a"fatlacy."
However, nothing in the Zoning Code provides that Section 63203 may be disregarded based on
prior use or the tenanY's purposes in converting existing space to a different use. To the contrary,
the Zoning Code expressly recoeni�es and permits changes in use to accommodate different
needs of new property owners and tenants.
Moreover, contrary to the SFIA's contentions, the determinafion on the part of both EQ-Life and •
the property owner to convert the e�sting main floor resirooms into shared space is consistent
with the originat plans of the proper[y owner and the valid business concerns of EQ-Life. As
originaliy designed, the main floor BTBR restrooms were intended to be shared res�ooms for the
use of all tenants. This pmvision of shared restroom space is consistent with common business
practice in such mutti-tenant buildings and makes the space more attractive to prospective
tenants. Against the property owner's advice, BTBR requested that these restrooms be dedicated
to its exclusive use, requuuig other tenants to construct their own limited restroom facilities.
The conversion of the eacisting BTBR reskvoms back into shated use restrooms rehims these
facilities to their originat intended use consistent with standatd business practice and will enable
existing and future tenants to cease providing separate resiroom facilities.
EQ-Life's business model and needs also compel the conversion of the eicisting BTBR restrooms
back into shared resiroom space. EQ-Life is a health and wellness store concept that provides,
among other things, spa treatments and other services requiring enhanced customer restroom
space. EQ-Life's restrooms must therefore be an integrated and environmentally consistent part
of the customer experience. EQ-Life is conshucting new, expanded resiroom facilities in the
` See, eg., PTL, LLC v. Chrsago Counry, 656 N.W2d 567, 571 (Minn. App. 2003) (wheze a zoning ordinance
specifies the standazds for pemritted use, local discretion is Iimited to detem�iuing whether those standazds are met);
Chanhasren Estates Residentr Association v City ofChanhassen, 342 N.W.2d 335, 340 (Minn. 1984) (same); Minn.
Stat § 462357, subd 6(autfiorizing administrative appeals of pemiitting decisions only where it is alleged there is
an esor by the zoning administratoz m tfie enforcement of the wning code).
3 See, eg., SZS P'ship v. City ofApp[e Yalley, 511 N.W.2d 738, 741 (Mina 1994); Frpnk's Nursery Saler, Inc. x •
City ofRoseville, 295 N.W2d 604, 608 — 609 (Minn. 1980). �
° See Zonmg Code, § 63.205.
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lower level consistent with these needs. C�stomer use of the e�sting main floor restrooms
would be entirely inconsistent with tfie store e�cperience and customer needs. Accordingly, EQ-
Life neither wants nor needs the e�sting restrooms to be available for its customers and is
therefore converting them into shared restroom facilities for use by all tenants' employees and
service personnel. This use will serve the aesthetic and safety needs of the tenauts by providing
a secured and separate resizoom facility for non-customers.
In addifion to its vague and incorrect assertion that the conversion of main floor restroom space
is a"fallacy," the Appeal also claims that the restroom space being converted was never
considered "retail space" for purposes of the prior approved use. In one sense, the Appeal is
correct in that, as eaplained above, the building owner originally intended for these restrooms to
be shared restroom facilities and not counted as part of the BTBR tenant space. This fact only
fiuther exnphasizes why, now that these restrooms ha�e been converted back into shared
facilities, this space cannot be considered part of the EQ-Life retail space for purposes of
determining puldng space requirements. However, the Appeal also appeazs to unply that the
existing main floor restroom space did not conhibute significantly to the pazldng needs of the
building and there£ore its conversion should not be allowed as an offset against the parking
required by EQ-Life's conversion of lower level space. In this regazd, the Appeal is wholly
inconsistent. If, as the SHA argues, bathroom space should be discounted for purposes of
detennining parking requirements, then the customer restroom facilities being constructed by
• EQ-Life in the converted lower level should be similazly disregazde@. Yet the construcrion of
those additional restrooms is a primary basis for the SHA's objecrion that pazking requirements
aze being exceeded. The SHA offers no reason why the prior tenants' restroom space did not
create parlang concems, yet the EQ-Life restroom space supposedly increases pazking needs ,to
an unacceptable extent.
The Appeal also claims that Secfion 63.204.a of the Zoning Code, also lmown as the "Rule of 5",
"is being used incorrecfly." The Appeal does not specify any enor on the part of the Zoning
Admiuistrator to support this claim, other than the already addressed objecfion to the Zoning
Administrator's application of Secrion b3.203 to the converted restroom space on the main floor.
In fact, there is no error. Section 63.204 states that any change in existing uses that requires the
addition of 5 or fewer parking spaces is entitled to a one-time cumulafive exemprion from
pmviding additional parking spaces. There is no question that EQ-Life has proposed a change in
use to lower level and main floor space; indeed, this change is the entire predicate for the SHA's
appeal. Nor can the SHA point to any error in the Zoning Administratar's calculation of the
required parking spaces or any other basis in the Zoning Code for claiming that the Rule of 5
should not apply to EQ-Life.
In addition to the vague assertions of error addressed above, the SHA has also raised issues
regazding the general parking situarion on Grand Avenue and the overall "histor�' surrounding
the development at 870 Grand Avenue. These considerarions aze eniirely outside the scope of
the Board's consideration in this proceeding. For purposes of this Appeal, the Board may only
5 See n. 1 supra. See also Condor Corporation v. City of Saint Paul, 912 F.2d 215, 221 (8th �r. 1990) (a zoning
• decision agaivst the applicant is unlawful if the applicant meets the standards specified by the applicable zoning
ordinance). The lustorical documents provided by the SHA include mformation descnbing the proposed use of the
property as it e�sted at the time, including a Saint Paul Resolution genenlly describing the original pioposed use of �
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detennine if the Zoning Code, as it currently e�cists, has been properly applied in this case. It
has. Accordingly, the SHA Appeal must be denied.
Nonetheless, we note that underlyiug all the arguments of the parties regarding the traffic
situation on Grand Avenue is the incorrect assumption that EQ-Life will somehow e�cerbate
the parking situation at 870 Grand Avenue. In actuality, there is no evidence indicating that EQ-
Life will increase parking or lraffic problems at 870 Graud Avenue; in fact, EQ-Life eatpects to
have a positive impact on the pazldng situation
The SHA Appeal assumes that EQ-Life will increase current parking needs in light of what it
claims are EQ-Life estimates that Saturday h�affic will draw 400 customers to the 870 Cnaud
Avenue location. This "400 customer" number referenced in the Appeal is taken out of context
and applied incorrectly_ The 400 customer nwnber was offered by EQ-Life in response to an
SHA inquiry as an estimate of current ma�umum traffic at EQ-Life's Richfield location. These
Richfield store tra.ffic nvmbers reflect the peak time �affic at a lazger store in an entirely
different area and were never offered as (and are not) an accurate indicator of what the average
EQ-Life tra.ffic will Be at the Grand Avenue tocation. Indeed, the Richfield store -is
approximately 20,000 square feet in size, or appro�cimately 20% larger than the proposed C}raud
Avenue location. If, as the SHA and the Zoning Code presume, increased squaze footage has a
ditect relationsfiip to increased customer iraffic and pazking needs, thett the proposed EQ-Life
location at 870 Crraud Avenue can be expected to haue 20% less customer iraffic than the
Richfield location (i.e., 320 customers). Thus, the very data on which tUe SHA and others are
basing their arguments is flawed.
More importantly, neither the SHA nor any other pariy opposing the Zoning Administrator's
decision have considered whether EQ-Life's estimates of customer �a.ffic repre�,ent an increase
over the customer tr�ffic of the prior tenant. In fact, an examination o£ relevant data regazding
the prior tenant's business reveals that EQ-Life's customer h�affic will be significanfly less than
that of BTBR Based on data regazding auerage daily transactions obtained from the prior
tenant, EQ-Life estimates that BTBR averaged over 480 customers per day. Thus, contrary to
the unsupported assumptions of the SHA appeal, even the inflated estimate of 400 EQ-Life
customers on a peak day is less than the average daily traffic generated by the prior tenant.
That EQ-Life will likely have less parking needs than BTBR is also consistent with the
differences between the BTBR and EQ-Life businesses. The nature of $TBR products and their
low price per item makes it an economic necessity that BTBR would generate greater fraffic and
pazlang needs than EQ-Life's lower volume, appointment-based business. Many of the services
and facilities offered by EQ-Life require vastly more per customer space than the sale of books
and therefore preclude EQ-Life from serving a greater number of customers than the prior retail
book store tenant. The SHA's asswnptions that EQ-Life will increase current pazlang needs are
contrary to these economic realities.
t3�e 870 Grand Avenue properly. Nothing in these descriptions indicates that this use would not or could not change
as pemiitted by the Zottin° Code. Nor is Uxere an}�thiag in this informatioa tbat indicates that the property owner
somebow waived its right to cLange uses to those otheiwise permitted under the Zoning Code or ti�at the City is
otheiwise estopped from granting the EQ-Life application
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EQ-Life's ability to positively impact the pazking issues at the 870 Crraud Avenue location is
also demonsixated by its ongoing willingness and incentive to work with the community and
local business owners to alleviate any general pazking or traffic issues. EQ-Life has already
proposed a number of solutions to the SHA that it believes would improve the local parldng
situalion. EQ-Life remains committed to working with the SHA and other community
organizafions toward implementing these and other solutions that will help alleviate the current
pazlang space deficit.
C. The Additional Neighborhood Opposition by the GABA and Other Parties
Cannot Provide a Basis for Granting SHA's Appeal.
In addition to the SHA submissions, the GABA and other residents and businesses in the Grand
Avenue neighborhood have voiced opposition to the Zoning Administrator's decision. Like the
SHA Appeal, this neighborhood opposition fails to articulate or support any error on the part of
the Zoning Administrator in applying the Zoning Code. As a matter of law, such neighborhood
opposirion cannot be the basis for denying a use of property otherwise permitted under a zoning
code.� This is especially true in this case, where the concems of the GABA and other parties
have been based inaccurate information regazding the application and EQ-Life's parking needs.
Certain neighborhood opposition is being generated by literature dishibuted by the SHA. That
literature clauns that EQ-Life eapects "400 customers on an average Saturday." As explained
• above, that number is inaccurate and misleading. The 400 customer figure is from a larger store
and is not a reliable predictor of actual Saturday traffic at the EQ-Life space. The SHA also
omits the fact that even this inflated traffic number is likely significantly less than the traffic
generated by the prior tenant.
Opposition by the Grand Avenue Business Association was pursuant to similarly misleading
information. The GABA Board of Directors solicited opinions from its meinbers through an e-
mail depicting EQ-Life's use as requuing a variance from the Zoning Code, when in fact EQ-
Life has gone to great length to make sure that its use is consistent with the existing Zoning
Code. Contrary to the GABA's assumptions, EQ-Life is only asking that the Zoning Code be
applied to it in the same manner as every other Saint Paul business.
Aside from being based on factual inaccuracies, the opposition generated by the SHA and
GABA essentially asks that the Boazd ignore the existing Zoning Code, especially the Rule of 5,
and apply different rules to EQ-Life. Minnesota law has long forbid such disciimivatory and
arbitrary application of zoning codes. To the extent SHA and GABA seek a change in existing
law to address the parldng situation on Grand Avenue, there are appropriate vehicles for such
6 See EQ-Life paddng resolution proposals subuutted at SHA public hearing on June 30, 2005 (attached hereto as
Eachibit B).
� See Condor Corporation v. GYry of Saint Paul, 912 F2d 215 at 223, n.15 (imdex Minnesota 1aw, neighborhood
opposition is insufficient to deny a permit); Chanhassen Estates Reszdents Assoczarion v. City of Chanhassen, 342
N.W.2d at 340 (non-specific neighborhood opposition and testimony that a permitted use poses potential traffic
problems deemed insufficient to justify denial of use permit).
• $ See SHA Comment Solicitation attached hereto as Exldbit C.
9 See GABA Comment Solicitation attached hereto as Eaclubit D.
to See, e.g., Northwestern College v. Ciry of Arden Hills, 281 N.W.2d 865, 8�0 (Mivu. 1979) ("[a] zoning
ordinance must operate uniformly on those similazly situated.'�.
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action and EQ-Life would welcome the opportunity to participate in those efforts. However,
azguments that the law should be changed are not appropriate considerations for the Boazd and
may not form the basis for denying EQ-Life's application
For the foregoing reasons, the SHA's Appeal of the Zoning Aduuuisirator's June 22 decision
shauld be denied.
Sincerely,
cc: City Attomey
Summit Hill Association
Graud Avenue Business Association
Council Member David Thune
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April ll, 2005
Ms. Wendy Lane, Zoning Administrator
City of Saint Paul Office of LIEP
350 Saint Peter Street, Suite 300
Saint Paul, MN 55102
Re: 870 Grand Avenue
Deaz Wendy:
We would like your input on a proposed lease transaction involving the Bound To Be Read Bookstore
("BTBR") space at the above property. B'I`BR has been approached by another party that wishes to take
over the BTBR Iease. The proposed assignment would involve the following changes to the BTBR
premises:
1. The use of the premises would change from a retail bookstore and accessory uses to a retail
lifestyle store with accessory uses. The lifestyle store would sell personal health, wellness, and enhanced
living products and services. These would inciude instructional materials in audio, video, computer-
softwaze, and writ�en formats; personal heart electronics snch as haart monitors, blood pressure, insulin, •
respiratory, and other measurement devices; fitness and exercise aids and equipment; relaacation products
such as massagers, azomatherapy, and other homeopathic remedies and spa h personal grooming
aids such as lotions, fragrances, cosmetics, upscale hair caze and styling products; and medical equipment
such as adjustable motorized beds, chairs, carts, walkers, and oxygen delivery; prepackaged nuhifional
products and supplements. Services would include exercise and relaxarion services and classes such as
yoga and pilates, spa and salon treahnents such as nails, facials, slan treatments, and body massages and
azomatherapy.
2. The existing coffee shop would be retained. Part of the retail space would be replaced by a
pharmaey totaling 405 square feet, which would presumably have the same pa$dng count as retail space.
The eJCisting children's reading azea and puppet stage would be replaced with a storage room totaling 808
square feet (which could be made avai]able for coaummity events) and three other rooms totaling 461
square feet would be created for equipment and storage purposes. These storage and equipment rooms
totaling 1,269 square feet would presumably have the saxne parldng count as storage space. Otherwise,
the 14,230 square feet of street Ievel space would be substantially similaz to the present use of the
prexnises.
3. The 5,900 square foot lower or basement level configuration of the premises would coniinue to be
used for storage and accessory purposes. Portions of the open azea would be used for sitting, yoga, and
pilates. Men's and women's locker rooms totaling 955 square feet would be created, which presumably
would have the same pazldng count as storage space. Several small spa treatment rooms totaling 938
square feet and two manicure and pedicure rooxns totaling 671 square feet would also be created; these
1,609 square feet would presuxnabiy have the same pazldng count as retail space. In other respects, the
basement level would be substantially sixnilaz to the present use of the premises. ,
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Based on our analysis, the pazldng coimt for the new uses should be essentially the same as the cunent
uses. If so, BTBR is prepared to finalize the remaining business terrus of its transaction with the tlurd
party. Please contact me at 651-690-2001 x-101 or jstol�estad exeteirealty.com to let me lmow if you
agree v✓ith our analysis or whether you fl�ink any changes would be required ."Iliank you.
Very truly yours,
James A. Stolpestad
Chief Execurive O�cer
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Apri121,2005
Mr. Tom Beach
City of Saint Paul Office of L1EP
350 Saint Peter Street, Suite 300
Saint Paul, MN 55102
Re: Grand Place
Dear Tom:
We haue made the following pazlflng calculations for the proposed replacement of Bound To Be Read
(`BTBR") by EQ-Life (`BQL") at Cn•and Place.
Parldn� Ramu
As indicated in the Grand Place stt level and basement level floor plans attached as Fxhibit A and
F�hibit B Grand Placa currently has the following uses:
> Retail: 27,776 sf (BTBR -14,230 sf; J Crew- 5,428 sf; Pottery Barn - 8,118 s�. •
> Storage: 10,478 sf (BTBR - 5,904 sf; J Crew- 900 sf; Pottery Bazn- 2,974 sf ; ERC - 700 s fl.
> Common: 5,451 sf {combined street level and basement IeveI common azea).
The retail requires 99 (roimded from 992) parldng spaces (calculated at one space for each 280 square
feet); the storage requires 2(rounded from 2.1) puking spaces (calculated at one space for each 5,000
square feet); and the common requires 1(rounded from 1.19) pazking space {calculated at one space for
each 5,000 square feet) - for a total of 102 parking spaces.
BTBR requires 51 parldng spaces (roimded from 50.82) for the street level retail and 1 pazldng space
(rounded from i.18) for the basement level storage - for a total of 52 parking spaces.
The Grand Place pazking ramp contains 208 pazldng spaces on parldng levels Pl and P2. As shown in the
blow up of pazking level P2 set forth in Exhibit C the ramp also has two tandem pazldng spaces on
parldng level P2 - spaces that can now be counted under the new Zoning Code because we have a pazldng
attendant on duty at all times as required by Section 63.309. (We also. have two bike rack stalls but we
cannot count them because they raplaced the bike racks on the previous surface pazking lot.) In total, the
pazldng ramp has 210 pazldng spaces — 106 spaces to replace the pazidng sta]Is in the former sisface
pazking lot plus 102 spaces to satisfy the pazking reqnirements for the Grand Place development — for a
swplus of 2 spaces.
�c II ParldnE Lat
Back in 1996, you approved a site plan for the Vic II parldng lot (consisting of the "Ch�sch loY' and the
Miiton MaI11oY� for 178 pazldng spaces. See the correspondence and site plans attached as Exhibit D. •
In the summer of 2003, o� company increased the capacity of the Vic II pazidng lot by an addi6ona14
pazldng spaces by repositioning the Milton Street entrance and paving over an azea where a dead tree was �
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• located. See the site plan attached as Exhibit E. These changes took place on property owned by Milton
Mall LLC, an affiliate of our company. We have not biought this change to your` attention unril now.
We therefore have 4 additionai parldn�spaces in the Vic II pazldng lot that can be allocated to Grand
Place under the shared pazking provisions of Zoning Code Section 63206(g).
EQL Street Level Plan
The updated EQL street level floor plan attached as Exhibit F shows the following uses:
> Retail: 13,083 sf
> Mechanical: 340 sf
> Common: 807 sf
The retail requires 47 (rounded from 46.73) pazidng spaces (calculated at one space for each 280 square
feet) but the mechanicaI (rounded from .07) and common (rounded from .16) require no pazldng spaces.
This compazes to the 51 pazldng spaces required for the current BTBR retail and storage uses described
above in the Parldng Ramp section of this letter. In other words, the EQL uses require 4 fewer parkine
snaces than the uses of the current tenant.
Summarv
We therefore calculate that we have 10 addirional parkine spaces available for EOL as follows:
> Two surplus parking spaces for the 2 tandem parking spaces on parldng level P2 of the ramp.
• > Four additionai parldng spaces in the Vic II parldng lot.
> Four fewer pazking spaces required for EQL than BTBR
Tom, these 10 parldng spaces would support the use of 2,800 square feet in the basement level should
EQL decide to use that space for the ldnd of uses we discussed yesterday which may be considered retail
uses. We hope you agree with our analysis and can promptly give BTBR and EQL the go-ahead to
proceed with their proposed business transaction.
If you need anything further from BTBR, EQL or us, please do not hesitate to call. Thank you.
Very iruly yours,
James A. Stolpestad
Chief Executive Officer
Enclosures: Eachibits A — D
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Incentive parkina in rarn�
� 1009b or customers validated 1 hour — free parking
. tn two empfoyees use the tandem parking each moming — attendants hold the
keys
• Ai{ fiome ofFice employees park in ramp — expenses paid 6y— eqlife
• Hnliday promotions
. 5 free parking spaces for our employees
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• All spa/salon customers—free parking
Common Area Restroom
• Empfoyees—eqlife and Pottery Barn
• Delivery Personnel
• Maintenance personne!
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JUL.27'2005 14:54 651-699-6501
Summtt HIII Neighbors
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VILLAGER GOMMUNIGATION $0077 P.001/001
The Summit Ntft l�sociatlon (SHA} Dlatrict 16 Planntng Council, on the
recommendat{on of !ts Zonin9 and tQnd Use Committee, affer a
publlc hearing, ha� voted ta appeai the d�clston of CNy of St Paul
stafF to aliaw EQ Llfe to const�uct addttlona) spa spcce In the
basement aforage crea of the former 8ound To sa Read Bookstore
wlthout the needed addttfo�cl parking. Th�re is no fiurthe� spac•
avollobl� in the parkin� ramp.
Parktng atudles show a shortfall af 981 :pace: trarn Miiton to Qakland
she�h. Th1s particular intersectton is one of the worst tn the Summit Htli
area far tratfic and parkinq, EQ lffe, a dlvision of Beat Buy, Is
expecfing 400 cuatome�s an ap average Saturday.
Plan to atfend tht: hec�rtnA betare t�e 8oard of Zo�tln� Appeal: at
3 pm, Manday, August 1, 20051n Room 3SOS
(nerar Clty Council Chambers) City Hoil.
You may come and t�ttMy in person. Or yau may call, write ar small
yaur concarn: to �he Board o� �oning Appeafa b�fore noon Manday
Augu:# t�t vip:
Mr. John Hardwlck,
Cornmerce 81dg., 2^d floor
8 East 4+" Shsal. St. Paul, MN 5510�
john.hardwlcfc�ci.�tparul.mn.us
651-466-9082
�\
�
From: Jody Stan{ey [maiito:jody@grandave.com}
Sent Friday, Juty 22, 2005 1:50 PM
To: jody@grandave.com
Subject: SPEAK UP!
Speak u�!
�� .�, �
" ' ' Page 1 of2
There is a new business coming on the avenue wfio wiii need more parking spaces due to the
use ofi the their occupancies. According to cify law, parking spaces are determined by the
square footage of use. This new business wiii be exeeeding the amounf of paricing spaces
available in their area by tumi�g their (ower batfirooms into public use_ This wili aliow them to
use the rule of five_
The rule of five states:
• Sec. 63.204. Change in use within a structure.
When any uses which exist within a strucfure change to a new use, the following na{es shalf
appiy:
(a) Change in use requiring additional parking_ EacceQt when commercial uses are established
in the BC district or when paricing is specifically required for a conditiorial use permit, when any
existing uses change to new uses which require six (6) or more additional offi street parking
spaces than the existing uses, the six (6} or more additional spaces shall be provided along
with the spaces already provided. New uses which require five (5j or fewEr spaces than the
7/25/2005
❑
�
. a
Page 2 of 2
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existing uses shail be exempt from providing additional spaces. However, this exemption
provision shall be calculated cumulatively starting from adoption of this provision on January 3,
1994, so that no property receives a total exemption of more than five (5) spaces. �
(Rule of Five Parking Variance: If a new commercial use requires five or fewer additional
parking spaces, the business does not have to p�ovide additionat off-streef parKing.)
The GABA Board of Directors would like to know what your thoughts are on this_
Please let us know if you:
_ Yes, we feel this business should be able to use the rule of five.
_ No, we feel this business should not be awarded the rule of five.
tf you have furti�er commenfs you may CC me on a fefter, but you must put it in writing and
send it to tfie Zoning Administration, O�ce of LIEP, 8 4th St E Ste. 200, St. Paut MN 55101-
1024_ Letters must be received prior to Augusf 1, 2005 to be heard_ A hearing wilt be held on
August1st
Thank you,
Amanda Schultz, CFM
Executive Director
GABA/Grand Old Day
867 Grand Ave.
St. Paut MPt 55105
651-699-0029 (p)
651-699-7775 (�
�
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7125/2005
51.,C.�`T" 1'�" c�T�" �
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Presemed by
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CounciI�'ile# DD —.�i�}$
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R�so�ur�otv
Green Sk,eet #
Iteferred To Committee Date
1. WHEREAS, Exeter Holdings, L.L.C., in Zoning File 00-11815 J.1 a�nd pursuant to the provisions of
2 Saint Paui Legislative Code § 62.108(c), applied on February 21, 2400, for approvai of a site p1az� for tlae
3 puzpose o£ consisucting a three levei sttucture with retazl space on the first 1eve1 and with parldng on tY�e second
4 and third levels foz pcopezty owned by VicWri� Plaza, T,.L.C. an property commonly kzAOwn as 844 Crrand
5 Aveu.ue aud legatly desczibed as set forth in said wning file; and
6 WH�1t�AS, on March 10, 2000, the Saint Paul Planning Commission (hereinafter "Cpmmzssion"), after
7 havix� provided notice to affecCed pYOpezty pvmezs, conducted a publac hearing on a Coinmission staff
8 recommendation to approve the site plan apglication. At the eonclusion of the public heating, the Comznission
9 moved to cIose the public 1�eazing but altowed for the submission o£add'ztional wriiten comrnents until March 14,
10 2000 at which tune the matter would be taiten up by the Cozxunission's zoning Committee during the Zoning
11 Committee's regularly sckeduled mesting of Mazch 16, 20Q0; and
12 W73"�T�A.S, on Mazch 16, 2000 the Zoning Committee received the additional information submitted
� after tkxe Mazctz � 0, 200a public hearing. Hawever, due to the vplume of additianai informafion subznitted, the
Zoning Committee moved to re£er the rnatter without a recommendation back tq ttxe £vil Commission for
1S cozasid�xation at the Commission's regularly scheduled r�eetin,g of Mazch 24, 2000; and '
16
'S�V'�REAS, pu Ivtareh 24, 2000, the Com�mission, in its Resolutipn No, 00-25 which is incoGporated
F7 herein by referez�ce, moved to appxove the said application subject to certai.zx cond'ztions; and
18 W�.�kt�A.S, on�A.pril '7, 2400 and pursuanC to the provisicsns o£ Legislatzve Code § 64.206, a Ioca1
19 nezghbaxk�ood gzoup, Neighbors Opposed to Victoria Plaza, Inc. (�ereinafter Neighbor's Inc.), duly filed an
20 agpeal fxom the decision of the Commission and requestad that a hearizxg be held before the City Council for the
21 purposa of conszdering the actions taken by the said Commission; and
22 WT3�REAS, on Apri110, 2400 and pursuant to the proviszons of the Legis[ative Code § 64.206, the
23 Sumnxit Hill Association and the East Matl Associates (her�inaftex, respecttully, Sumxztit ki,i11 and East Ivt211) each
24 filed seQarate appeais fram the Commission's decision and eack� raquested that a heazing be held before the City
25 Council for the purposa of considezang the actions taken by Ehe sa�d Commission; and
26 W�12E,AS, on May Ib, 2000 and acting pursuant to Legislative Code § 64.206 -§ G4.2f}8 with uotica
27 to affected parties, a consolidated public hearing to hear eackt o£ the three appea�s was conducted by tJae Saint
28 Paul City Council (hereinafter "the City Council") where all interested parties were given an qpportunity ta be
29 laeazd; 2nd
�t�V�IZEAS, the Council having listened to the staterrAents made and having coz�szdered the a�plication,
� 1 the repozt o£sta£f, the record and zninutes, thE �esolution of the Plazuung Commission and its Committees naoved
32 on a 4-3 vote to �`ind ezzox by thc T'Ianning Commission and to graxtt tl�e various appea.ls based upon thC �
t J
L2f80'd d3I"1-�fltid '1S �Q 1,1I� �tr:80 S00Z-6Z-�flf
1 foliowing reason's which vveze reduced t4 writing a�d whzck wexe duI� publishe3� . �� "` ��
2 u�inutes on May 11, 2000; aad �. �e Council s of.�icial ac�p,��
3 W�EREA.S, before tt�c reasons for granxing tlxe said appeals wcre memoxialized in resoluti,on form
4 required by the Saint Paul City Charter, a serAes o�meetings was i.pitiated by the O�r,e of the Msyor betwee�
5�xete� �Ioldi.ugs, �Ieighbozs, Ine, Summit �t'iIt to detezmine wl�ether zevisions ta t,he s[te plan for the pxoject
6 could be agre�d upon. These meetings were aiso attended by Cit� sta¢, and
� �N.�A.S, the City Council was advised by Exeter I�oidings, I�leighhors, Inc., azzd Stux�uvt Hill that
8 revisions ta the site �or fhe project laad been agreed uppa bets�,� �� ���s aud tk�e ternis of sncb;
9 agreemcnt were t�ansmitted fo tUe Ciiy Counc�.. Easf Mall had noT agrr,ed to flze site plan revisiozts; and
I O ��� �e Couneil of the City of Saznt Paul reeqzxsidered its pre decision to grant the appeats
T 1 by Neiglxbors, Inc., Suuamit T-Till and East Ma11 given fhe repxesentatzon by Neighbars, Izzc. and Swiunit HiI1 that
12 fhhey vs+ere iz� agreement wifh the revisioris to the site piau for tkie development pzoposed by �xeter Hoidings' at .
13 the sautltvvest cpzner of Grand and V ietozia; atxd
� 4 '�'���, � Jv7y 12, 2000, the Counci.l of the City o£ Saint Pau�, moved to deay in all things t.h�
f 5 appeals by Neig}Lbolrs, I�•, Suznmit �Si.11 and East Mall acid to affirm the site planrontained in PI , nina
1 b Co�ission, resolutioa Qa-25 and fo adapt the said �ssolution of the Plantzing Commzssion as ifs osvn by �
17 reference ezcept to fhe extent modif ed by the revisions to the site plan agreed. to by gxeter I�o�g� '�'�z
1 S Inc., and Sizm�zui Hi�.; and � .
� 9 R'.�REA.S tli.e Councz4 of the City o£ Saint Paul, actzng purs �nt � a � o ri�, y �� �der Saiut Paul
20 I,egislative Code § 6q:.2p7 and upon the revisions to the site pfan agxeed to by Exetez Holtiings, Neighbors, �
? 1 aud Summit I�ll, ordezed in Council gi�e No. 00-598, adopted 7uly 12, 2000, that Planning Gom�igsion
�.2 resolution Ofl-25 gtanting appioval to pexmit coizstruction, of the devefoptnent at 860 Grand A,venue be upheld
23' subject �o tpis zeyisions'tcs'�he sit� �lat� agreed to by Exeter Haldings, �eighbors Inc., aud Sumiuit HiII as
24 contaiued in Counci� �'z1e No. 00-598; ab.d
� 'G'���AS, Council Pile Na. d4-598 as adopted on July I2, 2Qp0 was duly �deii,wered to tlxe Mayor of
26 the City o£ Saint �aul fox approval; and
27 �'V�ER�A.S, on July 24, Zb06 and pursuan,t }p gainf'paxil City Chart�x § 6.09, the Mayor vefoed Counail
28 File No. 00-598 and, pursu�ut to Saint Pau1 Ciry Ct�arter § 6.08, communicated,his xeasons for the veto to tlie
29 Couucil; aczd �
30 VYT3ER�A,S, o�t Augsist 23, 2000 and �SUrsuant to Saint Paui City Chaxter § 6. � 0, xhe Couztcil of the City
31 of Saizzt Pau1 moved to reepusider the mattet of the Mayor's July 24, 2000 veto of Councit Fite No. 06-59$; and
'' ���EA.S, the Ccfuncil o£the City of Saint �aul kias 6een advisc:d that eertain revzsions to the sife pla�
33 agproved by the PlanrniA,g Conuuisszon b.ava heep pxo�osed by the devetoper and the xteitghbors_ 'i'b.e Councii,
34 haying lzste�o.ed to the statem:ents �ade at the public he�r'vzg, having r,ons�dered the origi.b;al applicatxon appxovcd.
35 by the G4ry in.eiudiz�.g the repaxt of staff, the record and minutes and tl� adopted Planuing Commission resolu�on
36 2nd�having caqsidexed ti�e Mayor's sta�r�ent of reasons in his veto message and giveu the new rewisions to the
37 site plan �nds that reeons�decation o£ Council Pile No. OO�S98 is appropri,ate; �
38 NOW, '�RE�'ORE, �� 1T �,SOLVED, that the Covncil af tbe City of Saant i'au1, by tk�is �
39 su6stitu2e xeso�ution No. 00-598 and putsuant to its azc�oxity to reco$sidar vetoes as pzbvided i� Saint Paul City
40 Charter § 6.10 and acting pursuant to autbozity granted undet Saint �aul Legxs)ative Code § 54.247, hezeh�
� �
LF�60'd d3I'1-�fltid '1S �Q .11I� Zb:80 S60z-6Z-�flf
an7ends planzai,ng Coznmission resoIution 00-25 whicfi arzted a Q p�''S`3 �
gr pproval to petmit construction o£ the .
de4;�lopment at $60 Grand Avenue by modifying as follows the co�di#io�,s of appxoval set forth therein;
fi L " �'
Y �
� � � � � e.
�
� 1_ T�te retail, and parking development at 86Q Grand Avenue (hereinafter, the "Vzc I grojeet") shall cansist
of hasement storage, street level zetail and commari areas aud iwo levels of structured.parking above. the retail;
i subject•to khe conditions set fortl�-in paragraph 3 betow. 'I'he structure wi3,1 zeseznbie a two-stozy buzlding. The
7 axterior of the structure s6a11 he traditional in design with facades of high quality, brick and shali have stone
3 accents aipng Crrand and Victozia. Spamdrel glass wiindows slaall mask tke first level of pazking. The bus shelter
� will tse relocated to either ths Milton Ma11 east parking lot or ta anothes location as approved by the City.
10 2. The Vic I project will have at least 208 parking spaces. Valet parking may be use@ to add more parking
1 I spaces during periods of peak parldng demand.
12 3.
13
1a
IS
16
i7
1$
19
20
21
�
23
24
25
26
2?
28
29
3D
3I
32
33
34
35 4.
Tk�e Vzc I project shall be redmced un sca(e by approximately 20% through the following means:
The �Vie I project shall be reduced in height by re-enginearing the method o� construction.
Developer has agreed to thxs despxte the increase in cpst Re-engineeriug the znethod of
consR uctipn will lower the fop of the ugpez' pazking levet &om 31 £eet iu fhe original site plan to
27.5 feet ia this zevised plan for a reduc�ion of 3.5 feet. �te-engineering the method of
construction will lower the parapet height from 35-38 feet in the original plan to 3],.5 £eet zn tJ�e
revised,plan for a reduction of 3.5 - 6.5 £aet- These reductions will m,ake t}ae scale oFthe Vic I
�rojeet more compatibie with nearby structures at Grand and'Victoria. For example, the parapet
heigk�t of the West Mall is 32.5 feet and rhe parapet height of the apartment buildings to the west
of the pzojeet is 37 feet.
The elevator and stait towers for the Vic I project shall be moved Yo tkie center of the site, so as to
elim.znate these buitding elements £c4zn beix�g visible at street levei.
Deve�oper has agreed ttiat the ai.ley setback s1�at1. be increased fram 2 feet to 14 feet, even though
no set6ack zs zequired under City reguIations. 'This incxeased set�iack will be aceom�lished by
narrowing the drive lanes �itlun thE parking structure to the xnaxununu axtez�t pezzzxitted hy City
requizements, and by reduczng street leve� k�oor area. However, the setbaok cannot be :Fuxtb,er
incxeased without iosing one entue xow o�parking•on both levels, which would elirrv.nate
approxunate�y 46 parking spaces, '�he inorease in alley setback will bring the Vic I pzaject more
in tine with the alley setbxcks for nearhy stzuotures. Foz instance, the alley setback foz tkte
apaxt�ze�tt buildings to the west of the project is 19 feet. Within Ltt.e Vie T pcoject atley setback,
spzuee trees, at least 6£eet high, shali be planted (except #'or an enclosed trash dumpster and a van
accessible handieapped p$rkang sta11 adjacent tp Victoria) for screening/so�tenizig pur,poses. The
trees shall be xnaiz�taxned andlor xepl:aced as necessary xx� ordex to preserve theix purpose.
'Z1i,ere sha11 be no tenant loading ot unloading in the af 1ey except £or trash pick-up.
36 5. During construction of the'Vic I project, tb.e City �Z] per�nit customer par�cing an the north side o�
3'7 Lincalz� A.'vezxue between Avon and Chatsworth during weekdays between 1.1:00 a.m. and 6:00 p.m.
38 fi. Addztioz�al parlang is desixable in the CnandNictoria neighbozl�ood. The develdper proposes a second
i 9 4ff-site parking facility, to be kitown hereinafter as the "Vic ZT. pzoject," for the purpose of providing additional
4d pazking i.n; t�.e z�eigl�borhoad. The Vzc Ii projeet will involve co�sh�uction o£ a one-level parking deck a6ove an
41 existin� surface pazking lot. Tk�:e Vic TZ project will provide approximately 264 parking sgaces (including
� ,'� —/
Lti.�Oti•d d3I�-�11t1d '1S �0 1�1I� ztr:se S00z-6Z-'lfif
I approximately 90 spaces oh the ozae-Ieve1 parki�zg deck). T'he V1c TI project wi12 result in a net gazn o�� � 9
2 approximateFq 88 parltzng gpaecs over tlxe p:resen,t 172 parking spaces. �ra[et �azking �a be used ta provzde �,
3 add'zt�onai parlcing spaces at the Vie ZI project durzng periods of pealc �azlcing de� ��.
� ._ : ,_ s�,; �, �
4 7. l�rovided that tlie Vic 7I ptaject eozi4plies wittx �if,y Specxaj cflndxtion uSe pezmit and Sife�pFan regulatipz�
5 and` the reasorxable recomiuendatio�s of Ciip staf�, sta�pv,Ril recomzxzend variances from the reac yard setback, ,
b side yard setback, and 30% lot coveraga xafio requirements. �
1�
lf
I2
i3
14
15
16
17
8. ' Via a segarate agreement and only foz th� putpose of znemorializing the spirit of compromise iu this
mattez whicTi lead to tbis revised site plan approval., the beveloper gttarantezs to pTOCeed vrith constcuction of
the Vic IZ pzojecT, provided t�at it eztters int4 &n agreez�ent with Saiak Paul's Unitad Church of Ghrist wtuch
owz�s the easteriy iwo-thirds o£ the existing'Vzc II pazkzng lot and is not pievented froza conshucting the pzoject
by causes beyond its cozt�ol. In eXChange, flxe City, suhject ta the City apgroval pracess, will loan tfie Deveioper
$1,500,000 foz the Vzc II project tuider t�ie following terzns: th,e Ioan, pzin�ypyk will be due zn 3Q years; intezest
wiIl acczue at the rate o£2% per annurn paid iu,ontlslp; assignmez�t y+il( be fu11y pernxitted; disbursement will take
Qlace during construction o£the Vic II pmject; the pmject improvements and third paxty contracts wilt secure tb.e
loan._ Qf this $I;SOO,OQO Ioan; $1,040,000 wi11 originate from tha STAR pxogcazza, subject to flze standard STAR
approval process; and $SOO,U00 will origiz�,ate frozn the Parkin.g a�d �'ransit Fund, subject to the standard City
CoLincil approvai proces,q,
1$ 9. _ Tkxat the tenus and conditions of this pmcess are subj ect to tlae final appzovat o�'the site design ptans by
19 Cit'y staff. � '
ZO A.1�tI3, �£ T`� k`AYALLX I�`SQI.,'VED, that the Gity Cleck shall mail a copy a£this resolution to
21 Neighho�'s Opposed, East Matl passociates, Summit Hi11 Assoeiatioa and Exeter �ioldings, the Zoning
22 Adtt�zmzstratox and tlae Plan� Coznznission. .
�
Requested by Depar�ent of:
$Y-
Fosn Appr by City Attomey
BY: `�'�4"" G.IL/M.w�—.. 8 f Z.T/ a'D
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.. �.i� �. ��.:�/�
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Approved by Mayp� for Submissioa to Conncil .
Br- �
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d3t�-�ndd •ls �o ur� �v:se s0ez-6z-�nr
AdoptedbyCouncil: Datc '3 abbQ
Adoption Certified by Council Secretary
o���°��
BOARD OF 7ANING APPEALS STAFF REPORT
TYPE OF APPLICA'I IOPI: Adminishative Review FII.E #: OS-128190
Al'PLICANF:
HEARING DATE:
LOCATION:
Swamit Hill AssociaYion
Augpst 1, 2005
FTiDZsI� .0 : i:�.� r
LEGAL DESCRIPTION: SUMMIT PARK ADDITION TO ST. PAiJL, IN RAMSEY
COIJI3TY,MINNESOTALOTS 1 THIZULOT 6 BLK23
� 30SEPH P DYSARTS RE AND IN SD SUMIvIlT PARK ADD
LOTS 3 T�IRi) IAT 6 BLK 23 -
PLANNING DISTRIGT:
PRESENT ZONIl�IG:
REPORT DATE:
16
BZ; SIGN-GRAND
July 25, 2005
DEAI3LINE FOR ACTiON: September 4, 2005
ZONING CODE REFERENCE: 61.701
BY: Tom Beach
DATE RECEIVED: 7uly 6, 2005
A. PURPOSE: An appeai of a defeiminalion by the ZolliIlg Administrator regazding parking
requirements for a spa proposed to go in the basement of the Grand Place retail developmen�
B. STTE AND AREA CONDITIONS: The site is located at the southwest comer oFGraud
and Victoria. Most of the site is occupied by a retail building with two-levels ofparking over
the first floor.
An apartment building is located immediately to the wesk Retail and other comme�ial uses
are Iocated to the east and north on Graud Avenue. Single-family residential is located to the
south oa Lincoin across ffie alley.
C. FIPIDINGS:
i. Ia 2U01 the City Council appmved a site plan for tbe retait building at the southwesf
corner of Cttand and Victoria
The building is carrentty used as sfiown on the approved sita p1an: reta� ancl common
space on the first floor, two-levels of pazking over the retail space and storage apace in
e.�taa
"l �
��- ��;
File #OS-128190
StaffReport
9�e basemen#. These uses req� a total af 208 off-str�et parIang spaces. The site
provides 208 off-street pazldng spaces.
2. One of tfie current retail tenaats, a book store, is leavmg. A new retail benant, g,QLife,
wanYs to move iato the bookstores' space on 8ie first floor and coavert a portion of the
basement from stozage to a spa, EQLife sells heatth relate3 products and provides
services sach as fiau and nail pre and massaga,
3. Zoning staff reviewed EQLife's proposal and detecmined that the pmposed changes meet
the requirements for off-street paz�ng and is p�mitted byzoning. (See attached letter
dated 6/2?/OS�.
Staffbased its det�;n�fion on the following:
a The floor plans submitted by EQLife show 2,138 square feet of floor area in the 7 �
basement being converted &om unfinished storage to a sQa. A spa would be q�
considered commerciat space in a multi-use retail center. The parldng requi�mwis
for commercial space in a multi-use retail center is one off-street pazking space per
280 square feet. The parking requirement for unSnished storage space in the
basement is oneoff street P�nB sP�e P�' S,� s4� feet.
Therefore, tlris change of use Srom storage to spa wouid increase the pazking
requirement for the properiy by 7.20 off-shcet paridng spaces.
b. EQLife also submitted a floor plan showing that 614 squue feet of hallway and
baihmom space on the &rst floor would be �configured so that the space could be
accessed itom a shared hatiway and nsed by empIoyces one of the adjacent tenants in
additioa to employees and cvstomeis of EQLife. This space was considered part of
the book store and coimted as commercial space for pacidng recluirements when the
site plaa was approved ia 2001. .
Reconfi8uring this space would allow it to be considered common space in a multi-
use retail c�ter instead of commerciai space in a multi-use retaii center. The parking
requirement for common space in a umifi-use retail center is one off-street parking
SPace Per 5,000 squaze feet. 'Fhe parking requirement for commerciai spaces in a
mutti-use retaii center is one off-street Pazidng space per 280 squaze feet,
Tlris change of use wouid reduce the parldng requirement for the property by 2,p'7 off-
streetparking spaces.
Page2of 4 � �
��-���
File #OS-128190
StaffReport
Classifying the ieconfigured bathmoms and hallway as connnon space is consistent
with S6ction 63.203 of tfie zoniag code wlrioh states; `°Iye p�angiequirement for
each nse ia amulti-tenant building shall be detemuned based onthe perceatage afthe
8mss floor area usedby each nse in the mntti-tenant building. Arsy shared�pace, such
as mc airiwn, common are4. utility area, wif'mished bcrsernent, public or shared
restsooms, staircase or elevator area shal! be consideret� forpurposes of
determininSP�'�STe�iuir'ements, the same as storage areas. 135es with access to
these shaced spaces sball be �sponsi'ble for providing the required paddng for these
spaces:' [Italics added]
a Thenet change in required parkjng for the changes proposed byEQLife would be
513 off-street Parrlang spaces (7.20 space.a - 2.07 spaces.)
d� Seetion 63204.a pmvides a limited exemption from parldng reqnirements where the
use of a building chaages. It states "VJhen any existing uses cytange Yo new uses
whicfi require six (� or more addihonal off-street parldng spaces thaa the existing
uses, the six (� or moie additional spaces sfiall be provided along with the sgaces
��Y P���- New uses which require five (S) or fewer spaces than the exrsting
uses shalt be exemptfrom providing addiGoruil spaces. However, this exemption
provision shall be calculated cumulatively starting from adoption offlus provision on
3annary 3, 1994, so that no pmperly receives a totat eicemption of mote than five (�
spaces:' [Italics addedj This secfian is refeQed to as the `4vle of 5".
The changes from abook store to EQLife (including the proposed spa space in the
basement) requires 5 parldng spaces. 'I'he `4nle of 5" exemption has not been used for
this site before. Therefore, this project qualiges to use the `Yule of 5" exemption. If it
is used here, it could not be used again in the fatura_
4. The Summit FIilt tSssociation appealed the Zoning Administrator's decision on Pazking
for EQI ife. (See attached lettet dated 7/5/US�. They claim that:
a- `°� P� P�rts to convert carrent [bookstore] reshoom [oa the first floor] into
common space wlrich is a fallaoy ... The 614 squaze feet of [twokstore) restroom
space was neyer considered `retail space' ia the ... compromise permitting the .
conshvction° of this development
b. `�'he rnte of 5 is being used incoxrectty,"
c. The change in nse wiIl increase parking demand and h�a "EQLife infoimed tfie
SIiA, (3uu�mit H'ill Aasociatioa) that their Saturdaybusiness will d�aw appmximately
r.�sota ��
���: ��
File #OS-128140
StaffReport
40Q customers based on their carrent location m Ricfifield. In addiSion, SHA and the
Citylmow there is at least a 1,OOQ-space parldng deficit along Crraad Aventie aad that
tbis particular intersectiori is oae of the woist m[the] S�mit E�iII azea for traffc and
Parl¢ng."
E. CORRESPONDEI�TCE: Staffhas not received aay coa�espondence siace ffie appeal letter
from Svmmit H'ill was sabmitted.
F. STAFF REC014Il47ENDATION: Staff agrees with the gummitFtili p�soci�ion that there
are serious paz�Cing and tra�ic issues on Grand Avenne. However, the zoning cale allows
pad�g to be deteffiined differenfly for restrooms that are shared as opposed to resfiaoms
that are part of a single tenant's space. The zoning code also allows an exemption for
changes ofuse whea the differenc�between tfie old use and the new use is five oc fewer
spaces- If a proposat meets the code requiremeats, staff has no discretion to deny a pemiit
even if there aze serious pazking and traffie issues.
Therefore, based on findings 1 throu� 3, staffrecommends that the goazd af 7
Appeals uphold the determination thaY EQLife's proposal meets the rules goveming padang
for common space in multi tenant bwldings (Sedion 63203) and changes of use (63.204.a)
and deny the appeal by the Summit H'ill Association.
Y+�e 4 of 4
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File #OS-128140
Resolution
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IdOW, THEREFORE, BB TT RESOLVED, that Saint Paul Boazd of Zoning Appeals hereby finds that the
Zoning Administrator's determination regarding off-street pazldng for EQLife Crrand is in error and
upholds the appeal of the Sumnut Hiil Association for properiy at 870 Grand Avenue; and legally
descnbed as Summit Pazk Addition To St. Paul In Ramsey County, Minnesota Lots 1 Thru Lot 6 Blk 23
7oseph P Dysarts Re And In Sd Summit Pazk Add Lots 3 Thru Lot 6 Blk 23
MOVED SY: Bogen
SECONDED SY: Mo�con
IN FAVOR: 6
AGAINST: i
MAILED: Augast 4, 2005
TIl1�IE LIlVIIT: No decision of the zoning or planning administrator, planning commission,
board of zoruug appeals or city conncil approving a site plan, permit,
variance, or other zoning approval shall be valid for a period longer than two
(2) years, unless a building permit is obtained within such period and the
erection or alteration of a bnilding is proceeding under the terms of the
decision, or the nse is established within such period by actual operation
pnrsuant to the applicable condirions and requirements of the approval,
unless the zoning or plauning administrator grants an extension not to exceed
one (1) year.
APPEAL: Decisions of the Board of Zoning Appeals are fnal subjeet to appeal to the
City Council within 10 days by anyone affected by the deeisian. Building
permits shall not be issned after an appeal has been filed. If permits have
been issned 6efore an appeal has been filed, then the permits are suspended
and construction shall cease until the City Conncii has made a final
determination of the appeaL
CERTIFICATION: I, the undersigned Secretary to the Board of Zoning Appeals for the C�ty of
Saint Paul, Minnesota, do hereby certify that I have compared the foregoing
copy with the original record in my office; and fmd the same to be a true and
correct copy of said original and of the whole thereof, as based on approved
minutes of the Saint Paul Board of Zoning Appeals meeting held on August 1,
2005 and an record in the Office of License Inspection and Environmental
Protection, 8 Fourth St. E, Saint Paul, Minnesota.
SAINT PAUL BOARD OF ZOIVIIVG APPEALS
� � �� �
,
Debbie Crippen
Secretary to the Board
��
P�ne � nf �
� dr � � i � ��+
4 Main Reasons District 16 Plannina Councii
obiects to staff sugaested parkina arran�c ement �
for EQ Life at 870 Grand Avenue
1. Intent of the Rule of 5 is to allow the reasonab(e reuse of existing retait
spaces, particularly in older buildings that have limited off street parking.
in the case of EQ Life, the Ruie of 5 is being used to attow a 2,138 sq ft
expansion for a Mealth spa into a basement area previously used and
described in the original sife plan as storage space. The Rule of 5 was
never intended to facilitate expansion of business space.
2. Providing secoRdary hail access to EQ Life bathrooms does not justify
reclassification as common area. All other building tenants have
bathroams. The parking demand wilt not be reduced 2.07 spaces by
unlocking doors for the bathroom.
3. Parking for the storage conversion to a"spa" should be catcufated as a
spa service use, not as multi-use retail. �
Sectlon 63.2E37 requires parking for "Sports ciub, health spa, karate club"
at 1 space per 260 sq ft plus 1 space per employee.
"Health spa" : 2,138 divided by 260 = 8.22 + 1 space per emalovee.
Spa service has higher employee need than retai{.
4. The Rule of 5 can only be used once per property. If the Rule of 5 is
used naw, it c�n not be used again for any Grand P1ace tenant, thereby
limiting future reuse options.
5. Partcing calculation summary...
Staff caiculation is
2,138 divided by 280 = 72, minus 2.07 for bathroom access = 5.13
District 96 calculation is:
2,138 divided by 260 = 8.22, plus number of spa employees = 8.22 +��
(Do not subtract 2.07 for bathroom access} C� �
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To: Summit Hill Zoning and F,and Use Commiitee Members
I will be tmable to attend the upcoming ZLU meeting on Thuts., Juty 28, 2005. I am
sorry tl�at I won't be able to hear the presentation and comments about the zoning
variance request for 642 Lincoln Ave. I have looked at the properiy and ta3ked to some
neighbozs who live on thaY block. Based on the materials in the ZLU packet, my
observations of the property, and some conversations with neighbors, I oppose the
vaziance.
First of all, the e�cisting side yazd is not out of place on the south side of Lincoln In fact,
I think the south side offers green space relief frflm the densely developed north side af
the street (The north side of Lincoln was developed more densely than the south side).
There are 2 other properties (one to the east and one to the west) with large side yards,
not including the 2 corner 2ots. Even if the properiy owners re-landscape with grass, the
side yard wil� not be out of place in Crocus Hill.
Secondly, I have seriaus doubts that a newly constructed home wili fit in and/or enhance
the neighborhood, especially if it is a one story house. (I am unaware of the plans for a
new house on the property, but would assume that it will be one story or have an elevator
� for handicapped accessbiliiy). New construction of Victorian houses rarely, if ever,
matches the architectural quality of the past.
Thirdly, that particular block of Lincoln Ave. already has parking issues. There is a miY
of single family homes, apartments, condos, and duplexes. The off street pazking
opportunities appear to be maxed out. Since there is akeady a double garage on the
existing side yard, it doesn't appear that there will be any increase of off sireet paridng
available. Adding another residence will only e�r.�rbate the parking problem on the
street.
I understand the desire of the properly owners to split theu properly and build a new
home to live in, rather than leaYing the block that they call home. However, if it is due to
handicapped accessib�lity, why not move to the first fioor of their existing home? While
this question is personal, it l�as been raised in the argument for the variance. It is the duty
of the ?�.0 Committee to determine what is best for t�e neighborhood in light of the
zonin� c,ode. In this case, it appears as if the owners stand to benefit and profit
tremenclously from a variance request that is not in the best interest of the neighborhood.
Respectfiilly submitted by Linda Winsor, member of the SHA ZLU Committee.
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Subj: Re: AU Meeting - Thursday July 28 - �
Date: 7/26l2005 3:49:28 PM C�trai Daylight Time
From: TR Wichman
To: M1cFlahaven
CC: barreraed�a hofmail com dddobson1 CcDyshoo.com, marciaodman a�edinarealty co�
shannanofoole2�comcastnet, drafhman�ddlrgroup.com, RickJSmiFh. ewefe( _ mac.com.
jwinsorCa?_yahoo.com, cdsmith aEum.mit.edu summithillC�Dvisi.cam, jimhCrapro-�s.net Sharbo �Poqp.net
I will not he able to attend.
As outlined in our proposed DiStritt 16 Plan, the thirtgs Chat make our neighborhood livable artd unique
include the hlstoric qualities and styte of the homes elong wi� some open space (even if private). Double
lots or 1-1/21ots are desirable in the neighborhood to promote retention of this mix of open space and
buildings that add to the neighborhood cherecter.
I have reviewed the material and woutd vote tn deny the variance based on the fotlowing comments:
1) Contrary to tfie petitioner's narrative, the parcei is not large, especiaily when compared to "suburbad'
lots. The maintenance difflculty is not a valid argumerrt or hardship.
2) I�ndscaping or plant and lawn removal arguments are not valid. The extra fot space couFd be
designed as a very nice garden which complements and enhances the house on parcel i. There are
numerous exampie of doubte tots or 1-1/2 lots in the neighborhood in-whiGh-this--has-beeq-done.--- -- -----
3) I have concern over the potential appea2nce and compatibility of the proposed new house if 1-story
(accessibility) is the primary goal. There are bad exampies of infili "rambler" style housing in the
neighborhood which of course we would wartt ta discaurage. As Linda pointed out, not marry vacant lots
have new Victorlan style homes buiit due to the cost I would be very wary of what would be built here. •
4) Restoration of the existing house ort parcel 1 is NOT mutually excfusive based on having the Fot sp{it.
'fhe so-catted "topsidedness of the house is due to overgrown and inappropriate use of plant materia! used
on the east side and iack oE balanced planting on the west, NOT due to due to "eucess land" from Parcek
2. The Owner shouid be commended for wanting to restore the house to its originai condition, but the
arguments posed are not valid.
If the variance passes, i suggest that language is inserted to have the Owners work with the SHA or ZLU
regarding tfie proposed design. Perhaps they couid be invited informaliy to present the proposed pfans fos
the hause.
Also, keep in mind the foliowing. I wouid argue that variance could be denied based on criteria listed
below in (b), (d) and (�.
Todd
Sea 61.607. Variances.
The boazd of zonir� appeals shaR have the powerfo graM variances from tfie s3ric! ertfwcemeM of fbe prov$ions of iiris code upan a Rndng
that
(a) The property in qu�4on cannot be putfo a reasona6te �e under Me sfrid provisio� offhe �rode;
(b) The pfight of the fandowneris due to dreumstances uNque to Ne property, arW these dreumsta�es were not created bY the tandowner, �
(c) The proposed variance is in keeping wlth tfie spirit and irReM of the code, and � co�is[eMwith ihe health, safefy, comfort, morais and 4� •
welPare of the inha6ihanis of the aty; li L
(d� ihe proposed variance vnll not impefr an adequate suppiy offight and air fo adaceM pmpeity, nor wfi it aiferthe essentia! character of fhe
surtaundng area or uer�somably dminish esYa6lished property values witlria the surroundmg ar�;
Tuesday, July 26, 2005 America Qnline: MctlaUaven
Page Z of 2
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. (ey 7f�a variance, it gra�rted, would not pefmit afry use that is not permiRed under the provisions of the code for the properry in the dstrict where
the afieded lasid {s tacafed, narxwutd itattes or changa the zoning d+slriGdassfication of tNe property; and
(� The request for vadance is not based primanly en a desire to inaease the
vaive or income pMecdiai of the parcel af lartd
In gran6ng a variance, fhe hoard sF�l state Me groun� upon which itlustifies the granting of a variance. Hardsf�ip as dessai6ed in thE fi�ng
set out in subsection (a) a4we shall indudethe need for aceess to direcfsuNightior sdar energy systems
McFlahavenC�aoi.com wrote on 7/18i2p05, 5:00 PM:
As I announced at the last board mceting, there will be a meeting of the Zoning and Land ITse Committee at 7 pm on
Thursday, 7uly 28th to discuss the request for a side yud vaziance at 642 Linco]n in order to split the lot which alresdy has a
duplex and add a new singie family consWctioa 'Fhe hearing on this issue wilY be AugusL ist
Diane will be mailing the mateiiats to you and postcacds to the neighhoss as ususl.
P(ease let me know if you canaot attend as it is very important to have a quotum.
T7ianks!
Maureen
•
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Tuesday, 7uty 26, 2005 America Online: Mcflahaue�
�i .� .. � �
� � � � �
CTTY OF SAINT PAUL
Randy G Kelly, Mayar
r�+�
JllIlO 22, 20�5
Jim Stolpestad
Exeter Realty
332 Minnesota Street Suite W 1710
Saint Paul, MN 55101-1329
RE: Pazlflng for Crraud Place at 870 Grand
Deaz Mr. Stolpestad:
OFFICE OF LICENSE, INSPECTIONS AND
ENVIliONMENCAL PROTECTION
Janeen Ros¢s, Director
IAVYRYPROFESSIONAL BL/lLDING Te[ephone: 651-2669090
8 East Founh Street, Svite 200 Fasimile: 65I-266-9124
SainiPaul Minrsesota5510 Web: www.cistpaul.mn.us/fiep
The purpose of this letter is to review how zoning requirements for off-street parldng apply to
EQLife's proposal to move into Grand Place.
Current parking nnmbers •
The current uses in Grand Place require 208 pazldng spaces._Crrand Place provides 208 off-street
parking spaces. So there are currently no additional parlang spaces available that can be used for a
change of use that zequires more pazking than the current uses.
EQLife's proposal
EQLife wants to move into the first floox retail space formerly occupied by the Bound To Be Read
book store and use it as retail space. They also want to convert some basement space that is
currenfly used as storage into a spa.
EQLife has submitted a floor ptan showing 2138 square feet of ftoor azea for the spa. This space is
currenfly used as unfinished storage space (which requires parldng at the rate of one off-street
parking space per 5,000 squaze feet). As a spa it would be considered commercial space in a multi-
use retail center (which requires one off-street parldng space per 280 square feet). This change of
use would increase the pazldng requirement for tUis area by 7.20 off-street pazlang spaces.
EQLife has also submitted a floor plan showing that 614 squaze feet of hallway and bathroom space
on the &rst floor reconfignred so that the space could also be accessed from a shazed hallway and
used by the adjacent tenant. This would allow the space to be considered common space in a multi-
use retail center (wluch requires pazldng at the rate of one off-street pazldng space per 5,000 square
feet) instead of commercial space in a multi-use retail center (wluch requires one off-street parking
space per 280 square feet) and would reduce the pazldng requirement by 2.07 spaces.
Therefore the net change in required pazking for the changes proposed by EQLife would be 5.13 off-�
straet pazking spaces (7.20 spaces - 2.07 spaces.) ��
�
�
Parl�ing for changes of nse
The zoning code provides a limited exemption from pazldng requirements where the use of a
building changes. It says "When any eusting uses change to new uses which require six (� or more
additional off-streeC parldng spaces than the existing uses, the six (� or more additional spaces shall
be pzovided along with the spaces already pxovided. New uses which require five (5) or fewex spaces
than the existing uses shall be exempt from providing addirional spaces. However, this exemption
provision shall be calculated cumulafively starting from adopfion of this provision on January 3,
1994, so that no property receives a total exemprion of more thau five (5) spaces." (Section
63.204.a)
The regularion does not address situations where the number of spaces falls between 5 and 6. °
However, the zoning code says "when units or measurements determiuing the number of required
parldng spaces result in the requirement of a fractional space, any fracrion up to and including one-
half (1/2) sha11 be disregazded, and any fraction over one-half (1/2) shall require one (1) parldng
space:' (Section 63.206.b) Therefore, staffrounded the 5.13 parking spaces mentioned above down
to 5 spaces.
Stacked parking spaces
There aze currently two stacked parking spaces in the ramp. These parking spaces were not counted
as part of the 208 parking spaces that are provided. You asked if these spaces could be counted,
bringing the total number of spaces provided to 210 spaces.
The zoning code allows stacked spaces in lots with attendants. (Section 63.309) However, in order
for the City to count these spaces, the attendant would need to have the keys to the cars in the
stacked spaces so the attendant could move the cars if needed. 5ince this would not be the case here,
these spaces cannot be counted towazd meeting the pazking requirement for the development.
LI�P's determinations
The floor plans submitted by EQLife show 614 square feet of retail space being converted to
common space on the first floor and 2138 square feet of unfinished storage space in the basement
being converted to a spa. This change woutd require an additional of 5.13 net new off-street
parking spaces and therefore it is permitted under Section 63.204.a
The exemption provided by Section 63.204.a is cumulative and no additional exemptions can be
granted in the future for the Grand Place property.
Appeals
Tkus decision can be appealed to Boazd of Zoning Appeals by any interested pariy. Appeals must be
filed within 10 days of the date of this letter. There is a fee of $435 for filing an appeal.
If you have any questions, please contact me at 651-266-9086 or tom.beach@ci.stpaul.xnn.us.
• Sincerely,
Tom�
Zoning Specialist �J �
cc: Sumxnit Hill Association "
TnAA RnhrPr F.nT,lfO H:\CONIMON�SitePla¢�Bigprojuts\00118151granvic�parkinglettetjune.wpd
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Paeking provided
101 2"'floor
107 3`" floor
208 .
2 spaces for bike rack
1 outside hdcp stall (is it there?)
Parking required by existing
106 plus 2 bike racks to replace oid parking lot
7 / 280 for retai!
1l5000 for unfinised storage space in the basement and common space on any floor (shared
halis, bathrooms etc
Parking required for proposed
1. Overall description of business on both floors
Classes for yoga etc
�
2. First floor
Cafe to remairt (never approved for more than 12 seats and 75 sfl
1269 sf of storage to be created on main ftoor (counted as retaii for parking) •
3 Basement
955 sf for lockers (normally 1/260 but 1/280 in mixed use)
938 sf manicure and pedicure rooms (normally 1/250 but 1/280 in mixed use)
671 sf for manicures (normally 1/250 but 1/280 in muced use)
2564 /280 = 9.15 spaces required
5
� •
Chapter 63. Zoning Code--Regulations of General Applicability Page 1 of 1
Sec. 63.204. Change in use within a structure.
• When any uses which exist within a structure change to a new use, the following rules shall apply:
(a} Change in use requiring additional parking. ExceFt wfien commercial uses are estabfished in the BC
district or when parking is specifically required for a_onditional use permit, when any existing uses change to
new uses which require six (6) or more additional off-street parking spaces than the existing uses, the six (6}
or more additional spaces shall be provided along with the spaces already provided. New uses which require
five (5) or fewer spaces than the existing uses shall be exempt from providing additional spaces. However,
this exemption provision shall be caiculated cumulat!vely starting from adopGOn of this provision on ]anuary
3, 1994, so that no property receives a total exempt on of more than five (5) spaces.
(b) Change in use requiring /ess parWng. When any zxisting uses change to new uses which require fewer
off-street parking spaces than the existing uses, the new uses requiring fewer off-street parking spaces shall
be considered as the existing uses when determinina any subsequent change in use requiring additional off-
street parking spaces in (1) above.
(c) �arant sYructures. When a structure, or part of a structure, is vacant, the zoning administrator shall
determine the previous existing use for purposes of =aiculating parking requirements using city records, land
use surveys or directories.
Sec. 63.205. Change in use of parking areas.
Designated or identiFable existing off-street parking facilities, accessory to one (1) or more principal uses,
structures or facilities, may be changed to another use when the remaining off-street parking meets the
requirements that this section would impose on new buildings for all facilities, structures or uses, including
the new use. When the remaining off-street parking does not meet such requirements, other off-street
parking shall be substituted for the parking spaces changed to another use, and additianal off-street parking
shall be provided for the new use in accordance with the requirements of this section,
\J
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http:/lwww.cistpaui.mn.us/code/1c063.html 7/1/2d05
Page 1 of 5
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John Aardwick - Appeal of EQLIfe "Rule of 5 Variance"
. �
From: Dann Dobson <dddobsonl@yahoo.com> _ J 1
To: Qo1�n.Hardwick@cistpaul.mn.us> ��
Date: 8/1/2005 1:59:08 PM
Subject: Appeal of EQLIfe "Rule of 5 Variance"
CC: Dave Thune <Dave.Thune@ci.stpaul.mn.us>, Donna Swanson
<Donna.Swanson@ci.stpaul.mn.us>, "'Merritt Clapp-Smith"' <cdsmith@alum.mit.edu>,
"'Macu�een Flahaven"' <mcflahaven@aol.com>, Dann Dobson <dddobsonl@yakoo.com>
7ohn - Ignore the previous e-mail please use this one.
- Dann Dobson
DAIVIEL D. DOBSON
801 Goodrich Avenue
Saint Paul, Minnesota 55105
(651) 227-4376
dddobson@yahoo.com
August 1, 2005
Mr. John Hardwick
City of Saint Paui
Board of Zoning Appeals
8 East 4 Street
Saint Paul, Minnesota 55102
Re: EQ Life - 870 Grand Avenue
Request for Parking Variance
File # 05- 128190
Dear Mr. Hardwick,
John.Hardwick@ci.stpaul.mn.us
I present this letter in opposition to EQ Life's request for a Parking Variance for their proposed
new store at 870 Grand Avenue, at the southwest corner of Grand and Victoria, in the project
commonly known as Victoria Plaza, Vic Plaza or A Grand Place.
OVERVIEW
•
When Victoria Plaza was first proposed 5 years ago, in 2000, I and a number of oyther �
neighbors expressed concerns that this project did not have enough parking, and failed to �
provide, °A substantial net increase in parking" as required by the East Grand Avenue Sma
Area Pian originally adopted by the City back in 1988.
file�//C�U�ncuments% 20and%20Settin�s�hazdwici�L.oca1%20Settin�s\Temp\GW}00002.HTM 8!1/2005
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Page 2 of 5
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• Two studies of Parking on Grand Avenue, prior fo 2,000 showed a shortfall of parking on
Grand Avenue from Milton Avenue to Oakland Avenue (one block east of Dale}, of over 1,000
spaces.
At the corner of Grand and Victoria, where this variance is being proposed, between 1997
when the previous surface parking lot, was converted from being a free surface lot, with 139
spaces, to the multi-tiered parking ramp it is today, with 205 parking spaces, there has in
reality only been a net increase of 63 parking spaces at the corner of Grand and Victoria.
HISTORY HAVE PARKING ON GF2AND
\
Two studies of the parking on Grand Avenue, the first one showed a shortFall in Parking on
Grand from Avon to Dale of 756 spaces. The second study dated Nopvember 2, 1991,
showed a shortfall of 981 spaces between Milton and Oakland spaces. (See Exhibits A and B
attached.)
The East Grand Avenue Small Area Plan, adopted by the City of Saint Paul in 1988, and stiil in
effect today, had 4 conditions for fhe then surface parking lot at the southwest corner of Grand
and Victoria, to be converted to a parking ramp. These requirements were:
1. It's desitgn is appropriate to the neighborhood,
2. new parking provides a significant net gain in spaces available for businesses
• 3. traffic will not exceed local capacity
4. future spin-off development at Victoria Crossing is controiled.
(See Exhibit C attached.}
Up until 1997 this parking lot was a free lot and consisted of 139 parking spaces. In 1997 the
owner of the property at that time contracted with APCOA Parking lot convert this free surface
lot to a pay lot. As part of this conversion, APCOA had to reconfigure the parking lot, so there
were no longer free spaces accessible from the alley and the number of parking spaces
declined from 139 to 106 spaces, or a net decrease of 33 parking spaces. .
On April 16, 1997 Tom Beach of the City of Saint Paul, sent a letter, to APCOA Parking saying
that they could not reduce the number pf parking Spaces at the corner of Victoria and Grand
from the previous 139 spaces to 106. (See Exhibif D attached.) However, the City took no
enforcement action, and APCOA was permitted to reduce the number of parking spaces, from
139 to 106, with the resulting net loss of 33 spaces.
A QUICK HISTORY OF VICTORIA PLAZA
In 2000, Exeter Realty, the owner of 3 of the 4 pazcels at the comer of Victoria and Grand and the also
the owner of 2 other Malls within 2 blocks, of Crrand and Victoria, proposed the construction of Victaria
• Plaza. Neighbors concerned about the massive size, scope and lack of additional parking for "Vic Plaza"
formed the group Neighbors Opposed to Victoria Plaza (NOVP). 5 yeazs ago NOVP and the Summit
Hill Associafion presented detailed objecfions to the Saint Paul Plamung Commission, the Boazd of ��
Zoning Appeals and the Saint Paul City Council, pointing out among other things;
- that the project did not have a substantial net increase in parking as required by the East Grand
Avenue Small Area Plan, but only had the bare nunimuxn necessary for the new project;
aia.i�r•�r�,.,.,.,,,e„��oi�n ���to/'7l1CPtt;,,��\TP,,,,,\l:�h71(1M(1� HTn�i xii i�nns
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that the number of spaces being replaced for the surface lot was not the 139 that the City
demanded of APCOA in 1997, but the reduced number of 106; •
that eventually retail space might be placed in the lower level and that the calculation the City
and the developer were using of one parldng space per 3,000 sq. ft for the lower level, was
inadequate, should the lower level ever be used for anything other than storage.
The concems of the NOVP and The Summit Hill Association were rej ected and the developer was
permitted to construct Victoria Plaza with only 208 parldng spaces, replacing the 106 then e�usting
surface spaces, (not the 139 spaces as existed 3 years previously), and 102 new parlflng spaces,
providing exactly enough pazldng spaces for the three new retails shops on the l st floor, while only
providing 3 parlflng spaces for the lower level, based on the one space for 3,Q00 sq.fi., of sYorage area.
The developer was also given credit for 2 pazldng spaces by adding a bicycle rack. Eventually to
accommodate the addi6onal tra�c coming from the Victoria Plaza parking ramp, the City of Saint Paul
Department of Public Works eliminated three pazking spaces on the east side of Victoria Street, by Cafe
Latte, to create a right tum lane on Victoria going north.
The developer has repeatedly claimed that there aze 281 parlffng spaces in the ramp, but that would be
accurate ONLY if there were full time valet parl�ng, which there has never been.
Exeter Reality in their eictensive site plan proposal, even said that tlie 3� level of Victoria Plaza would
always be valet parldng, actually bringing the new total of new spaces upto 281, thus creating a net
increase of 76 spaces. There has never been valet parlflng at Victoria Plaza, the ramp is presently only
striped for 208 spaces, the exact number fhe project needed for the original teneats. •
Thus after all was said and done; the construction of Victoria Plaza added a an additional new 66
parking spaces at the comer of Grand and Victoria between 1997 and 2�05.
208 Spaces in Victoria Plaza today
- 139 spaces on surface lot in 1997
- 3 spaces eluninated on Victoria to make rig,ht tum lane
66 new net spaces creafed by Victoria Plaza
EQ Lifes Proposal
After 5 years of business in Victoria Plaza, one of the original tenants, the bookstore, Bound To Be Read
has gone out of business. E.Q. Life, a subsidiary of the Best Buy Company, proposes to put a
combination Coffee Shop, Beauty Salon, Spa store and classroom space where the Bottnd To Be Read
was. However, EQ Life also pmposes to put a 2,138 sq.$. Spa in the lower level of Victoria Plaza. EQ
Life claims that they would need an additiona17.20 pazlflng spaces for tYus Spa.
EQ Life argues that the "Rule of Five" should apply to their admitted need for 7.2 additional parldng
spaces by claiming that they will. convert 614 sq.ft. of non-retail ha11 and bathroom azea in the old
Bound To Be Read, (originally calculated at one space per 3,000 sq ft.) into "new common area". The
truth is this hallway and bathroom in Bound to Be Read was never "retail space" and was calculated a
the far more conservative 1 space per 3,000 square feet.
ERROR IN CALCULATION
5
♦
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Page 4 of 5
� However, there is a fatal error in petitioners math. If one divides the 2,138 sq. ft in the lower
level proposed for the Spa by 280, the space requirement for parking in a multi-use retail
center, the CORRECT number of spaces needed is not 7.20, as the City and the petitioner
claim, if the math is done correctly, the number of spaces actually needed is 7.6357.
(2,138 / 280 = 7.635...) �
Tom Beach, in his staff report writes;
" c. The net change in required parking for the changes proposed by EQLife would be
5.13 off-street parking spaces (7.20 spaces — 2.07 spaces.) °
When it was pointed out to Mr. Beach that the number of spaces needed, using the incorrect
number, was 5.13 was stili greater than 5, he said that it was the City's position that any
number greater than 5.1/2 was rounded down while any number greater than 5'/z was rounded
up. Thus is the City's logic is used, in that any number greater than 5'/2 is rounded up, since
the real number of spaces needed is 7.635 — 2.07 = 5.5657
Even IF the area being converted to "common area" was in fact previously retail, as petitioner
claims, the needed number falls under Section 63.204a and FAILS.
7.635 — 2.07 = 5.5657, when rounded up as the City claims petitioner now needs 5.5657
spaces or at least 6 spaces, so the "Rule of 5" would not apply.
• WRONG SECTION OF CODE USED FOR CALCULATION
In calculating the number of spaces needed for the Spa in the lower level of EQLife, City staff
divided the 2,138 sq. ft; the Spa will have, by 280, the number for Multi-Use retail space.
hlowever in a memo, entitfed Parking lnterpretations, dated February 8, 1994, (which the
developer provided as part of their "Attachment to Application for Site Plan Review", Tom
Beach, Marv Bunnell and Wendy Lane of the City ofi Saint Paul wrote to PED and LIEP Zoning
staffs, the foffowing comments, about Mu{ti-Use Retai{ Centers:
"Conclusion:
1. Not all of the space in a multi-use retail center needs to be retail as long as the
center provides a"variety of retail uses" and the entire center has at least 20,000
square feet of gross leaseable area. This means some of the space can be used for
office, restaurant, etc.
2. The parking requirement for the retail component of a multi-use retail center would
be calculated at the rate of 1/280. Parking for restaurants would be calculated
according to the standards listed for the type of restaurant, parking for permanent
office space would be based on the standards fo� general offices, and parking for
shared space would be based on the standards for storage. (See Exhibit E
attached.)
� According to the current City Code Section 63.207 Parking requirement by Use, the correct
formula for a Spa is NOT one space per 280 sq. ft., BUT "one space per 260 sq. ft. GFA ��
plus 1 space per employee." (See Exhibit F attached)
Thus the conect number of spaces needed is at least 8.22, assuming the Spa has no employees. If the
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Page 5 of 5
Spa has 2 employees, 10.22 parking spaces are needed and if the Spa has 3 employees, the Spa would
need 11.22 pazlang spaces, etc: �
CONCLUSION
For the reasons set forth, the Rule of 5 clearly has no applicabiliry in this situation. The number of
spaces EQ Life needs to open a Spa in the basement of Victoria Plaza far exceeds the 7.2 as originally
presented to the Boazd of Zoning Appeals, but at. a ininimum is 9.2, assuiviug only one employee on
duty.
Far this reason, EQLife's request should be denied.
RespectFully submitted,
Danie( D. Dobson
Yahoo! Mail
Stay connected, organized, and protected. Take the tour
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file://C:�Documents%20and%20Settingslhardwicj�I,ocal°/a20Settings�Temp\GW}00002.HTM 8/1/2005
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John Hardwick - 870 Grand Zoning Appeal
NYom:
To:
Date:
"frankzink" <frankzink@comcastneV
"John Hardwick" GTohn.Hazdwick@cistpaul.mn.us>
8l1/2005 12:52:06 PM
Subject: 8�0 Grand Zoning Appeal
CC: "JeH'Roy" <snmmithill@visi.com>
� :� ;� Page 1 of 2
John -
I had hoped to attend today's zoning appeal meeting regarding 870 Grand Ave., but i have a last minute
conflict. Thus, I'd like to provide my feedback to you by email.
I'm a homeowner at 852 Lincoln Ave, in close proximity to the property in question and I wish to support SHA's
appeal of the zoning ruling. I would like to emphasize two points:
1) The gerrymandering of the floorplan at the location is ciearly intended to circumvent the intent of the zoning
laws and the Rule of 5. We have a signiflcant parking deficit in that commercial area and this makes it worse.
2) If you insist that you have no discretion and must interpret the law literaliy, then the EQ Life folks should have
to prove that the bathroom is actuaily shared space. They should provide proof that the remodeling and ongoing
costs of the shared space are being assumed by otlier tenants. It should not be considered shared space if
there is not substantial cost sharing. Otherv✓ise, tenants could reclassify any space they wanted in their stores
as "shared," and fhus reduce their parking requirement.
Respecttully submitted,
Frank Zink
852 Lincoin Ave.
St. Paut, MN 55105
651-228-9271
fran kzin k@co mcast. net
----- Original Message ----
From: John Hardwick
To: frankzink@comcast.net
Sent; Monday, July 25, 2005 9:43 AM
Subject: Re: zoning determination appeaf re 870 Grand Ave
Frank,
See the attached. Unfortunately the floor plans are not available in electronic form, so if you would
like a copy you will need to stop down to our office.
John.
»> "frankzink" < frank�;nk(�comcast.net > 7/22l2005 10:2131 AM »>
John - �
i'm a Lincoln Ave. resident and got the notice regarding the appeal invoiving 870 Grand Ave. I'm wondering if
there is documentation available that expresses the zoning decision (and iYs rationale if available) and also the
text of the appeal?
If this availabie electronicaily and you can email it to me, that would be great. Othervvise, perhaps I can stop ��
by and pick up a copy or find a fax that could receive it.
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Page 2 of 2
(�
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thanks,
Frank Zink
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852 Lincoln Ave.
St. Paul, MN 55105
651-228-9271
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file:!/C:\Documents%20and%20Settinas\hardwici\T.ncat% NTM R/U�MS
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city of saint paul
planning cornrnission resolution
fife number o0-25
date March 24 z000
� � > r
�a9 .. w
WHEREAS, EXETER HOLDINGS LLC, file # 99-00118151, has applied for a Site Plan
Review under the provisions of Sec6on o� the Saint Paul Legislative Code, forthe purpose of
constructing a commercial development and puking facility at 860 Grand Avenue, legally
described as SEE FILE; and
WFIEREAS, the Planning Commission on 3/10/00, held a public hearing at which all persons
present were given an opportunity to be heard pursuant to said application in accordance with the
requirements of Section 64.300 of the Saint Paul L.egislative Code; and
WHEREAS, Saint Paul Planning Coznmission; based on the evidepce presented af the public
hearing on 3/10/00 as substantially refleeted in the minutes, made the fo]lowing findings of fact:
1. Traf�c Concems have been raised about traffic congestion at Grand Ayenue and
Victoria and the impact of addirional development.
The developer hired the Pazsons Transportarion Group to do a traffic study. They used
traffic counts that had previously been done by Public Works and conducted their own
counts of tuming movements at the intersection of Crrand and Victoria during a weekday
PM rush hour and on a Saturday. Their study concluded that:
- `"The impact of the traffic from Victoria Plaza will be minimal, with post-
development conditions expected to be similar to exisring conditions.".
— "I'he proposed access to the new parking ramp would be further away from the
intersection of Grand Avenue and Victoria Street and further inside the site, which
would minimize the spili back queues onto Victoria Street and would reduce the
potential for queues to spillback into the intersection at Grand Avenue:'
— "The Saturday peak-hour counts are essentially equivalent to the weekday PM
peak-hour counts...: '
•
rnoved by
seconded
Faricy
b \! Gordon
J
i n favor Unanimous voice vote with one abstention
��
against_
�_ _ �,-�
� �:
Zoning File # 99-OdI I8151
Page Two of Resolution
— "Whi1e the proposed project would add traff'ic to the street system in the vicinity
of the site, the amount added would not be sufficient to impact traffic operations.
Intersection operations are shown to be good (Level of Service B) and to retnain at
Level of Service B with the adcled traffic: '
Staff froin Saint Paul Public Works Tr�c Erigineering Secfion reviewed the site plan:
- They said thaf the anticipated increase in .auto iraffic can be handled if three
parking spaces are removed on the east side of Victoria to provide more room for
turning movements.
-- They have concems thaE the loca6on of the stairs on the Victoria side of the ramp
coutd encourage pedestrians to cross-Victoria in the middle of the biock instead of
crossing at the crosswallc. They would like to see the stairs firom the ramp on
Victoria moved closer to the intersection to discourage people from crossing at
� mid-block or have a barrie� sueh as a fence ot bollazd and chain installed along the
west side of Victoria to discouFage pedestrians from crossmg at mid block.
u
Staff also recommends that a"Ramp Full" sign should installed at the intersecflon of
Grand and Victoria so that drivers could find out if the ramp was full before they drove •
down Victoria. This sign might also provide_information on other pazking lots in the
ate�.
2. Parking Grand Avenue has a parking shorkfall that has been well documented. City
staff did a pazking survey this year and determined there is cuRently a pazking shortfall of
296 off-street parking spaces on Crrand between Milton and Avon (one block either
d'uecrion from Victoria). The zoning code would require 798 parking spaces for the nses
iri this azea if they were new uses and there 502 off-street parking spaces available for a
sfiortfall of 37%. (There are also l l l on-street parking spaces avaiiable. If these are
counted, the deficit becomes 185 parking spaces for a shortfall of 14%.)
The property is currendy used as a parking lot with 106 spaces that serves the nearby
Grand Avenue businesses.
The pazking standards found in Section 62,103 of the Zoning Code require the project to
provide at least 220 off-street parking spaces. This is based on 108 spaces to replace the
spaces and the bicycle rack in the existing lot plus 102 parking spaces required for the
proposed new retail space.
The plan provides 213 parking spaces self-pazk spaces and would jet credit for 2 more
spacas for providing bicycle racks (per Section 62.103 j) for a total of 215 parldng
spacas. This would exceed the zoning code requirement for pazkin� by 5 parking spaces. �
�
� .� ..
� Zoning File # 93-00118151 � " � �
Page Three of Resolution
Public Works has recommended that 3 exisfing on-street parking spaces be removed on
the east side of Victoria to accommodate the anticipated increase in traffic. (On-street
spaces are not included in zoning calcularions for determining parking.}
The applicant is proposing to use valet pazking during peak hours.. Given the history of
vatet parking when it was tried her before on the surface lot, staff told the applicant they
cannot count valet spaces toward meefing tha minimum parking requirement. However,
• valet parking, if it could be properly managed, would provide a total of 288 spaces for a
'� net increase of 80 spaces compared to the existing lot.
" An important consideration in looking at the pazking situation is hours of peak demand. .
The peak parking demand for Grand and Victoria appears to be in the evening primarily
because of the restaurants: All of the new commercial space in the proposed development
. > would be for retail. According to the Urban Land Institute the pazking demand for retail
: tends to be highest in the aftemoon especially duriug the weekend. '�his means that the
s: afternoon peak parking demand for retail complements the evening pazking demand for
the restaurants and that a good share of the 102 parking spaces required for the new retail
:' • space may be available fox restaurant customers during the evening hours.
3. Urban design Concerns have been raised about how the building would fit with the
existing architectural character of Grand Avenue, especially its height and mass.
The buiiding would be 35 feet tall (measured to the top of the parapet). This is taller than
ehe other commercial buildings on the comer but almost the same heighe as the adjacent
apartment buildings. (Fox another comparison with another new building, the Mississippi
Mazket at Dale and Selby is 32 feet tali to the top of Che parapet and 42 feet tall to the top
of the towet at the comer of the building.}
The building would be have a lazger foot print and mass than other buiidings in the area.
In response, the building has been designed to look like three different buildings by using
differet�t materials, heights and window treatments.
Openings must be provided for the parking ramp to meet building code requirements for
air circulation. The openings facing Cnand and Victoria have been kept to a minimum
and designed to look like windows.
Lighting fixtures will not be visible from neazby properties and have been designed to
minimize any spill-over light or glaze. The top level of the ramp will be lit primarily by
: lights located in the middle of the parldng azea that are mounted 12 feet above the.
surface of the parking (compared to 25 to 30 feet for most pazking lots). They will be
supplemented by lights mounted on the inside of the parapet and aimed into the center of�
the ramp, p �
�(l
Zoning File # 99-00118151 _' - � �� ; � �
Page Four of Resolu4on
The deveIoper asked the Saint Paul on the Mississippi Design Center to comaient on
�� p2ans fot the building. Tfie Desiga Center di'd not address• the issue of whether this was
an appropriate Iand use but they provided suggestions on how to improve the design of
the building. The current plans reflect a number of these suggesfions. The Design Center
�-' wrote that tha desigm "is a very good exampie of mixed-us� building eombining pazking
= and ,commemial uses and when parkingxamps ar� proposed in Saint Paul I would not
hesitate to_use this projeet as a model of good• design:" (See attached memo.)
;- Given the requirements to provide parking, z smaller buildittg is not possible without
underground parking which is not economically feasible without a Iarge City subsidy
• ' which does not seem likely. `FhaC leaves only=two" alternatives for the site: a development
�like the current proposai�octlie.existing surface parldriglo�. -A well designed building is
• preferable to a pazking lo� at an.uzban; pedestriait-oriented corner like this.
�
4. ltequired finding's . Section 62.108(ej of the Zoning.Code says that in "order ta approve
the site plam; the planning commission shall consider and find thac the site plan is consistent
with" tIie foliowing: • ' .
(a) Applicable brdinances of the ,Ciry of Saint Paul.
The site plan is consistent �ith this finding:
- The progosed use as retail and accessory parking are pemutted uses in the B-2
, zoning dishict.
- ` The building meets the height limits for buildings in the B-2 zoning district.
- The project meets the parking requirements.
- ` The�zoning. code requires that cars in parking facilities be screened from view.
Tha current design for.the ramp meets these requirements on three sides but the
west side of the ramp must be redesigned to provide additional sczeening on the
second level. ' �
(6) The city's adopted comprehensive plan and development or p'roject plans for sub-areas of
the city.
The plan is consistent with the 1999 Land Use Plan. Tbis plan says:
- Designs for new projects in pedestrian-oriented areas should include buildings out
to the sidewalk, parking that is not in front of the building and screened, human
scale lighring windows facing.the sidewalk and azchitecture that respects the
neighborhood context: (Page 27)
�
- L.arge parking lots erode the chazm of traditzonal neighborhoods that were .
developed in the streetcar ear. •
- In pedestrian-oriented neighborhood commercial centers, the City will support the�
provision of just enough commercial pazking. �
� Zoning File # 99-00118151 , ,: - _ : ;, y, ,�
Page Five of Resolution •
— At e�cisting utban village (neighborhood) centers ... reduce pazking requirements
for new developmene, perhaps by 20 percent:
The plan is consistent with the East Grand Avenue Small-Area Plan and its
recommendarions for this site. On page 3 the plan says that "a ramp should be approved
[on this site] only if it meets four criteria":
— Its design is appsopriate to the neighborhood. =
The desib of the building addresses concerns about its height and mass. The
-:. building with retail space at street level is more appropriaCe than the existing
` surface parking lot ot a sinaller deck with no retail space along the street frontage.
— New parking provides a significant net gain in spaces available for businesses.
- Although tfiere wi11 only be a modest net gain in self-serve pazking spaces, it is
aiso important to consider hours of peak demand for pazking. The peak parking
- demand for Grand and Victoria appeazs to be in the evening primarily because of
- the testauTants. All of the new commercial space in the proposed development
would be for retail. According to the Urban Land Institute the parking demand for
• retail tends to be highest in the afternoon, especially during the weekend. This
means that the aftemoon peak pazking demand for retail complements the evening
_ pazking demand for the restaurants and that a good share of the 102 parking
spaces required for the new retail space may be available for restaurant customers
during the evenirig hours.
The developer is also proposing valet parking during peak hours. Given the
history of valet pazking wheri it was tried here before on the surface lot, staff told
the applicant it cannot count valet spaces toward meeting the minimum parking
requirement. However, valet pazking, i£ it can be properly managed, would
provide a toCal of 288 spaces for a net increase of 80 spaces above what the zoning
code requires.
- Traffic will not exceed local capacity.
Analysis by Saint Paul Public Works and the private traffic consultant indicates
thaY traffic will not exceed local capaciCy.
— Future spin-off development at Victoria Crossing will be controlled.
Additional spin-off development would not be possible under the zoning code.
The East Grand Avenue Small-Area Plan contains another section with "Development
Concepts" for the southwest comer of Crrand and Victozia. This section intended that this
• pmperty should be rezoned fxom �-2 to P-1 as part of the 1989 development concept for
a parking deck but did not intend that the parcel should be rezoned to P-1 if the
development concept for the deck proved infeasible. Since the adoption of this section, ��1
(
Zoning Fite # 49-00118151
Page Suc of Resolution
the City tried to develop a deck on the site but could not get the nearby propexry bwners
and businesses to agree on how=tcz pay far it�: After a deead� o£ work on it, it appears that
a parking structure without retail to support it is not feasible and could be built only if
with a large Ciry subsidy. :�.
(c) Preservation of rtinique geologic, geographic'or historieally significant characteristics of
the city and environmentally�sensitive areds:' .
�=� _ The plan is consistent with the ehazacter Qf Grand Ayenue.. The height of the building is
•. comparable. ta ttie adjacept apartmenthuitdings to the west, T'he design uses a variety of
materials and window treaiments to break up the mass of the building and make it look
like three buildings.-
:-: (�}°Protection of adjac�nt and neighboring properties through reasonable provision for such
^:: matters as surj'ace water. drainage, sound dn� sight buffers; preservation of views, light
• and air; arid those uspects of design which nzay keave substantial effeets on neighboring
larul uses. �
�
The site plan will improve storm watee drainage. The size of the building is consistent •
,- with the apaacttment buildings oR the block and wilt not. unreasonably interfere with views,
� light and air. The site plan is eonsistent with fhis finding if additional sound and sight
buffers are added to the second level of the building.on the west side:
(e) The arrangement of buildings, uses and fqcilities of the proposed development in order to
assure abutting property ar�d/or its occupdnts will not be unreasonaUly affected.
The site plan is consistent with this finding. The loading dock is located at the back of
the building on the alley: The loading area has been modified so that it will be able to
accommodate trucks up to at least 35 feet long so that they do not interfere with the alley.
Restrictions must be gut in the tenanYS' leases saying that trucks larger than tlus wi12 not
be permitted except to inirially stock stores_when tenants first move in.
(fl Creation of energy-conserving design through landscaping and location, orientation and
elevation of structures.
The site plan is consiseent with this finding.
(g) Safety and convenience of both vehicular and pedestrian traffic both within the site and
in relation to access streets, including traffic circulation features, the locations anrl
design of entrances and exits and pkrking areas within the site.
The site plan is consistent with this finding. Based on the analysis of the project by the
(
� ��`���
Zoning File # 99-00118151
Page Seven of Resolution
° private tr�c consultant and Saint Paul Public Works:
- The intersection can handle the increased level of traff'ic. However, 3 patking
spaces on the east side of Victoria should be removed to provide addiflonai room
for cazs t+uning onYO Cnands
- The ramp will significantTy iucrease queuing space for cars waiting to enter the
ramp. In addition, a"Ramp Full" sign should be instalied by the applicant at the
intersecfion of Grand and.Victoria so that drivers can find out if the ramp is full
before they drove down Victoria.
.; - Visibility for drivers exiting the ramp onto Victoria was raised as a concem but
_� this can be addressed with some minor modifications to open up the southwest
corner of the building.
- The location of the stairs for the parking ramp could encourage people eo walk
� across Victoria at mid-block. However, this can be addressed by moving the
a:: ; stairs cioser to the intersection ar providing a bazrier such a fence or bol.lard and
� chain along the west side of Victoria to discourage pedestrians from crossing at
mid-block.
• (h) The satisfactory availability and capacity of storm and sanitary sewers, including
solutions to any drainage pro6lems in the area of the development.
:� The site plan is consistent with this finding. Storm water-that falls on the top parking
level wiil be sent directly to the storm sewer in Victoria. This is an improvement over the
exisring surface parking lot that drains to the alley.
(i) Sufficient iandscaping, fences, walls and parking necessary to meet the above objectives.
The site plan is consistent with, this finding if additional screening and landscaping are
provided on the west and south side of the building.
All of the tr�c entering and leaving the ramp would use the drive lane on the second
level of the ramp. But the plan shows that the west side of the ramp would be open and
this would not provide adequate screening for light and noise for the apartment building
immediately to the west. The top of the pazapet on the west and south sides of the ramp
on the third level is 3' 8" above the surface of the pazking deck. The height must be
increased to 4'6" to meet 2oning standazds for screening parking facilities.
New boulevard trees with grates and sidewalk pavins is proposed on the Grand and
Victoria sides. The landscape plan is not detailed about what would be planted on the
• west or south side of the building. The site plan should be revised to show a combination
of vines and columnar trees planted on the west of the building and vines planted to the
south of the building in a raised/protected planting area along the alley to soften the visual
impact of the building on the adjacent apartrnents and houses. ��
Zoning File # 99-00118151 - � � � � � � �
Page Eight of Resolution
(j) Site accessibility in accordance with the proroisions of the Americans with Disabilities
Act (ADA); includiiag parking spaces, pca.ssenger loacding zones arad accessible routes
The site plan is consistent with this fmding i�one�additional van accessible parking
space is provided aE the "church" Iot nortli of Victoria Crossing West.
(lc) • Proi�ision fb�'er arid`sediment controa as specified ari the "Ramsey Erosion
� Sediment and Control Handbook"
�. . "
Th� site plan is consistent with thi's finding.
NOW, TFIEl2EFORE, BE IT R�SOLVED; liy th� SainY Paal Planning Commission, thaY under
the aufhority of the City's Legislative Code, the siee pFan be approved° to p@rmit construction of a
c`ouiniercial developmerit and parlcing facilify at 860 Grand Avenue, subject to the following
condifions:
1. The following changes must be made to siYe plan Yo improve traffic safety:
— Saint Paul Public.Works must remove on-street garking on Victoria for a distance of 60 •
feet south of Crrand Avenue fo improve tr�c�circulatio� and provide more room for
tuming movements
— The site plam m�st be modified to discourage people ctossing at mid-block on Victoria.
The "stairs from the t�amp on Victoria must be moved close� Yo the intersectiou to
discourage people from crossing-a� mid:block or a tiarriex such'a fence; railing or bollard
and cfiain must be installed along the west side of Victoria.
-. A sign telling drivers when the ramp is full must be installed at the corner of Grand and
Victoria.
— The exit from the ramp must be modified to improve visibility for drivers leaving the
ramg. •
2. The'developer must use valet parking ta increas� the number of parking spaces available
during peak demand hours. �
3, One additional van accessible parking space must be provided at the "church" lot north
of Victoria Crossing West.
4. A revised landscape plan must be submitted showing a combination of vines and
columnar trees planted west of the building and vines planTed to the south of the building
in a raised, protected planting azea along the alley to soften the visual impact of the
building on the adjacent apartmants and houses.
5. The west side of the ramp must provide additionat screening on the second level and all •
pazapets on the third level must be at least 4.5 feet abovs the surface of the garking deck. � 1
�V
�
• Zoning File # 44-D0118151 ^- -_ �; � �
Page Nine of Resolution ��
6. The loading area must be designed to accommodate trucks up to 35 feet long. Trucks
larger than 35 feet will not be pemutted except to initially stocic stores when tenants first
move in. A11 deliveries must use the loading dock: Aours for deliveries or pick up of
merchandise must be restricted to between 8 AM and 5 PM. These restdcrions on the
size of irucks and hours for the loading dock musY be included in the tenants' leases.
7.. The building must be constructed:
— Substantially as shown on the plans submitted to give the appeazance of three
sepuate buildings on Grand Avenue, which is compatible with traditional
storefront design on Grand.
— To minimize, as much possible, the floor elevation of the second level of the
building (the lower parking level) in order to minimize the overall height of the
building.
8. The patking spaces in the new ramp beyond those needed to meet zoning sequirements
for the new businesses proposed in this development, will be considered required
pazking for the businesses at other comers of Cnand and Victoria. Ciry staff will allocate
• these parking spaces on a pro-rated basis, based on an analysis of the number of parking
sgaces that would be required to meet current pazking standards for each building and
the number of parking spaces provided at each building.
9. A bus shelter that is consistent with the size of the current bus shelter must be provided
on the site at a location that is acceptabie to the City and the developer.
�
� �
John Hardwick - NO to EQ additional s a s ace "� �' �� Paye 1
- � _,
J _ , � ,
From: "Mary P. DiaY' <Mdiaz@gw.hamline.edu>
To: <john.hardwick@ci.stpaul.mn.us>
Date: 8/1/2005 10:27:12 AM
Subject: NO to EQ additionai spa space
- ��:�
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•
To Whom It May Concem:
I woufd fike fo express my opposition decision to allow EQ Life to construct additional spa space in fhe
basement area formerly used by Bound to be Read. As a neighborhood resident on L.incoln Avenue, one
block from the site, 1 cannot stress strongly enough my opposition to encouraging large entitities to expand
their useage, which will, in tum, encourage more concurrent patronage, traffic and parking. There is
currently a level of tra�c that is not oniy clogging up the area, it is to the point where driving to and from
my own garage can be dangerous to myself and my children. The parking situation is inadequate and
critical at its current levels, without encouraging additional needs. I already have friends who prefer not to
come to the area at cerfain times because it is so troublesome to get about. W ithout careful and
thoughfful planning and forethought,the Grand Avenue area between Lexington and Dale is in real danger
of being crushed and sufforcated under ifs own weight. There realfy is foo much of a good thing.
Sincerely,
Mary P. Diaz
937 Lincoln Avsnue
St. Paul, MN 55105
•
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Page 1 of 1
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• John Hardwick - EQ LifeBoard of Zoning appeals
From: "Karolyn Redoutey" <kredoute@cce.umn.edu>
To: <john.hazdwick@ci.stpaul.mn.us>
Date: 8/1/2005 10:53:40 AM
Subject: EQ LifeBoard of Zoning appeals
Mr. John Hardwick
Commerce Bldg, 2"d Fioor
8 East 4th St
St. Paul, MN 55102
Dear Mr. Hardwick:
Now that EQ Life is designated part of the neighborhood on Grand near Victoria, 1 am somewhat concerned about
the prospect of additional spa space in the basement and what this may do to the already congested corner. The
street was not built for the constant coming and going, and without additionai parking, there wili be further
di�culties. i do not live in the area, but I do shop there, and sympathize with the neighbors. It gets more and
more congested. Certainiy with the addition of J. Crew, and Pottery Barn, there was an increase. It's one thing to
put in a bookstore, where people get what they want and go, still another to install a spa. Please consider this
matter and the fact that the residents want to keep Grand Avenue's independent charm.
As you know, statistics show that there are already fewer spaces than can sustain the number of shoppers
• parking.
Karolyn Redoutey,
Minneapolis
•
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John Hardvvick - Problem with parking
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From: <SuIIRic@aol.com>
To: <john.hazdwick@ci.stpaul.mn.us>
Date: 8/1/2005 11:49:24 AM
Subject: Problem with parldng
Hello Mr. Hardwick:
1 am a long time resident of Crocus Hiil, living near the intersection of Victoria and Fairmount. I have 6een
appalled with the changes to Grand Avenue over the years with the Business Association and the City Zoning
Board seem determined to lay down in front of developers marching over them.
This parking situation at the intersection at Grand and Victoria has been confroversial since the beginning, and it
has not been a perfect solution. The intersection is congested, the entrance to the parking ramp dangerous with
lack of space manwerbiiify. The cars troll the neighbofiood looking for parking spaces.
To decrease the amount of spaces in the ramp more to ailow room for a heafth spa is ridiculous. Instead of
contributing to quality of life as a heaith spa shouid it is adding to the headaches of all the other merchants and
neighbors. It is atso settirtg a bad precident for other future developers fo do the same Yhing. ! can see each any
every developer down the way gearing up for a law suit if they can't get tfiier way.
Finally, we should nof be wasting our ta�c payers dollars and time on this sort of reworking of the rufes.
Decline the EQ Life request.
Thank you. I may be reached at 651 293-1982.
Mary Sullivan-Rickey
�
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• John Hardwick - EQ LIFE
From: <awm@att.net?
To: �john.hardwick@ci.stpaul.mn.us>
Date: 8/1/2005 9:49:12 AM
Subject: EQ L7FE
Mr. flardwick
We aze writing you to encourage you to oppose the decision made by the city staff to allow EQ LTFE to
use the additional spoace at Victoria and Oxford as SPA Space.
We moved into this (Lincoin & Chatsworth) area many years ago because of the quiet and unique
neighborhood it once was. Since that tnne Exeter Realty has worked to turn it into a min-University
avenue. We are uncertain why Jim Stoplestadt is so far above the rules and agreements that aze made
between the neighborhood and the businesses.
It was agreed that the basement of the building at Victoria and Grand was storage space. Now EQ Life
wants to use it as a SPA. This as you know would create more parking problems and more congestion
in the area. As it is now our children are at risk because of the lazge amount of traffic using Lincoln as
an altemate route to Grand Ave.
• I strongly encourage you to do what is right and hold the business people who rent this properry to the
agreement they came up with at its inception. Don't allow them to twist and bend the agreement so that
they can focus on maldng money rather than doing right by the people who share the neighborhood with
them.
Thanks for your time! !
Robert &,Alesia Metry
1009 Lincoln Ave.
St. PAuI, MN 55105
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Page 1 of 1
�J . � �' �' e ��
John Hardwick - EQ Life expansion
�
From: <vanderleeuws@comcast.net?
To: <ohn.hardwick@ci.stpaul.mn.us>
Date: 8/1/2005 9:12:32 AM
Subject; EQ Life eapansion
My name is Tracy van der Leeuw and I live at 825 Fairmount Avenue in St Paul, very near the location
of the new EQ Life. I am writing to express my concem over and opposition to the allowance of
addirional spa capacity for this business. The pedesirian friendly nature that is both the desire of us
residents and absolutely key to the snccess of the business sections of our neighborhood is atready under
tt�reat at the current levels of traffia Should EQ Life be allowed to become too lazge, it could be at the
e�.pense of the special character that all have worked so hard to build here. Please disallow this
proposal, it is not in the area's best interest.
Tracy van der Leeuw
Tel. b51225 -9759
�
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From:
To:
Date:
Subject:
<kmdevinel @mmm.com>
<ohn.hardwick@ci.stpaul.mn.us>
8/1/2�05 8:42:26 AM
Re EQ Life parking variance
I am absolutely against aliowing any parking variance any more on Grand
Avenue - avhether it's for EQ Life / CVS / etc. What has made Grand Avenue
successfui is its uniqueness. It is noYa cookie cutter shopping area.
Customers come because the stores are not available any where else. If aIl
we have to offer is "me too" stores, peopie will go elsewhere and Grand
Avenue will die. It is a fabulous destination now - don't kill it. The
concept succeeds because of the mix of stores and residential.
We do not need more cofFee shops, grocery stores, and mega "cut throaf'
stores (CVS).
I am a Grand Avenue residen# (Lexington & Fairmount).
Thanks
Kathy
Katherine M. Devine
Business Communications Supervisor
3M CCD/Food Service Business
Bldg. 223-2N-20
St. Paul, MN 55144-1000
email: kmdevine1@mmm.com
web site: www.3M.com/foodservice
Tel: 651-733-1456
Fax: 651-736-1644
CC: <ward2@ci.stpaui.mn.us>, <ward4@ci.stpaul.mn.us>
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�Page 1 of 2
John Hardwick - EQ Life Parking Variance—Zoning Appea7 `
�
From: <josepl�mck@comcast.neU
To: Qohn.hardwick@ci.stpaul.mn.us>
Date: 7/32/2005 7:52:42 PM
Subject: EQ Life Parking Varianc�-Zoning Appeal
CC: <jmckiniey@iixun.arg>, <pphillips@felhaber.com>
Thank you for agreeing to distribufe this email to the members of the Board of Zoning Appeals. I regret
that I am unable to attend the hearing due to a previously-scfieduled work commitment.
I live at 877 Lincoln Avenue, which is across the ally from the reaz entrance to the proposed EQ Life
premises. My family has lived in our home for five yeazs, since before constivotion began on the Grand
Place( Pottery Barn/7. Crew) building. Prior to agreeing to purchase our home, my wife and I had
several discussions with city staff and tUen-Council Member Coleman's office regarding the site plan
and approved use of the Grand Place property. I examined drawings and resolutions presented to me by
the St. Paul LIEP Office.
The impact of customer pazking, vendor deliveries and employee traffice was of pazamount importance
to me as I considered maldng a substantial investment in property across the alley. It was my
understanding that the site pIan did not allow any deliveries in the a11ey (weekly gazbage pick-up after
7:00 a.m. was pexmissible); vendors would deliver through the Grand Avenue entrances.
T am proud to live in my neighborhood, and I fliink Grand Place, is a mostly positive neighbor. There is a•
serious shortage of adequate parking for employees, patrons and suppliers to the shops located in Grand
Place facility. Unfortanately, the past four yeazs have been an on-going hassle of pazlflng headaches--of
constantly reminding delivery drivers they cannot deliver in the alley; of ha�ing Pottery Bam customers
block me into my garage and having retail employees argue with me. I have had Parlflng Enforcement
officers tell me they don't have adequate resources to respond to my requests for help. Pottery Barn has
developed a loading area in the alley (on a concrete apron originally reserved for parldng for disabled
patrons), and receives two or more truckloads of inerchandise there on a weekly basis. All of these uses
are contcary to the uses outliued in the Site Plan approved by the City and presented to me by the C! ity.
I am a proponent of addifional commercial development along the Grand Avenue corridor, including the
sensitive addirion of retail space for chain retailers. However, I feel I must express my concerns.
Granting this puking variance will only compound an e�cisting problem--there will be additionai
customers and addirional vendors, competing for limited pazldng places. (Including pazlflng illegally in
the alley.) If a proposed salon will draw up to 300 patrons on a Saturday, there will be a serious
shortage of adequate parking.
The use of this property must be balanced with the adjacent residenrial use, in line with approved site
plans and city ordinances, It may be a charmiug idea, but squeezing "Big Box" retail into into 19th
century scale streets isn't worlflng. If studies show that EQ Life will bring more customers than can be
accommodated with paridug, perhaps this isn't the right location for them. I request that you deny the
pazking variance for EQ Life, as it will put too great a demand on neighborhood parldng and streets.
I believe EQ Life will be a good neighbor, and an asset to Grand Avenue. Can you please take this
oppothmity to remind them that they are entering a neighborhood? I hope I won't see conshuction or �
delivery trucks parked in my alley. Maybe 7im and Rob Stolpestad can remind them of appropriate and
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EQ Life (Grand and Victoria) requires a variance of at least 7 parking spaces.
There is no further space available in the parking ramp and parking studies
show a shortfall of 981 spaces from Milton to Oakland streets.
We, the undersigned, do not support a variance to allow EQ Life to
construct additional spa space in the basement storage area of the
former Bound To Be Read Bookstore withaut the additional
parking.
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EQ Life (Grrand and Victoria} requires a variance of at least 7 paxking spaces�
'There is no further space available in the parking ramp and parking studies
show a shortfall of 981 spaces from Milton to Oakland streets.
We, the undersigned, do not support a variance to allo�r EQ Life to
construct addifional spa space in the basement storage area of the
former Bound To Be Read Bookstore without the additional
parkmg.
Address/Zip code Date
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, EQ Life (Grand and Victoria) requires a variance of at least 7 parking spaces.
There is no further space available in the parking ramp and parking studies
show a shortfall of 981 spaces from 1Vlilton to Oakland streets.
We, the undersigned, do not support a variance to allow EQ Life to
construct additional spa space in the basement starage area of the
former Bound To Be Read Bookstore without the additional
parking.
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EQ Life (Grand and Victoria) requires a variance of at least 7 parking space�
Thexe is no further space available in t11e parking ramp and paxking studies
show a shortfall of 981 spaces from Milton to Oakland streets.
We, the undersigned, do not support a variance to allow EQ Life to
construct additional spa space in the basement storage area of the
former Bound To Be Read Bookstore v�ithout the additional
p�'�g• .
Address/Zip code
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� EQ Life (Grand and Victoria) requires a variance of at least 7 parking spaces.
There is no further space available in the parking ramp and parking studies
show a shartfall of 981 spaces from Milton to Oakland streets.
We, the undersigned, do noC support a variance to allow EQ Life to
construct additional spa space in the basement storage area of #he
former Bound To Be Read Bookstore without the additional
parking.
Signature AddressJZip code Date
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EQ Life (Grand and Victoria) requires a variance of at least 7 parking space�
There is no further space available in the parking ramp and parking siudies
show a shortfall of 981 spaces from Milton to Oakland straets.
We, the undersigned, do not support a variance to allow EQ Life to
construct additional spa space in the basement storage area of the
forrner Bound To Be Read Bookstore without the additional
parking.
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� EQ Life (Grand and Victoria) requires a variance of at least 7 parking spaces.
There is no fuxther space available in the parking ramp and parking studies
show a shortfall of 981 spaces from Milton to Oakland streets.
We, the undersigned, do not support a variance to allow EQ Life to
construct additional spa space in the basement storage area of the
former Bound To Be Read Bookstore without the additional
parking.
Address/Zip code Date
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EQ Life (Grand and Victoria) requires a vaxiance of at least 7 parking space�
There is no further space available in the parking ramp and parkirig studies �
show a shortfall of 981 spaces from Milton to Oakland streets.
We, tlte undersigned, do not support a variance to allow EQ Life to
construct additional spa space in the basement storage area of the
former Bound To Be Read Bookstore without the additional
parking.
Address/Zip code
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• From:
To:
Dafe:
Subjecf:
"bluehairlady" <bluehairlady@mycidco.com>
<John. hardwick@ci.stpau I. m n. us>
7/31/2005 10:04:49 PM
Re: EQ parking variance
�
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� ' !
� -
My name is Rosalyn Goldberg. I have Iived at 1023 Grand Ave., for 25 years. I am adamantly opposed to
granting anymore parking variances on Grand Ave ! YOU CAN'T GIVE AWAY WHAT YOU DONT HAVE
!! As you are aware, there is a gross shortage of parking on Grand Ave. at this time. Granting another
variance will only exacerbate this situation. it was ali the previous variances that caused this problem in
the first place. The "rule of five" is outdated. Grand is not the same place that it was. It is overloaded.
This is a"no-brainer". Do not allow a parking variance for EG Life. Don't destroy the Avenue, please !
Thank you, in advance, for your consideration and common sense. R. Goldberg �
�
�
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Page 1 of 1
.� J
John Hardwick - Grand Avenue parking
From: "Nance Marsden" <NanceMarsden@hotmail.com>
To: <John.hazdwick@ci.stpaul.mn.us>
Date: 7/31/2005 5:30:21 PNI
Subject: Grand Avenue parlang
Dear Mr. Hardwick:
I am against allowing these new companies coming to Grand Avenue without them providing100% of any
increased parking they need. I am a Grand Ave.business owner who just had permit parking enforced on
the west side of my building on Milton Street. My receipts have 6een down $4000.00 per Saturday since
the enactment of the permit parking. Permit parking was inacted because of parking problems now. Why
would the city wanf to make it worse on the business already here by allowing new business to come in
without proving the increased number of spots, and encouraging more permit parking?
EQ Life, a large corporation'should not be allowed a variance. The building they want to go into was
required' to put in the parking ramp in order to be ailowed on Grand Avenue. No one wants to use the
ramp because there is a charge for it so they park free on the streets. EQ Life should have to £gure out a
way to get their customers to use the ramp, not be given a break for parking.
Sincerely,
Nance Marsden
First Grand Avenue Liquors, Inc.
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� From: "Jim Harrison" <imh@pro-ns.net>
To: <john.hardwick@ci.stpaul.mn.us>
Date: 7/31 /2005 4:45:49 PM
Subject: EQ Life Adds to Parking Problem
Dear Mr. Hardwick:
I am the immediate past chairman of the Summit Hill Association/District 16
Pianning Council Zoning and Land Use Committee. My schedule does nof allow
me to attend the BZA meeting Monday, August 1, to express my objection fo
the erroneous interpretation by city staff regarding the EQ Life Spa
expansion in the Grand Place building at Grand and Victoria. As a citizen
member of the ZLU committee, I am aware of the details of the
misinterpretation of the city code regarding the ciassification of the spa
business as just another retaii establishment in a mixed use commercial
buiiding, and of the restroom faciiities on the main floor as being
available to the general public by unlocking an existing door from a remote
haliway. Furthermore, the "Rufe of 5" regarding parking was never intended
to apply to large, mixed use buildings, but rather to the smailer,
residential-style or single small-6usittess 6uildings o� Grand Avenue. I
request that you share my objection with the BZA regarding the acceptance of
the EQ Life Spa expansion without a commensurate provision for off-street
parking as the city code clearly requires, not only for the additional
customers they expect but for their employees. Thank you for your help.
Sincerely,
. JAMES M. HARRISON
969 Lincofn Avenue
Saint Paul, MN 55105
(651) 224-�549
CC: "Jeff Roy" <summithill@visi.com>, "Maureen Flahaven" <mcflahaven@aol.com>,
"Merritt Clapp-Smith" <cdsmith@alum.mit.edu>
�
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Page 1 of 1
John Hardwick - Grand Avenue
�,� , �..
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From: "Kellee Hamilton" <kelleehamilton@hotrnail.com>
To: <Tohn.har&wick@ci.stpaul.mn.us>, <wazd2@ci.stpaul.mn.us>, <u
Date: 7/30/2005 2:16:20 PM
Subject: Grand Avenue
In advance I would like to thank you for taking the time to consider our side of the proposed
Grand Avenue development. We are a salon and spa that just opened on Grand Avenue on
July 5, 2005. We have 5 stylists, 2 esthetacians, and one nail technician. Our business is a
small one, but we are located in a special area of town tlzat caters to small business owners
as well as those cliants seeking a modern day, small town fee1....GRAND AVENUE! We
have had many discussions amongst the staff, management, and owner and we feel that
allowing big corporations to take over Grand Avenue will fOl'�eVEr change the feeling
that so many people come to Grand Avenue for. We betieve in vision for the future. Who are
we on Grand Avenue? What does Grand Avenue stand for? Thinking ahead in planning our
community is always a good idea. We want all of our neighbors to prosper. However, if we
are not having lin�itations on what big businesses are complimenting our "Grand Avenue .
Philosophy" we will all end up losing. If we are letting big corporations come into the area,
they must be unique. Such as Anthroplogie on SOth and France or Patina Boutiques. Also,
they must be responsible for their neighbars. Parking is a hnge issue on Grand Avenue. No
exceptions or allowances should be made. We think they should help with the parldng issue
by creating more for aIl of us.
Thank you for taking the tixne to read this.
The staff of Fringe Sa1on and Spa
1129 Grand Avenue
651-222-2132
� ,
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John Hardwick - Grand Avenue Parkiog Issues
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From: "Lucy ]ohnson" <lucyhjohnson@msn.com>
To: <john.hardwick@ci.stpaui.mn.us>
Date: 7/Z9/20057:23:17 PM
Subject: Grand Avenue Parking Issues
Dear Mr. Nardwick,
My name is Lucy Johnson. I live at 845 Lincoln Avenue,
4 houses from the corner of Lincoln and Victoria. I will be
on vacation on Monday, August ist and unable to attend the
hearing before the Board of Zoning Appeals.
I want to express my concerns with the parking on Lincoln.
It is very difficult to find a parking space in front of my house
currently, on a Saturday. The alleys are very congested with
trucks, loading and unloading, and cars parking illegally in the
a(ley way.
The neighborhood can not absorb more parking. Please do not
grant a variance. The parking situation is out of control. EQ Life
• needs to provide additional parking if they are going to create
additional retail space.
Thank you for your attention to this matter.
Sincerely,
LucyJohnson
651-224-7102
�
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file:l/C:�Documents°lo20and°lo20Settings�haxdwicj�Local%20Seffings\Temp\GW}00002.HTM 811l2005
Page i of 1
John Hardwick- Variance for EQ LifelGrand Avenue �. �" „: �
�
From: "Roddie Turner" <roddie.tumer@comcast.net>
To: <john.hardwick@ci.stpaui.mn.us>
Date: 7/29/2005 334:51 PM
Subject: Variance for EQ Life/Grand Avenne
1 support the SHA DistricE 16 Pianning Council's appea! of the cify's decision to grant EQ Life a zoning variance.
Please do not allow this non-compliance with the law and rescind your decision. it is the wrong message to send
to developers, landlords, and citizens fhat the rules exisf for everybody else.
Thank you,
Roddie Turner
i012 Portland Avenue
St. Paul
•
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GRAND"'� J�' AVENUE
Urban Tradition. Hometown Charm.
867 GRAND AVENUE, ST. PAUL, MN 55705 PHONE: 651.699.0029 FAX: 651.699.7775
John Hazdwick
City of Saint Paul
Office of LIEP
8 Fourth SC. E. Suite 200
SaintPaul,MN 5510]-1024
GRAND AVENUE BUSINESS ASSOCIATION
July 26, 2005
Deaz John,
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Although we welcome eq-life to the neighborhood, the Grand Avenue Business
Association does not feel eq-life should be granted a vatiance under the "Rule of 5."
Parking is already congested on this part of the auenue.
VJe would like to request that eq-life reconfigure the renovation to work within the
allotted parking spaces.
Sincerely,
Executive Committee
Grand Avenue Business Association
eargia dahl Tom Johnson
President Vice President
cc:
eq-life, Mike Marolt
Council Member, Dave Thune
Summit Hill Association, Jeff Roy
Exeter Realty, 7im Stolpestad
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Fred Shetka
Treasurer
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Sheri Goldyo ������
Secretary
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MINUTES OF THE MEETING OF THE BOARD OF ZONING APPEALS
CITY COLTNCIL CI3AMBERS, 330 CITY HALL
ST. PAUL, NIINNESOTA, AUGUST 1, 2005
PRESENT: Mmes. Maddox, Bogen, Linden, and Morton; Messrs. Faricy, Ga11es, and Wilson of the
Boazd of Zoning Appeals; Mr. Wamer, Assistant City Attomey; Mr. Hardwick and
NL�. Crippen of the Offrce of License, Inspections, and Environmental Protection.
ABSENT: VincentCourinep�
�Excused
The meeting was chaired by Joqce Maddox, Chair.
Snmmit H'itl Association (#05-128190) 870 Grand Avenue• An appeal of a determinarion by
zoning staff regarding pazldng requirements for a spa proposed to go in the basement of the Grand Place
retail development
Mr. Hardwick showed slides of the site and'reviewed the staff report with a recommendation to uphold
the detemunation of Zoning Administrator.
Twelve letters and one perition signed by 141 neighbors, were received opposing the determinarion of the
Zoning Administrator.
One letter was received from Distdct 16 opposing the determination of the Zoning Adminishator.
Mr. Hardwick reminded the Boazd, a lot of the correspondence we tiave received on this refers to this as
a pazking variance, this is not a vatiance and the Boazd does not need to maka the six findings required
for a variance. This is an appeal of a decision, an interpretatiott of the aode by the Zoning Aduunishator.
The testimony in this case should be limited to those issues surrounding that deternunation of the code
requirements.
The applicant MEli12IT CLAPP-SNIITH - SUMD'I[T HII.L ASSOCIATION, 785 Goodrich Avenue,
was present. Mazsha Odman, 964 Goodrich Avenue. Both are members of the Sunvnit HilI Association.
Ms. Clapp-Smith submitted a handout of her presentation. Four main reasons that the Dislrict 16
Planning Council objects to the staff s parking arrangement for EQLife. They believe that the intent of
the rule of 5 has been to allow existing retail uses, particulazly in older buildings with limited off street
pazking, to allow re-use of those existing spaces, Without hardslup to the new tenant. 1n the case of
EQLife the rute of 5 is being applied for a new use to come in, to expand the e�risting retail space in an
azea that was previously used for storage. District 16 does not think that the rule of 5 is intended for
retail use e�ansion. The second point is that providing the secondary t�all access to the EQLifa
baYl�rooms does noY jasiify reclassification as common space. All of the tenants in tkus buiiding bave
their own bathrooms. A hall way door is being opened so that the bathrooms for the EQLife facility can
be accessed from the fiall. Ms. Clapp-Smith stated she does not believe that ttus rises to the level of
reclassifying it as a common space, given that other bathrooms are provided. Realistica3ly it is not going
to reduce the pazldng demand by two spaces simply by unlocking this door. Third the pazking for the
storage conversion to a spa, under staffrecommendation has been calculated using the mutri-use retail
definition. They believe that the pazldng should be calculated for the 2,138 square feet being converted
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IvI"mutes August 1, 2005
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&omstocage to a spa, shauFd be calculated as a spause imder Section 63.207, which iequiresparkmg for
sparts club, heaith spa, karate club at 1 space per 260 squate fed plus 1 space per empioyee. A spa use is
a service use. A service use is distinct firomretatl and it tends to have a higherratio of employees to
customeca. So classifying it comctly as a health spa and calculating the.parking as such seems
appropriate. She noted that in a packef that was sent to the Boazd when the origival par2dng was
approved for whicfi pazlmig was a big iss¢e. Tfiero was a Ietter from TomBeach Yo PID (Planning and
Economic Development) and 7 IEP's (License Inspection, & Fnviroamental Brotection) Zonmg Staffs.
In the letter they were talldng about the new parking stand�tLs for mulfi-vse retail centecs and they said
m theff conclusion that not all af the multi-use centec aeeds to be retal as long as thece is a vaziety of
retail. That means some of that space can be used for office, xc.statsant, etc. BuY pazldng for �utants
wouid be calculated accor3ing to ffie standazds lisFed for tfie type of resiainant Parldng far office space
would 6e based on standards ]isted for general office. Under ihe same philosophy if IIus is a secvice use,
d'nstin��t from a ietail use, as restauiants and offices are it should be calculated under that service use
under that spa definition. Point foLU tfie nile of 5 can oniybe appfied once per pzoperty, IYthe rule of 5
is used now it cazmot be used again by any tenant in the Gz�d PIace DeveIopment which will ]imit
gotential reuse optiotts in the future.
Ms. Clapp-Smith pointed out the calculationsaY.fhe boifomof��age. Whereby we have arrived at
• diffeieatnumUers_ T$e staff calcnlationhad 2,138 = 280 arriving at 7.2 ihey then sulitzacted 2.07 for �e
battunom access aniving at 5.13. in addition to not agmeing to how this was calculated we were
nmm�ing the numbers today and discovered that 2,138 � 28Q = 7.64 which when you subtract 2.07 -
5.57 and therefoze does not appty undec the tute of 5. Secondly we would recommend that the 2,138 is
calcutated divided by 260 arciving at 822 plus the mimber of spa employees and that you do uot sabtract
Yae batiuoom space. Finaity she noted that pazldng was very imporfant and carefuily ctafted elemenY of
the original site plan. Assutances were ivade that the parking was going to be adequate for tbis building
at tfie time it cvas conshucted and in the fulaue that it would not exacebate t6e shortfati that already eusts
in the area. She thinls it is inapgropriate tl�at foiu yesis later w�e are tchunmg with a new user who is
aslang for an expaasion of space without providing the pazidng. She is fmther troubfed tI�at EQLife has
signed a lease arrangement, is advertising its asival, and interviewing emptoyees before resolutioh of the
p�idng matter. Tliey aza creating the's own hardsfiip and placing tremendous pressure on the Sta� tfie
Comm�urity, and the Cify to except iheir choice that is si�ificantly smailer than their other store
necessitating expansion and then asldng that tLeir pazldng shortfallbe overlookecl Please uphold the
code and do not exa4perdte the azea's existing parlong bucden.
MarsUa Odman, stated she will be very brief because there azemanp members of the comm�mity that
would peihaps I�7ce to say something. She submitted handouts t,o fhe Boazd, which were passed around,
of the cuirent EQLife sYore in RicHfield. Thia is imagined, on Grand, fo be smalIer. The Richfieid sYore
according to tfieir website is 19,OOU sqw'ue feet and that does not exist an Grand, 'Chis ia tu illuminate
some ofMeiriitt's comments about use. The portion mazked in red is ffie primary reta� area The code
says dcug stoies shallhave I paddngspace fot every 250 aquare feet. Saton 2 pazking spaoe for cvay
250, spa 1 Parking space for every 260 square feet IL is truly a drug store becavae their website says they
are prepared to fill up to 600 prescriptions per day. That does not inciude �e spa, the besuty saIon, that
does not inctvde the classrooms, ot the retait tcaffia 'Fhey say they are prepared to fitl6qp preseriphons
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File �105-128190
Minutes Augast 1, 2�65
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aud ifyou frequentthe infersecbion of (�snd and Victoria, is sort of a shockiag thought We board
members ofthe District 16Plannu�g Cow�cil havereceived many, manY� P��. sttdpedestrian
��Y � Pr�Y ��8�m ��e�dtLatthe peaple at the heariagwho wece opposed to Uus
t�i���d rdise $e� t�and
Mr. Galles quesfloned wfietfia the pbam�acy deIiveis? Ms. Odmaa stated she does notlmow, what she
can teil Uus Board, fromwHat is on fhe website, fit! inYo�a nau�, P�P�onaumber and wfiat storc
yau wantto pickitup at. Mr. Galles questioned delivecy is not an optiouT Ms. Odmaa stated tFtere is
nothing on the website about their delivering tfie prescrip6ons. Ivis. CTapp-Smith stated that wouTd be a
qt�sli� far them.
Ms. Maddox ins9xucted flmt Uwse m favor for tlie St�nit HiIt Assaciafiott appeai shottid come farward
now totesti£y. Those testifying should limit their testimony to 2 3 minntes and they should nottepeat
anp points made hy sameoae else.
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Eric Ixin, &94 Graad Avenue, stated that he owns fo�s apazfinent buiidings witLin a blwTc of the comer
of ('mend and Victozia, nmmediately to ifie west ge stated tt�at tbis 2s dealing witfi tecLmicalities hem, he
t�eiieves tbac if che zaning code says somerlung can happen it shoulave auowea to tiappen. suwaver, . �
�ese desi8nated bathrooms as shand dommoa axea is kmd oPa fax�e. Hc would suggest ifthat is ieatly. •
8omg m 1 �PPen �Y� �e owner of those 6aftnnoms should deed those batl�rooms to tfie common azea.
So fhat if is a nativat owuer stup of � caaffioa area andnot}ust aPaPe� shu�n& p�S i¢the areais
homb2e and fie is euaeaU3' ePPFA�g for a pazkiag permit f� his bwldiugs on Crzand i�ecause ofthe
pmblems that e2dst m the area. He reques�eci Wat the Boazd tbinkvery hard about not increasing the
Paz'I�g Pr�blems.
I3et�Sergmau 105 Canibridge, stated sbe bas owned a busmess on G�and Avenue fot the last 2I yeazs.
She woald reattp lilce to see EQLife spend'mg tfieir money on solving the Parlang Pmblem mtfier than
counting pads ofpazking sPots. If they did t6at �ey woukl be a savior Yo the neighborhood and everyatte
would love them. If certam frmds of gaods and services xeacfi a satura6on level in a given azea, �d the
goods aud services offered by EQLife iepticafewhat otfier busmesses on Grand do_ It is not l'�e a spa
offeimg wiil increase the num6ei of facials a person gds. R wiII just cut the pieces of the pie ia smaiter
Pieces. The nnmber of existing businesses tbat EQLife comp8tes with makes them a less tE�an desirable
additioa to flte avenae. There are so many other options ofinerci�andise and services that coutdbe
offered to o� neighbothood eusroromers the metro area residents and oia out of town taarist customcrs
ratber than dup&cate wLat we atready S�ave on G[and Avenue and diluting it
Ms. Maddox iusiructed the Board Uaat if they had any fluestions toJ�.1�P rigbt ia.
�Gallesrequested that those testifying if Uieyown a business tLatfhey identifywhatbusmesathey
NancY Breymeier,1222 Fairmoat, state@ si�owns-twa busmesses on Gxan3 One is Amore Coffiee at
917 Graad, t6e other is Strategic Finaaciai Group at 745 Gcand She has been ot� t�eBoazd of
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Ivfinutes August 1, 2005
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GABA (Grand Avenue Business Association) and beea on the Facecutive Commitfee of GABA. For
months she has been sitting on the Pm�ng Committee and ttad to Ieave because it was so conte�ious that
nothmg seemed to get doae. She vas stayed on tn be available as someone �e committee members cau
talk to. It is nothing agamst EQLife. Bnsinesses on the avenue axe good. Different businesses bring in
different peopie. This parking issue that Grand Avenue has is amazing and is tearing the sheet aparG
She wouid wish tfiat the Board would vote to not allow &is to bappen, simpiy because this pazidng issue
nceds to be resolved This would just mske it wocse.
Rosaiyn Gold6erg, 1023 Gcand Avenue, has lived in her home for 25 years. It is widely lmown tltai tfiere
is a severe parking sfiortage on Grand Avenue. To t3�e extent tBat they are wnsiderin8 P� P�8
atong Gtand. This alIowance will only exacerbate tke e�dsting conditions. it was mentioned ttiat the rute
of 5 came into being in 1944, a loY t�as Lappened "m the last ten or eieven yeazs. She dces not linow
whether this was meant for such a heav�y congested area. It is known that differeatbusinesses are
claiming they Lave x-number of spots for their business. In reality igthose parking spaces wete all
marked for eacfi business that claims Yhem, those parldng spaces would have about twenty different
businesses clam�ing the same spots. Becausc the spots do not e7cist, so you cannot give away what you
do not have. She requested that tfie Board enforce the existing rules, and believes that all the previous
variances and exceptions Lave created this problem Here is something f� tlie businesses fo consider. If
• the neighbors are angry wiii� the businesses, thcy ue not going to frequeat those businesses_ If we put in
pecmanent parking that means tBat people from ouSSide of ii�e area will not have any place to pazk. So
her question is "Who is going to ahop at this businessT"
Dan Dobson, 801 Goodrich, stated he fives about two and a halfbtocks from this property. Ae has a
histoxical view of this project, he has been involved yvith �his project since five years ago. Noting tHat he
is atso a memher of the Summit-Hill Association, however, he is speaking as a citizen not as a member
today. There t�ave been aYleast two surveys showing a shortfall of severe proportion of at least 1,000
Pazking spaces on Grattd Avenue from Lcicington to Oakland. The ficst survey that was attached to the
origina( sfte plan showed that there are'J56 space shortfall ofparidng fzom Avon and Dale. The second
one done in 1991 shows 981 shortfall of apaces from M'ilton to Oak7and, Mitton is one block east of
Dale. Obviously tfie problem tias gotten far more severe in the last foiuteen years. 'L'Lia was $ s�fa��
parldng lot before �ctoria P1a�a was bv�t In 1997 there were 14S sarface sp�ces, p,t ttat puint ihe
developer lvred a contractur tu come in and makc it a gay ]ot To accommodate thsY AQco Paridng
reduced the nwnber of spaces from 145 to 106. Because theie were a, n�nber of spaces ihat were
accessed off the alley. To make those paY spaces they had tA be redu��, �. Beacfi sent a letYer to the
cievelop�r dated Apri115, i997. He cmlyhad one copy of thisletter. Mi Beacfi totd the devetoper that
he could not reduce tfie number o{parking spaces fi�t 145 to t06. But the City nevet enfoiced it Then
when the project ca� beforc the Summit IIill Board and thea later this Board, he argued'against it
They contended �at 8uce years befare there were 145 spacee tfiere, those apaces should be replaced
before aay newretail, Again the City, LILP didnot do thea duty and allowed �em ouly tn replace 106
spaces. Pius 102 for the new retail. So we have gone &om 145 spaces in 1997 to onty 208. So these is a
sharifall already, as he said, tfiey lost tfiat argument five yeazs ago. We also raised tfie argument about
fhe spaoe in tfie basement pTe ques[ioned what wouldhappeu if a retailer ever wanted to go into the
baseinent7 We were ass�i8iatwill nevertappen and they calcutated it 5umttrit Hili provided a
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Minutes AuBust 1, 2005
Page Five
dacument tlsat showed tbat they calculate3 the space m ffiebasement for 1 for every3,000 square feet.
PIowEQLifewanis to come iix and fake I,238 squaxe feet andmake it a spa andunfoiiunateiy the �ty
LIEP, ance again diops ihe ball and calovtates itnot as 260 w}dch is appmpriate for a spapius the
employees. ifwe take the actuat n�ber as Ms. CSapp-Smith said, T.6 spaces are.needed and if this spa
ttas foia employees they don'tnced five spaees Eheyneed eleven. Tltey are tryingto shoe horn it mimder
ti�eruYe of 5 it just dces riotwoiic. There is a sevcre problemoa Grand,tFus devetoper shonldnotbe
allowedto usethe iule of 5 because itis simplyaot appropiiate. We areaat lookiag at 5 spaces fiere we
are loo2dng at a mininumm of 10 or 12. Whatwe are seeacg here is an attempt to tty and play with 6ie
code in a way he has never seen FEe thmks it is mapproptiate. EQI ife can open tfieir husiness. Ms.
Maddax zequested tbat Mr. Dobson wiap it up Mr. Dobson stated we are onty �ng ahoutthe spa,
ffiste is also Can'twu Coffee there, alasscooms thal are aLso being calculated at t7ie 280 mstead of the
Iessernumbeis. �
There was opposition prescnt at the hearing.
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Lvlika Marolt(Ysp) s►ated he is Efie pcesideut of HQLife, wbich is a whally owned subsidiary of tfie Best
Bu9 Company Mr. Macvlt submitted a flyer f� EQLife to tfie Boazd He sfated tfiat this will introduce
you to some of wLat EQLife is planniag to bting to the C�cand Ave¢ue area and aTso to express our
willness to be as creative as possibte ta helg mutimize some of tfie impact of us becotmng pact of tfie •
co��mity. Some of these ane m nthershc�ps on Gcand Avenae, 6ut soa� of them arenot Wbat we
hope to bring to the comunmity is a new lookand anew feel ofwhatheaith aad wellness can be fbr the
cons�er. Ms. Maddox shated tbat this'ss notzelevaat to flie case and we are discussing the paziong,
incm, �Q Mr. Mamlt to mave fo the parl�g issues. Mr. Ivfarolt staYed 8aat they �rst met with ihe
Summit Hill Associafion oa June 30�`. We offeced a mnnber of solutions to supplement tfie parking that
goes on m the pa�Cing xamp. We offeted to subsidize parl�g for consumeis, employees and at tLis point
in time those suggestions aud offerings have beeu rejectedby tfie S�it E�ill Association. Recently we
teceived "mformatioa &om the previous tenant, `Boimd W be Read," to undersfaad exacfly how many
eustomeis they had 'm temLS of traffic m tfieir sfoxe eacfi day. Noting ti�athe was quoted as having 400
customecs in their Richfield store a day, Bound W lie Read foIlcs were closer to 900 or 1,U00 customers a
day coming to their store. InRicbfield we do about 150 hansactions a day. Bound to beRead, according
to the recarils they gave ns, did 492 fransactions per day out of that tocation. So m eompffiison ths traffic
demands fl�at we wi11 create are faz less than wlmt was created by Bound to be Read at the Gsand Avenue
tocafion.
T«idHaztman, 28UO Iasalle Plaza, attomey fot EQLife. Weliave a lot oftespect for the factthattLere
is a parldag siWation on Giand Aveaae and fhe Snmmit-FHI[ Area. Cerfaiuily EQLifebenefit� from any
efforts to addre,ss that. As a legal matterthOSe padcing concems with all the history thathas gone oa with
tbis issue sad this development is fraukly, umdevant. We aretalking aboutthe applie�tion of flie Zoning
Co�. The law:eqtmea d�at the application ofthe Zoning be in accordance with � ptain sad
o�dinarYmeanmS and that it be atrietly constr� in favor oftfieproperty owner. Noting thathet�as
o�ctlined thefr argumcnt essentialty withregazd to ihe legal anaiysisofthis situation. He submitted a
document to the Board forthe record Thcy fited su applicatiou baekinAprit af2005 for approvat of
change inuse. We did thistbmugh$ieproped,q awnerw6a supporis ourposition. T.00ldng attfie law
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and aY w3�at the Zoning Administraf.or did 'm this case, we disagree witfi ovr opponenfs to this raling. If
the code is read the way they wiite it, it is unaznbig�wus. Shated resttoom space, it does aot matter why
they sl�ace it, it does not matter wHat the use was before hand, dces not matter how they shaze it, sliared
restroom sgace is desigrated differently from other res�oom space. There has been a lot of talk about
fiow fliaf is some �d of fallacy or some coahivance under the code. Ae dces aot thumktLat is mformed
by the facts of why ti�is res400m space is being cl�anged. The reshnom space in this case is being
changed because that is the way the building owaer originallyplanaed i� Wfien this bu�lding was
ariginallq planned it was supposed to have a tenantresiroom space for ail the tenanta of the lnu'Iding.
Boimd to be Read agamst the advice of the builiiing owner asked tbat it t�e integ�atcd'mto ifs retal space.
Now EQLife moves into the bulding, that reskoom space does not work for its business. For its business
it cannot Uave peopie who aze coming ia for theic customec §ecvice experieace go dovm into some
haRway restroom space righf at the entry. What they need is a more consistenf experience for their
customers because they are providing services that aze integrated with the reshvom experience as well.
So they are creating larger more expanded restrooms a# the lower leveL Those L�trger more expanded
ies�ooms will he tfie resfrooms for EQLife. They Bave no need, or na des'sre to continue using the
restrooms that are cu¢ently up at the main level. For the use of the other tenants of the building for their
em�gloyees, because the aflier ten�fs of the building were requued, when Bound to be Read was there, to
cmate their own makeshift batluooms in their own space_ They were not intendmg tUxt, it was not the
intended originat use of the properiy. The hmlding was intended to ba.ve a shatedrestroom space and
therefore use their retail space more efficientty. We aze also mal�g if avaifable for the service personal
in the bnilding, for them to have a secure aocess area, whem they can use restrooms where it dces not
disrupt the cusbo�r experience_ Thus there are perFectly valid and soundbusiness reasons why the
restroam space is being conveited to a shared use. In the end none of tfiat matters, the Code says that
sbared restraom space shall be h�eated as storage space and that is all we are asking. We are asking tbat
Sie Code be applied tfie way it is written 'Fhe oti�er thing tbat k�as been raised is wheiher the ruie of S
has been applied appropriately. There has been some question on the mathematical sia'lls of the Zoning
Administrator. On teims of calculabng space. He qiiestioned whether the calcutatious had been done tfie
2,138 +280? Ms_ Bogen stated it comes to 7.b4. Mr. Hartman continued tl�at he Lad been infotmed t}�at
the way it works out to 72 is tliat the prior use has to backed out than you end up with 7.208. He
believes that they rely on the calculations of s� The other azgume� that has been m3de, somehow
becausc of past history or past use ef ihe pazldng space, is that the rute of 5 shonid not be applied to this
buiIding. No one has pointed to any basis ia the code for that or any reason why this c�srent building
owner or this particular has somehow waived the ru1e of 5, or somefiow waived its right to have the
nile o£ 5 app&ed for Uus 6uild'mg. There is no question tt�at Uus is a change of use, tbat is the whole
basis for the SHA appeaL Therefore, the rule of 5 applies.
Mi'. Hazlwaa cantinued finaIIy thece has been a lot o€discussion regarding traffic eoncerns and general
traf�ic problems in the area. EQLife agees tbat the intense hisWry of haffic probiems on C.rand Avenue
aad the Summit-Hill area need to be addressed We bave a gceat mceative to do fhat. BuE the opposition
to this use is somaHow based on the fact d�at EQLife w�l exasperate Usat situation mstead of hyingto
relieve i� As 14fi7ce submitted and we are happy to submitthe tcansactioa fivm Bound to be Kead. The
hansactions from Bound to be Read were sImost double per day ofwlmt BQLife has projected. The
appositionhas made a lot ofYhis 440 customeraumber. As o$iera liave nofed the 400 was takea from a
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Page Seven
Richfield sGare thatwae nearly 20,000 squaze feet If astwththe zoning code and ffie peaple present
assame that the sqvare footage has a direct retations5ip W aastamec traffic tLsa the cutrent pmposed
stoze of 16,000 squaTe fect shouldUe imockeddowato 320 castomers based on that calculation alone.
So already we are tati4ng abouE 320 expec6ed austomers at Bte EQLife store, whicfi is significanttY
reducedfromthe eAS6ngtenant. Nobody from the opposifiaahas sfiown any evidence tliat EQL�e's use
evenifwe take 9ie largernumber, is going to be greaberttian dmt ofthe eustiagteoant In fact s21o€the
ava�able data shows tbat it wiri l�celybe less. Tfiere f�as also be� discussion about whether tfic spa
space should be specifically designated as spa, eveatfiougk 8ie entire tue of the store as oth�s, in fhe
opposition bave testified to, wt71 be in fact a mixed use telul store. It will sell books, it will have a
P�Y. a coffee shop, other life styla classes de. The codc does not opecate tbatway. Tha code
provides thatthe overait character of fhe space detee�ma�es its vse. It is a miced usc retaIl with respectto
the nsable space fherefore; we te&eve tbat staffapplied the code coaectly and the $oard, as a matter of
1aw, has to deuy the appeal of die Stmmeit Hli Associaticm. EQLife I'ke auy basmess ou Ci�and Avenue
has a great incentive to workwith the Summit H'ill Association to achieve the resolution of 8us mat6ei�.
Ms Maroite has aiceady a#ended the Su�iE H7I Associatian meetiug and workecl wiBi them to tty and
oome up with solutions, We aze hopeful tliat we can contmue fo work tbge8ier to find a way to come up
with a resoiurion tUat heips the pazSdng sitvation oa Grand Aveauc and in t�e Summit FI'ill district
Ms. Linden stafed tfiat wfien peaple ga into a store tobuyboolss that is not a long pmcess usuatly. When
sonceone goes to a spa or saioa tl�at has a teadency to be a 3ong pmcess, Sfie dces notthink�at tfiey caa
say 320 is the namher of customers tluy w�t I�ave. Because people w�lbe there a little bit longer imdec
the spa. She qnestionedwheHier EQLife woutd considec ia the interest of appeasv�g the people, reducing
the square footage in order to acEuatly accommodate the actvat allotted spaces? Mr. Aartmanreplied tbat
wHat he is hearing is "Wou1d they be vci�tiing to reduce the square footage w elimiaate ffie use of ihe
basement space2" Ms. Linden reptied �t necessarly the baseme¢t, butnduee tfie square footagc so fhe
act�aI square footage you Lave is cemp3iant with what evet spaces are avaitab2e. Mr_ Hactman stated that
there aie a nimmber ofbus6tess zeasons 8�at Mt1ce can falkabout as to why the space simply canaot work
if it isnot part ofa consistent customer elcpeiience tr�at requires the sqtia�e footage tbat we have ouflined
on tfie p2an. That said the services we provide, hooks do not take uQ as much space and ceqt�ired a faster
t�e fo make a pzuc5ase. It is precisely for t5at reason t�mt we beIieve that we wt�i fieip tu aticviate thc
tcaffc problems. The services we ace providing take a lot more space to provide, some bf the spa
se�vices or the pLaruiacy azea wfiicfi reqimcs more space tEtan just sCackingbooks oa iegular shetves.
We also be&eve �at 8�e ktnd of cuscomecs we vc� be attraetiu8 because theg are yppoinhncnt based, w�71
be more U7ce1y to makeuse ofthe off-streetramp pazking9�at is ava�able, and we have ofFered to
validabe pazking for the off-street ramp. It is notable that the aff-sheetParking ramp is mast daya under
ute'lized.' Therefore, we belleve tbat o� ase vcn11 actually improve the pazking situation on Giaud Avenue.
Shet�y Baais, an emptoyee ofBouad tobeRead, stated that there is oaly�elime that she can �cali'm
ffie tlaec and-ahalfyeazs flistthey6ave been open, $iatthepaddng iawphasberxi futl. 3he thinks thatis
ia�po�lanthere. We wentthrotighUvs whole thingwheaBwmd W bcRead opened,P�Ptc weuf fHcough
aad countedhow many ebeas vrehad in rnir cat� we got catied on everyflung andinffie endwhiatwe
elosed ourdoars it was Ifke a fimeca}, evetyone came in tb fell us fiowmuchthe}r woutdmiss us andtbat
we.were a grestpart ofthe comaumieythece. She � thatEQLifew�llbring the aBmeto the area.
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Minutes August I, 2005
Page Eight
Ms. Maddox explained fhatin a few �utes ahe would caIlup the Su�nit HiYl Associatioato re£ute any
testimo� theywanted to. However, right now we wouidl�ce staffto co� £acward and answet
questions. �She questioned who that staffpesson should be. Mr. Hsachuick replied that sta�s comments
uniess fliey gertain to some questions immediately shouldbe �erved until after tfie public hearing is
closed.
Ms. Bogen stated her question is about &�e calculatioaa Mr. Hardwickre,plied �at canbe done without
having the pubfic fieariag opea. Ms. Maddoz requestcd that Mr. Seach come forwazd.
Ms. Bogen sfated that in the Ietter o£ April ll tbat went to Ms. Lane, Mr. Stolpstad sets out wbat the
wttfiguratian af fhe basemcnt is going to be_ He says 954 square feet foc men's and womads locker
rooms. Nine Fumdred thirty eight square feet for several s�nalt treatment rooms and 71 sqnare feet for
manicure andpedicure rooms. Portions oftfie open azea will be used for setting, yoga, and pilates. So
there must be other square footage that is going to be used for exercising. When adding just those
specifcc uses it comes to 2,564 sguare feet in the baseuient, she assmnes that some of fhe stornge space is
being subtracted. She stated tBat her question is how can they say portions of tfie open area will be used
far sitting, and }roga? Mr. Beach stated that belongs to an earlier proiwsal which he informed EQLife
there was not enough parking for that, so the floor plan was changed until iE did work. There were at
� least ttuee or fovr different floor plans tbat were submitted. They kept getting smaller and snmller unh7 it
' met the Parldng re4uirements. Ms. Bogen nuestioned wfiether thece was a floor plan with numbeis an i�
Mr. Beacfi stated tUat he thivks that the site ptan itt the packet has the numbers writtan down on it but it is
not totaled.
Mr. Beaeh stated tLat thece cKas a question on how the pazldngnumbeis wece deternsined. He w�11 try to
expiain that for the Boazd It is found 'ai finding 3A in the staffreQort. He cawe up with the finding that
the cLange from stora�e to spa would'mcrease the pazking requiremeut by 7.20 pazIdng spaces. He
ttnul� thxt the objection was thai if you divide 2,138 square feet liy 280 you come up with 7.63 but tl�.w
whatyon also have to do compaze that to what the parking was that was required when it was storage
space. The difference between them is tha iucreased Pazking spaces, whea it was used for storage it
required about .4 spaces so he subhacted .4 from 7.63 aad came up with 72 which is the nwuber in the
staffrepork That is how he did it and is confident that 7.20 is correct.
11Is. Marton questianed tbst this was not catcuiated es a heatth sga, or as seetion 63.207 indicates, Mr,
Beach stated that we loolced at thc overall use. Ms. Moxfon questioned whether it was more than the spa,
use. Mr. Beach replied thene are a number of uses in there but the overall use is m,tail.
Ms. Bogen questioned whether in the code it states Hiat the use canbe eapaade��er EMazrjasEreusc-- --
existing rets� space? Mr. Beach sfated that tu believes the staffreprnt quotes tEsat sectioa and it tatks .
about a change of use. What staffia saying is thattfie use is changmg fmm staage to retazl comm�rcial
development Ma. Bogen further quearionedthe sforage space is changing to spa use sad tfieiwok store
$P�, T� �s changing to anot8er retaii use. Mr. Beach stated that we said the basement was going
&omstotage to the new use which we are calculating as co�ereiaY retail use.
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Ms. Maddoxrequested tbat Mr. Beachhelpfiec imdecstandmut�i�se vecsesheaith spa? She fittther .
qaestionedwIry he was not cailingtt� spa a fira[th spa, wfiicfi sfie tfiought itwas. Mr. Beach repliedtt�at
$ie EQLife spaee ltas a aumberofuses, t�ene is s Pharmao9 there is the space inthe basementfbatwilt
be ptimarily a spa, there is a clsssroambut the ov�a31 vse 4s aietal, sa xather tLan divide it mfa
subsectians and then caiculating it for each subsection we instead Iaoked atihe overall use. VJhich is
consisoeatwithwhat we do nacmally for atu�d'mg I�ce this. Ms. Bogea stetedbut atf spas8a�re retail
uses, theY seIIbodyIations, naitpolish and everythmgelse so shc doesnot sce whyfl�is is not consid�ed
a spa for Pazldng reclu�emenfs esP�i�Y � a�req�aea so manY more eu�loyees tGan a hook stoce
miBhY re�uue. Theyhave agict�ehere oftlris toag deskin 8ie basementwith a couple ofcompute2 a
phone 4mt is about d�ree empioSrees vvar$ilustmnnm8 t�e sps and ifyou have four places where they are
doing pedicunes tLat is fois employees. 5o it seems fl�at if you just look atflie employces parldng spots
they are going to need more pac3�g. Mr. Fiardwick sfabed thathe thmtcs that the confusi� comes in
betwe,� retait and mutti retaii. A multi-use reta� bwlding contains many nses. Some of those uses may
zequire more thau a reYail nse so� may requine less t�an a retail nse. A single refail use buitding
reqtrires pazkmg at a rate of 1 space far every 225 square feet of gross IIooc azea. So wfien tbat_
requirement regazd'mg mmlti-use zelail buildings was developed and set at 1 space for every 28Q sguare .
feet of gross floar area it aiready took in to considecatian ti�at some of the uses wautd requffe more
paci�g, same offfie uses such as office�se would requue less parlting, So that one-space far 280 sqvare
feet encompasses many differe�t uses witbin tfie budding. Tfie only exception bo t6at is restainant space. �
Restaucant space is fig�ued sepazateIy in a muki-use retail btuIding, because a ccshaurant requues so
much Seate� Paz�nB•
Ms. L'mden questioned wheti�a Cznbou Coffee was consideied a restaiusnt? Mr. Aazdwick repfied that
depeads. Certain rc�uractts are consideted retail uses based ontfie numt�er of seats tfiey I�ave. Once
they exceed a certain number of seats they become restaucanfs and �e¢ paztdng is caicutated af Hie ca�
for �esburanls frisfead of the rate for a retal use.
Mr. Wilson questioned when a zestroom is set aside as commoa azea, dces just saying tbat itis a common
�ea make it a common azea2 How is ti�t facideteimmed2 How do Iproee to the inspebtor thatis
cumiaoa area7 Mz: IIardwick stated tLat EQLife Las submitbed a floorplan � shows tLat tfiere is
access to ti�at restroom firom more than one area. There is access from a shared m�a sud thraugh EQLife.
Now we are uoE going to provide bathroom monitois to see wfio is using that space. But aocotding Yo thaY
flo�'plan tba#bafluoom is accesseble to oti�people and ot6ertenants than EQLife. That is all.6iat the
code requires, it does'not saythat iti�as W be a commonceshoom, It canbe a SharedreSEroony A shared
restroom is coasidered common space forPaddngre4uiremcnts. Tfie parldng is 1 per 5,40d aquate fcet
He ttunks &e confi�sion comes in when sayiag common sAace,it daes not have fo be a commonres(room,
it has to be a sBared reshraom_
Merrit Ciapp•Smitfi stated 8lat she tbinka tbat Uieir originai fo�pointa still s�nd. The mtent ofthe rulc
af 5 roo be fur 9ia r�nse ofexisting spaees. 7n matters sach as variances you taka into accovnt the iatent
of 9u lawand shG�inks �at �e inbentas manYP�P� m theCity understend for$ie ru1c of 5, is for
teuseofexistingapaces. Itwas deveioped to assiat oldecreta� spaces ttmtlnve limited off-sfrcetparlang
aptions i€any so ifa change ofvse comes intbat is sligfifly more intease 9aatuse caQ reocwr.
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Page Ten
Ms. Clapp-5mitfi stated t3�at she does not thinkt8at it was developed with tfie intent ar has beeu app&ed
with the intent of accomQeodating zetail expansion in ahuitd'mg tbatwas bwlt foia yeazs ago with the
promise that they had adequate pa8dng for its tenanYs. She imdetstauds haw Mr. Beach arrived at }us
flgures, however, they wonld st71 contend �at 6ie basement space shouid shll be used as a Health spa
As notedby the attamey for EQLife, he wanted to consider tbat Uie spa is a cectain ldnd of service and
maybe it is not going to be as intensive, bringing in haffic. But Uie code has an approximation of what.
should be provided for a spa u§e aad tBat catculation for tl�at spacc comes to 8,22 plus one space per
employee. She thinks Shat itisxeasonabteto assume tt�at a spa use is more employeE aitensive. As to
how tI�e bafhroom is counted, wfio is rea3Fy gomg to use it, is this iuq�acting tfie parldng in the area ? She
does not tHink it is, so tbat calculation should not be applied to hetp aclrieve the nile of 5. For those
ieasons we standby our four pomtc, objeet to the nile of 5 andhow the calculadons I�avebeen arrived at
Ms. Maureea Flahaven, 1673 Linooln Avenue, cha's of the Zonittg and Land Use Com�Stee_ She
cbaaed the meeting with fhe peopte from EQLife and during that testimany she made notes. They were
told t3�at there woutd be between 1420 employees in the building at any one time. Tfiis indicates to you
tt�at ttris is not tfie usua2 retail meichant that is going to have 2�7 cYerks to assist you in riuging up a sale.
They asked how long EQLife anticipated the's cnstomer would be there? They expected t6eir salon
customers to be thae 1'/: hours on the average and they expected the other customeis to be thec� 45
. miuutea to an hour. So the argument that they are not a more urtensive vse is faise: Whea you have a
service_occuparion hlce a spa or salon it is basically a one an one sitvation Hair is cut by one pcison she
is one customer. She has a massage by one person she is one customer. But fhere aze 400 of them
coming througlL That tells you tbat we need more parldng in order to be able to accommodatc ttus. We
have made tfiis calculation based on wfiat they have told us. That they are creating a new space in the
basement I,238 square feet of spa and we cantend that is not a legal application of the code or tfie rule of
S. We find it very frushating to I�ave to come and defend this, We aze asldng yau to simp(y uphold what
- the rules aze, deny this and s�tppprt otu� appeal.
Aearing no further testimony, Ms_ Madda�c closed the public portion of the m�ting.
Mr. Galtes moved to deny the appeal and uphold the fmdings of the Zoning Adm�ishator and resolution
based an findings 1 thcough 3. The motion failed bequse it did aot receive a second.
_ Mr. Ga12es stated that he spends as much time at Grand and Victoria as anyone who probably does not
woikthere. He goes down there fos a piece of cake and five dollar cups of coffee, beecs atB�ly's. He
stated that he pulis into that pazlong xamp every time he gces theie, and a ca�on coutd he shot ttrcough
there every time he goes tfiere. He goes fhere in tfie maming for meetings, he goes there � the aftemoon
' far lunch, he goes ffiere in the evening for d"mner withh'rs wife. 'fhe P��S �P ��PtY- He imagines
tbat when someoae goes down to the EQLife apa to get a mb dovmwith eucaiyptus, eat agcanolabaz and
. listen to Ysmii, 6�at they are toolong for something special and they are going to wantto pult into tfie
P�BT�P. '� �bucks is not going W be a dcterrent &om fl�at, this is that aort of use where some
one is not going to be driving around tfieneighborhood fo park fourbiocks away so ttuy can go over and
geta iub dowa Buy somepharmaceu6cals or a CD or go W a weight training'class. He tHinka t�at the
application of.tficnile af 5 atthough it maybe a perception ofbeing aback door deai ofwedgnmg fl�is
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F�7e #45-12819E3
Mumtes Augvst 1, 2005
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tbing in. He thiaks it is ctear in intecpretatian ofthe cade, tfiaf aithoug6 itt�as the appcarance ofbeing a
back door job he tfiinks it is mappropriate to uphoid the appeat and deny the cule of 5 because he tfiinks
fl�e code is clear.
Ms. Bogen moved to nphold 6ie appeal f� several reasons. Ont reason is that shebelieves the resolution
adopted byt$e City Coimcl in 2dd0 stated ffiattfie devetopment at 860 C3randAvenne sbaIl consistof
hasement starage, street tevel reta�, and common azeas and two Ievels af shvchaedpaziaug ahove the
retwl. The word "sha1P' means, m ti�e legat business sfie is mvolved'm, "that is w�at it w�1 be,° sa she
does noLbelieve that any of these reta� spaces can exgansion into the basenient Birt if they aze gossEg to
expand 'mto the baseruent and it is going to be a health spa, she � they l�ave to go along mith sxtion
63207 and require parlffig for ffie azea o£tfia health spa has &o azea divided by 260 glus I spabe fot
eacfi employee, we do not know wHat the employee sQarx is but tLatby its seif is 8.22 and even i€you
subtract .4 it still munds up to g vvhich exceeds the rule of 5. There sltautd uot be azry expansion in Uie
basement storage. 7f it is expanding 4�an the paztdng has to be imder the zequirements for ahealth spa.
Ms. Bogen moved to approve t8e appeal and found that the Zoumg Admmisfrator did erted'm the
catcuiation of zequired Pari�g spaces for tfie spa convecsian of storege space, and tbat the resolvlion
atIowing the cons¢ucfion of the bmld'mg designated the basement as stoiage space aad flus should not be
c}�anged, based on Sndings 1 through 3. �
Mr. Razicy requested tbat Ms. Bogen repeat her reasoning. Ms. Bogen sfated that it is so different when
theY do not have to do the sac fmd"mgs. She shated her reasoniag is thatthe otiginal resolutian that
allowed this xetait and parldng at 860 Cmand Avenue said the bui]d'mg stea� consist ofbasemeat stocaSe,
retail and common azeas and two levels of parking alwve the reta�. So to her tbat mieans that the
basement is required to be, under the worfl s3�all, storage and shouldnotbe eapande$ mto try a business.
But ifit is going ta be expanded 'mto by a busmess it is a spa. Than the parking catcuIation t�as W be
done tmder section 63207 wtrich is 1 space for 260 square feet plus 1 space per emp;oyee which pufs it
way over S, So the xule of 5 is not allowed_
Mr_ Hardcuick stated that since we are deating with legal issues he thinks iE wouid be wise For the Board
to consait with our City Attnrney befoze tfiey come to a determination heca. Ms. Maddmc Stabed she
thinks that wonld be appropriate fiere and this woutd be on fhe iule of 5. Mr. Hazdwick stated Uus would
be on the two points that CommissionerBogen ra3sed and paLaps'you might l�e ta sak so�
cornments. Ms. Maddox sfated before she does that sfie is going to call oa CoamrissionerL'mdeaand
then Commissioner Bogen.
Ms. L'mden quesfloned Mr. Hardwickwhetheathere were atry sewsniics imolved withthe fad �at the
��PBP�ork mdic�Yes 860 GasndAveaue. Ibes 8b0 Grau@ Avenue as she said sLall, doea fhat
atso cova 87U Grand Aveaue; because thae are tzcbnicatiy twa addTessbs. Mr. Hardwicknpliedsi�at a
b��B ��� � 11mn onc address, what is of concem is thaY it Las one identi&cation mimber.
Ms. Bogen stated one more wmment about tht spa use, evca though id is onlp apo�tioa of $dait is Boing
to nse muchmore staff aad many�reparldnS spaces cvca £orsta� We arenot saying tbatthe en[ice
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EQLife is some 2,000 square feet on the mam tevel snd 2,138 spa partion should be calcuIated as spa,
but ti�e spa por€ioa, fhe 2,138, should be coimted at ti�at Ievei.
Mr. GaIles queslioned Mr. FIardwick whether it has ever lxzn the c;ase where the City has calculated the
pazking 11ce that? Has there eves been a case where you Isave gone into a site and calculated hased an the
differeat nses within the site? Mr. Hardwick replied yes fliere liave been severai cases tbroughout the
Ciiy, obviousIy any shoppmg center is malti-use and there'aze sevecal oflier birildings out on iJnive�sity
Avenue for msfance. There are multiple retail uses, servicc uses, office uses, all within a smgle buiIdiny
and if that building is greatec than ZQ000 square feet we calcutatc those uses at i per every 280 square
feeL The only excepfion to that is a resfaurant So tbat 1 for every 280 woutd cover a Ueauty saton
whic�h requires pazl�g at the iate of ! for 250 plus 1 per empIoyee. That is aIl caiculated into that figure,
it is all bux�t into that &gure of 1 per 280. That is cansistently the way this has been appIied to any
building in the Cify that is greater tban 20,000 square feet with multipte tenants in it
Ms. Bogen questioned when we figure out partdng is it not always munded up to the next space, Mr,
Aazdwick repfied that the code is very speeific shout that. It says those uses that result in a partdng
requirement .5 or less stiall be rounded down. That is why a smglo-family home tfiat requires 1S pazking
spaces needs W provide onty one space. Any lhing tbat resalts in a parking requuement of greater than
I.5 ti�an the number wi1l be rotmded up.
Ms. Maddox requested that tegal council give her 2ega1 opinion. Ms. Gun@erson asked what the question
is? Ms. Maddox quesfioned on the rule of 5 and also the spa verses muiti itse and the expansian? Ms.
Grmdexson shted tlrat iegarding the tute of 5 she does not see discrefion in the code about whether or not
this Board can authorize the use of ti�e rute of 5. So their azguments about whether or not Uvs is an
appropriate vse of the nile of 5, she does not see appropriateness as a consideration tt�at this Board can
enter. Wiih regard to how you want to calculate the use of the basement differeut than the use ugstairs as
a general matter it is best to be consistent City wide. 'Ttiis Boazd cau do what fhey wish, but consisteney
is ��o�tant City wide and she wouid rely on wbaY staff will tell you with regard to �aps the other -
tenantv in the buildffig and how they are being calcutated. Finally with regazd to the resolution, she
believes that is an ambiguity that can go either way. It says that tha retail pazking development skall
consist of basement storage, s�eet level retaiI and wmmon areas, and two levels of structured pazkmg,
She finds that to be ambagious because it daes not.say tLat it s6alt be excIusive2y basement sto:xge,
ezclusivety reheil on the snain level. Arguably under that phrase you could not have anything but �taii
on the main level, but she thinks if an office wanted to ga in there tBat would probabiy be allowed.
Ms. Bogen stated that aha did not state the rute of 5 the'way Ms. Gundersoa stated it. She came up with
a bigger number tt�an 5 so it does net apply. Certainly if the numbec was 5, the rule af 5 would have to
apply and we cannotvary &omthat, She just said tbat she came up with a higher nvmber than 5. Ms.
Gunderson stated than ifyou came up with a}righer niunberthan 5&�an (? &d not cateh lastwords.)
Ms• Maddax stafed fliere is a motion on the floor, Board members need to state why fliey are wting to
nphald (appmve) the appeal.
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Ms. Bogen votedto appcove the appealbecause she cameup withahighernwnbef so themte of 5 does
not apply. The rule of 5 oniy atiows this change in tfie b�asiness ifthe aumber oFspaces is 5.5 or less,
based on the numbeca she came up with the number was gceat� fl�an 8. Mr. Hardwick clarified based on
usiag ihe 1 for 260 calcutatiort ut stead qf the 1 for 28ti7 Ma. Bag�en rep2ied cornctplus spa empioyees
we do notlmowwhattfiatnumber is. Mr. Wilsonwfsdto apgrovebased onthalrigHer catculation. Ms.
Linden based"on her calcniations which are faz gmater 8�sn 8. Mr. Gmlles wted w against the approval.
Ms_ Morton wted to apjuove based on flre higher calcutation. Mr. Faricy wLed to approve based on the
higher calcutation. Ms. Maddoz voted m approvebased on the ingher catcula6on.
Ms. Morton seconded the motion, wluchpassed on a mll ca}I votc of 6-1(Gatles).
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Approvedby.
3ohn Fiardwick Gloria Bogen, Secretazy �
M-ADA�HOPmploycr
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�c�1�� Vtd�I�n��S �����aC31p��f
PRESENTATION TO
� THE SUMMIT HILL ASS(JCIATIDN
AUGUST 1 l, 2005
(Inclusive of August 25, 20D5
Amendments)
�
SUMIVIARY OF EQ-LTFE PROPOSAL TQ ADDRESS PARHING CONCERNS RATSED �
BY ADDITION OF BASEMENT SPACE AT 870 GRAND AVENUE
(As revised August 25, 2Q�5)
• EQ-Life wi11 ensure that its use of the basement space will not adversely impact pazking
on Grand Avenue.
o If desired, EQ-Life and the property owner offer to reconfigure the southeast
corner of the existing parl�ng ramp at 870 Grand Avenue to add five parking
spaces for use by EQ-Life employees. During peak shopping periods (e.g. the
holiday season), EQ-Life will ufitize valet pazking services.
o In any event, EQ-Life wilt ensure that a12 of its employees use off-street gazking
in the existing underutilized par2ang ramp or, during peak perio@s, at other off-
street locations.
• EQ-Life will commit to providing all customers with complitnentary parking in the
existing off-street ramp, regardless of tength of stay.
• EQ-Life will promote the availabiliYy of off-street ramp parking through prominenY
signage at store entry points and tiuough phone contact with customers.
• EQ-Life and the property owner will agree that the Rule of 5 will no longer be available
for use at 870 Grand Avenua by any eacisting or future tenant. �
• EQ-Life wiil commit to supporting SHA, GABA aud the efforts of other community
organizations to resolve parking and traffic issues.
• EQ-Life and the property owner will waive any and all appeals and claims with respect to
the matters resolved by this proposal.
• EQ-Life's agreement to the foregoing will be confingent on obtaining Ciry Council
approval of EQ-Life's use of ttte basemenY as originallq proposed.
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MP2 15216559.4
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EQ-LIFE PROPOSAL AT 870 GRAND AVENUE �
PARKING IMPACT ANALYSIS
Par[ting impact comparison of projected data for the EQ-Life Grand Avenue store plan to
historical data for Bound to Be Read:
EQ-LIFE BOUND TO &E
Grand Ave. READ
Average Daily
TransacEions 115� 350-375
Peak Daily 246 492
Transactions
Avg. Expected
CusYomer 329 -583-625
Traffic'
Eapected net decrease in traffic = as man as 296 ewer customers er d
Parking impact comparison based on actual data from EQ-Life Richfeld location:
EQ-LIFE BOUND TO BE
'chfeld READ
Average Daily
Transactions 140 350.375
5/04-5f0
Peak Daily 180 492
Transactions
Expected
Customer --400 �583-625
Traffic
Expected net decrease in tr�c = as many as 225 fewer customers ner dav
�
T EQ-Life Gcand Avenue location numbers based on actual transaction and customer txaffrc data from Richfield
location adjusted to reflect difference in retail sqvaze footage between two locations. Piecise multiplier was .82, the
ratio ofproposed EQ-Life Aoor space at 870 Grand Avenue (I5,754 sq. ft) to the EQ-Life floor space at the
Richfield location {19,223 sq R).
' Customer �affic numbecs based on a historic conversion rate of 0.35 for EQ-Life and a lustoric convetsioa rate of
0.60 for Bound m Be Read. �
' Tcansacaon data from EQ-Life gand opening Iauncfi.
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ATTORNEYS AT LAW
3ti � a. ' -. `-.
TOnn G. HaRT'1KaN ., ,+ ' l ,
6I2�349-8245
Au�ust 1, 2005
VIA E-MAIL AND HAND DELIVERY
Boazd of Zoning Appeals
350 Saint Peter Street
Saint Paul, Minnesota 55102
Re: BZA File No. OS-128190 — Summit Hill Associafion Appeal of June 22, 2005
LIEP Sfaff Determination of Parking Requirements at 870 Grand Avenue
Our File No.: 011082-2117
Dear Members of the Board of Zoning Appeais:
• On behalf of EQ-Life, we aze writing to address the above referenced appeal filed Juty 6, 2005
(the "Appeal"} by the Summit Hill Association (the "SHA") and related. conespondence
conceming EQ-Life's proposed use of e�sting space at 870 Grand Avenue. Specifically, the
SHA has appealed the determination by the Office of License, Inspections and Environmental
Protection (the "Zoning Administrator") that EQ-Life's proposed change in use of existing retail
space previously occupied by the Bound to Be Read bookstore (`BTBR") complies with the
applicable off-street pazking reqrrirements of the Saint Paul City Zoning Code (the "Zoning
Code"). As detailed below, the Appeal is procedurally defective and fails to establish any error
on the part of the Zoning Administrator in making its June 22 decision. Moreover, the entire
premise of the Appeal, that EQ-Life's proposed use will cause a net increase in pazking needs, is
incorrect. Accordingly, the Appeal must be denied.
I. FACTUAL BACKGROUND
By letters dated April 1 t and April 21, 2005, EQ-Life, through the properiy owner, requested
the Zoning Aduiinishator's apgroval of its proposed use of the 870 Grand Avenue retail space
previously occupied by BTBR As described by the Zoning Aduunistrator's June 22 decision,
that proposed use includes conversion of 2,138 square feet of Iower level storage area into spa
facilifies. These lower level facilifies would include approximately 950 square feet of customer
restroomldressing room facilities, with the remainder dedicated to smail spa treahnent rooms. In
light of the addition of lower level restroom facilities for customers, EQ-Life's proposed use atso
includes the conversion of e�sting main floor restrooms into shared resirooms for the use by
• other tenants' employees and service personnel serving the entire building. These shared
I Attached hereto as Eachibit A.
MP2152I5389.1 ,
A 2 G A N i A� H O 5 i 0 N� L 0 S A N G£ L E S M S N N E A Y 0 l I 5 N A P L E 5- S A i N 5 P A U t• W A 5 H i N G 2 0 N, p. C
Boazd of Zoning Appeals
August 1, 2005
Page 2
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restrooms wiIl be physically and aesthetically distinct from the rest of the EQ-Life space and will
serve tiie security aud customer e�cperience needs of all tenan'ts.
After weeks of discussions with and review by Zoning Adminishator staf� the Zoning
Adxninistratar issued its 7une 22 decision appmving EQ-Life's pmposed use. In particular, the
Zoning Administrator determined that the cfiange in use was pemutted under the existing Zoning
Code without the aeed for additional parking spaces. The Zoning Administrator also rejected
proposals for the use of additional lower level space based on the presence of additional stacked
pazldng spots and e�ra pazking spots on commonly owned property located across the street
from 870 Graud Avenue.
On July 6, 2005, the SHA filed its apgeat of the Zoning Administrator's June 22, Z005 decisioa
with the Boazd of Zoning Appeats (the "Board'�. The Appeal objects to the conversion of
e�sting main floor restroom space to shared tenant space and the applzcation of Section 63.204.a
of the Zoning Code to EQ-Life's pmposed use. Tfie Appeal does not provide any legal reasons
or analysis why or how the Zoning Code was misagpfied. In addition, on Juty 28, 2oQS, we
understand that the SHA submitted additional information regazding the initial site approval for ,
870 Grand Avettue back in 2000. Tlus submission does not contain any eaplanation as to how
this information is relevant to the $oard's consideration of Uus case.
Qn 7uly 26, 2005, the Grand Avenue Business Association ("GABA") filed a letter with the •
Zoning Administrator stating thaY EQ-Life should not receive a`�ariance" under the "Rule of 5"
in light of eJCisting pazldng issues along Grand Avenue. We understand that similaz objeetions
from neighborhood members may aLso have been submitted to tha Zoning Adnunistrator. These
were generated by SHA and GABA communications that iaaccurately depict the nature af EQ-
Life's use of the 870 Grand Avenue space.
II. TFIE SHA APPEAL MUST BE DEIVIED AS A MATTER OF LAW.
A. The SHA Appeai Was Not Timely �Yled.
Section 61.701 of the Zoning Code provides tfiat administrarive appeals from a graut or denial of
approval by the Zoning Administrator must be filed with the Planning Commission within ten
(10) days after the decision appealed from has been served upon the owner of the properiy. Ia
this case, the June 22, 2005 decision by the Zoning Adnunistrator was setved on the building
owner on June 23, 2005. The SHA Appeal was not filed until July 6, 2005, tUirteen days after
service upon the building owner, and was filed with the Boazd, not the Planning Commission
Accordingly, the Appeal is unti�nely and must be dismissed
B. The S$A Fails to Establish Anty Error in the Jaly 22 Decision.
The grounds for appeal of the Zoniag Administrator's 7nne 22 decision ate timited to
determin;ng whether there was any error in the application of the Zoning Code to EQ-Life's
.
MP2 15215389.1
Boazd of Zoning Appeals
August 1, 2005
• Page 3
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proposed use. In making this det�in;ng, flie Zoning Code must be strictiy consirued
according to its plain language and any ambiguity must be resolved in favor of the property
owner. Applying these standards, the Appeal fai3s to establish any lawful basis for challenging
the 7une 22 decision.
The Zoning Administrator's decision was based on a straightforwazd appficarion of the clear and
unambiguous language of the Zoning Code. The Appeal raises only hvo vague bases for
challenging that determination. First, the Appeal challenges the Zouing Administrator's
determination that the converted shared restroom space on the main level is treated as storage
space under the Zoning Code for purposes of calculating off-slreet pazking space reqvirements.
However, the Appeal does not and cannot point to any support in tYte Zoning Code for claiming
that ftus determinalion was in error. Section 63.203 expressly provides that "[a}ny shared space,
such as... public or shared restrooms ... shall be considered, for purposes of determining
pazldng requirements, the same as storage are2s." The Appeal nonetheless claims that this
Zoning Code requirement can and should be ignored because the prior tenant did not make these
restrooms auailable for shazed use and the ptupose of the conversion is otherwise a"fallacy."
However, nothing in the Zoning Code provides that Section 63.203 may be disregazded based on
prior use or the tenant's purposes in converting existing space to a different use. To the contrary,
the Zoning Code expressly recognizes and pezmits changes in use to accommodate different
needs of new property owners and tenants.
S Moreover, contrary to the SHA's contenfions, the deternunation on the park of both EQ-Life and
the pmperty owner to convert the existing main floor restrooms into shared space is consistent
with the original pians of the property owner and the valid business concerns of EQ-Life. As
originally designed, the main floor BTBR restrooms were intended to be shared restrooms for the
use of all tenants. This provision of shared restroom space is consistent with common business
practice in such multi-tenant buildings and makes the space more attractive to prospective
tenants. Against the property owner's advice, BTBR requested that these restrooms be dedicated
to its exclusive use, requiring other tenants to construct their own lunited restroom facilities.
The conversion of the existing BTBR restrooms back into shared use restrooms retums these
facilities to their original intended use consistent with staxidard business practice and will enable
existing and future tenants to cease providing separate restroom faciliries. '
EQ-Life's business model and needs also compel the conversion of the existing BTBR restrooms
back into shazed restroom space. EQ-Life is a health and wellness store concept that provides,
among other things, spa breahnents and other services reqniriug enhanced customer restroom
space. EQ-Life's restrooms must therefore be an integrated and environmentally consistent part
of the customer experience. EQ-Life is construcfing new, ezcpanded restroom facilifles in the
` See, e.g., PTZ, LLC v. Chisago County, 656 N.W2d 567, 571 (Minn. App. 2003) (where a zoning ordinance
specifies the standazds for pemutted use, local discretion is limited to detemuning whether those standazds ue met};
Chanh¢ssen Estates Residenu Associafron v. City of Chanhrusen, 342 N.W.2d 335, 340 (Minn. 1984) (same); Minn.
Stat. § 462357, subd. 6(authorizing adminisirative appeals of pemutting decisions oniy where it is alleged there is
an error by the zoning admiuistrator in the enforcement of the zoning code).
• 3 See, e.g., SLS P'ship x City ofApple Yalley, 511 N. W.2d 738, 741 (Iviinn. 1994); Frank's Nursery Sa1es, Inc. v.
City of Roseville, 295 N.W.2d 604, 608 — 609 (Minn. 1980}.
° See Zoning Code, § 63.205.
MP2 15215389.1
Boazd of Zoning Appeats
August 1, 2005
Page 4
�J _ •
lower level consistent with these needs. Customer use of the e�sting main floor resfrooms
would be entirely inconsistent with the store e�perience and customer needs. Accordingly, EQ-
Life neither wants nor needs tiie existing resirooms to be available for its customers and is
therefore eonverting ttiem into shared restroom facilities for use by ai1 tenants' empioyees and
service persoanel. This use wiIl serve the aesthefic and safety needs of the teuants by pmviding
a secured and separate restroom facility for non-customers.
In addition to its vagtie and incorrect assertion that the conversion of maiu IIoor restroom space
is a"fallacy," the Appeal also claims thaf the restroom space being converted was never
considered `Yetail space" for purposes of the prior approved use. In one sense, the Appeai is
correct in that, as e�lained above, the building owner originally intended for these restrooms to
be shared resfroom facilities and not counted as pazt of the BTBR tenant space. This fact only
further emphasizes why, now that tfiese reshnoms have been converted back into shared
facilities, this space cannoY be considered part of tke EQ-Life retail space for purposes o€
determinittg parking space requirements. However, the Appeal also appears to imply that the
e�cisting main floor restroom space did not contribute significantly to the parking needs of the
buildittg and therefore its conversion should not be allowed as an offset against the parlffng
required by EQ-Life's conversion of lower level space. In this regard, the Appeal is wholly
iaconsistent. I� as tfie SFIA azgues, bathroom space should be discounted for putposes of
determin;.,g parking requirements, then the customer restroom facitities being constructed by
EQ-Life in the converted lower level should be similazly disregarded. Yet the consTruction of �
those additionat restrooms is a primary basis for the SHA's objection that parlflng requirements
aze being exceeded. The SHA offers no reason why the prior tenants' restroom space did not
create pazking concems, yet tfie EQ-LiFe restroom space sugposedly increases pazking needs to
an unacceptable extent.
Tfie Appeat also claims that Section 63.204.a of the Zoning Code, also l�own as the "Rule of 5",
"is being used incosectty." The Appeai does not specify any error on fhe pazt of the Zoning
Administrator to support tlus claim, other thau the already addressed objection to the Zoning
Admiuistrator's application of Section 63.203 to the converted restroom space on the main floor.
In fact, there is no error. Section 63.204 states that any change in elcisting uses that requires the
addition of 5 or fewer parking spaces is entitled to a one-time cumulative exemption from
providing addifional pazking spaces. There is no question that EQ-Life has proposed a change in
use to lower level and mant floor space; indeed, this change is the entire predicate for the SHA's
appeal. Nor can the SHA poiut Yo any error in the Zoning Administrator's calculation of the
required parking spaces or any other basis in the Zoning Code for claimiug tl�aY the Rule of 5
should not apply to EQ-Life.
In addition to the vague asserkions of ertor addressed above, the SHA has also raised issues
regarding the generat parking situation on Grand Avenue and the overall "histor}�' surrounding
the development at 870 Grand Avenue. These considerarions are entirely outside the scope of
the Boazd's consideraiion in fhis pmceeding. For purposes of ttus Appeal, the Boazd may only
5 See n. 1 s I3. SEC QISO COISlIOT CO
❑P rporation v. City ofSaint Paul, 922 F.2d 215, 22t (8th Cir. 1940) (a wnin
decision a inc the applicant is unlawful if the applicant meets the standazds specified by the applicable zoning •
ordinance). The historical doc�ents provided by the SHA include information descnbing the proposed use uf the
property as it e�sted at the rime, iucluding a Saint Paul Resol¢tion genexaily descnbing the original proposed use of
MP2 15215389.1
Boazd of Zoning Appeals
August 1, 2005
• Page 5
L
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deteanine if the Zoning Code, as it cunently exists, has been properly applied in tlus case. It
has. Accordingly, the SHA Appeal must be denied.
Nonetheless, we note that underlying a11 the arguments of the parties regarding the traffic
situafion on Grand Avenue is the inconect assumption that EQ-Life will somehow exacerbate
ffie pazking situation at 870 Cnaud Avenue. In actuality, there is no evidence indicating that EQ-
Life will inerease pazking or traffic problems at 870 Grand Avenue; in fact, EQ-Life expects fo
have a posirive impact on the parking situation.
The SHA Appeal assumes that EQ-Life will increase current parking needs in light of what it
ciaims are EQ-Life esrimates that Saturday traffic will draw 400 customers to the 870 Grand
Avenue location. This "400 customer" number referenced in the Appeal is taken out of context
and applied incorrectly. The A00 customer number was offered by EQ-Life in response to an
SHA inquiry as an estunate of current maximum traffic at EQ-Life's Richfield locarion. These
Richfield store tra.ffic numbers reflect the peak time traffic at a lazger store in an entirely
different azea and were never offered as {and are not) an accurate indicator of what the auerage
EQ-Life traffic will be at the Grand Avenue location. Indeed, the Richfield store is
approxunately 2Q,000 square feet in size, or approximately 20% larger than the proposed Grand
Avenue location. If, as the SHA and the Zoning Code presume, increased square footage has a
direct relationship to increased customer traffic and pazidug needs, then the proposed EQ-Life
location at 870 Grand Avenue can be expected to have 20% less customer traffic than the
� Richfield location (i.e., 320 customers). Thus, the very data on wtuch the SHA and others are
basing their azguments is flawed.
More importantly, neither the SHA nor any other party opposing the Zoning Adminisirator's
decision have considered whether EQ-Life's estimates of customer traffic repre$ent an increase
over the customer traffic of the prior tenant. In fact, an exauunation of relevant data regazding
the prior tenanYs business reveals that EQ-Life's customer traffic wili be significantly less than
that of BTBR Based on data regazding average daily transactions obtained from the prior
tenant, EQ-Life estimates that BTBR averaged over 480 customers per day. Thus, contrary to
the unsupported assumpfions of the SHA appeal, even the inflated estimate of 400 EQ-Life
customers on a peak day is less than the average daily traffic generated by the prior tenant.
That EQ-Life will likely have less pazking needs than BTBR is also consistent with the
differences between the BTBR and EQ-Life businesses. The nature of BTBR products and their
low price per item makes it an economic necessity that BTBR would generate greater traffic and
pazking needs than EQ-Life's lower volume, appoinhnent-based business. Many of the services
and facilities offered by EQ-Life require vastty more per customer space than the sale of books
and therefore preclude EQ-Life from serving a greater number of customers than the prior retail
book store tenant. The SHA's assumptions that EQ-Life wilI increase current parking needs are
contrary to these economic realities.
ffie 810 Crtand Avemie property. I3othing in these descriptions indicates tbat Uris use would not or could not cBange
• as permitted by the Zoning Code. Nor is there anything in this information that indicates that the pcoperty owne:
somehow waived its right to change uses to those otherwise pernutted under the Zoning Code or tl�at the City is
othernise estopped from granting the EQ-Life applicafion.
MP2 15215389.1
Boazd of Zoning Appeals
August 1, 2005
Page 6
��-���
EQ-Life's ability to positively impact the par�ng issues at the 870 Grand Avenue location is
aLso demonstrated by its ongoing willingness and incentive to work with the community and
locat business owners to alleviate any general pazlffng or traffic issues. EQ-Life has already
proposed a number of solutions to the SHA that it believes would 'unpmve the local pazking
situation. EQ-Life rem� committed to working with the SHA and other community
organizations toward implementing these and other solutions that will help alleviate the current
pazlang space deficit.
C. TLe Additional Neighborhood Opposition by fhe GABA and Other Parties
Cannot Provide a Basis for Granting SHA's Appeal.
In addition to the SHA submissions, the GABA and other residents and businesses in the Grand
Avenue neighborhood have voiced opposition to the Zoning Administrator's decision Like the
SHA Appeal, ttris neighborhood opposition faiis to articulate or support any error on the part of
the Zoning Administrator in applying fhe Zoning Code. As a matter of law, such neighborhood
opposition cannot be tfie basis for denying a use of pmperty otherwise permitted under a zoning
code. Tlus is especialty true in this case, where the concerns of the GABA and other patties
have been base@ inaccurate information regarding the application and EQ-Life's pazldng needs.
Cerfain neighborhood opposition is being generated by fiterature distributed by the SHA. That
literature claims that EQ-Life eacgects "4Q0 customers on an average Saturday." As eaplained
above, that number is inaccurafe attd misleading. The 400 cvstomer figure is from a larger store
and is not a reliable predictor of ach2al Saturday traffic at the EQ-Life space. Tke SHA aLso
omits the fact that even this inflated traffic number is likely significantly less than the traffic
generated by the prior tenant.
Opposition by the Grand Avenue Business Association was pursuanY to similarly misleading
infomtafion. The GABA Board of Directars solicited opinions from its members through an e-
mail depicting EQ-Life's use as reqairing a variance from the Zoning Code, when in fact EQ-
Life has gone to great length to make sure that its use is consistent with the existing Zoning
Code. Contrary to the GABA's assumptions, EQ-Life is only asl�ng that the Zoning Code be
appfied to it in tlie same manner as every other Saint Pau1 business.
Aside &om being based on factual inaccuracies, the opposition generated by the SHA and
GABA essentially asks that the Board ignore the e�cisting Zoning Code, especially the Rule of 5,
and apply different rutes to EQ-Life. Minnesota law has long forbid such discriminatory and
arbitrary application of zoning codes. To the exteat SIiA and GABA seek a change in e�cisting
law to address the parking situation on Graud Avenue, there aze appropriate velucles for sucfl
° See EQ-Life garking resotufion proposais submitted at S73A public heazing on June 30, 2005 (affacfied hereto as
Eadubit B).
' See Condor Corporatinn v. Ci£y of Saint Paul, 912 F.Zd 215 at 223, n.15 (imder Mamesota law, neighborhood
opposition is insufficient to deny a permit); Chanhassen $stares Residents Association v. City of Chanhassen, 342
N.W.2d at 340 (non-specific neighborhood opposition and testimony that a pemutted use poses potentiat traffic
�roblems deemed insuff cient to justify denial of use permit).
See SAA Comment Solicihtion attached hereto as Exhibit C.
9 See GABA Comment Solicitation attached fiereto as Exlubit D.
10 See, zg., Northwestern College v City of Arden Hi71s, 282 N.W.2d 865, 870 (Mmn. 1979) ("[a] waing
ordinance must operate unifoimly on those similazly situated.°�.
�
s
�
MP2 15215389.1
Board of Zoning Appeals
August 1, 2005
. Page 7
. � ° -
�.. - ' • 'S Fr
action and EQ-Life would welcome the opportunity to participate in those efforts. However,
arguments that the law should be changed aze not appropriate considerations for the Boazd and
may not form the basis for denying EQ-Life's application.
For the foregoing reasons, the SHA's Appeai of the Zoning Administrator's 7une 22 decision
should be denied.
Sincerely,
cc: City Attorney
� Suintnit Hill Association
Grand Avenue Business Associarion
Council Member David Thune
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Incentive arking in ram�
� 10Q9b or cusfiomers validated 1 hour — free parking
• tn two employees use the iandem parking each moming — attendants hold tfte
&eys
� Ait home of€ice empfoyees park in ramp — expenses paid by— eqGfe
• Hotiday promotions
• 5 free parking spaces for our employees
• All spa/saEon customers—free parking
`� Common Area Restroom
. Employees — eqlife and Pattery Bam
• Detivery Personnel
• Maintenance personne!
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•
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JvL.27'2605 1d:5� 651-699-6501
Summff Htli Neighbors
VILLAGEA
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#oo7a �:ooi�oai -
The Summ� Htil Assoclatlon (SHAj D1ahlct 16 Planning Counc!!, on the
recommendaflon of 1is Zontny and land tlse Commlttee. after a
public hearing, ha� vQfied to appeat the d�cltton of Ctty af SF Raui
stcft to ottaw EQ tite� to conshuct addffionat spQ spcce in the
basement sforaye arec of tite former 9ound Ta Be Raad Bookstot'e
w�thout fhe needad add�io�ai par{dng. Th�re Is no furtMe� :pc�c�
avallable in fhe pariciny ramp.
Parkln� studtes show o shorifall af 981 spaces horn M!lton to Oalda�d
stre�h. Th1s pa�icular lntersectlon Is ane ot the wcrat tn the Summit NIn
area far fratRc and porkfnq. EQ tife, a divlstort of 8est suy, ts
expecfing 400 custome�s on an ava�age Saturday.
Plan to attend this heqrinp befare the Board of Zonin� Appe��l� ot
3 pm, Mo�doy, August 1, 20Q51n Room 330S
(�ear City Councll Chambsrs) Cffy Hall,
You rr�ay came cnd tettthr 1� person, Or you may Gaii, woi#e or srnat!
your concarns to fhe Aoard ot Zaning Appeats bafore noon Monday
August 1� vta:
Mr. John Hardwick,
Cornmerce Blds., 2^d floor
8 Easi 4� Stree#, Si, Foul, MN 55�0�
John.hardwlck�cl.stpaul.mn.us
651-26�-�082
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~ � Page 1 of 2 .
From: lody Stanley [maitto:jody@grandave.com}
Sent Friday, Ju�y 22, 2005 1:50 PM
To: jody�a 4randave_com
Subject: SPEAK UP!
S ea ak u�
There is a new business coming on fhe avenue who wilf need more Qarking spaces due to the
use of fhe fheir occupancies. Accordi�g to city law, parking spaces are determined by the
square footage of use. This new business will be exceeding the amounY of parking spaces
availabte in their area by tuming their tower bathrooms into public use. This wi11 allow them to
use the rufe of five. �
Ti7e rule of five states:
Sec. 63_204. C6ange in use within a struature,
When any uses which exist within a structure change to a new use, the following rules shall
aPP�Y=
(a) Change in use requiring addifional parking. E�tcepf when commerciat uses are established
in the BC district or when parking is specifically requirecf for a conditiarial use permit, when any
exisfing uses change to new uses which require six (6) or more additional off-street parking
spaces than the existing uses, the six (6) or more additional spaces shall be provided along
with the spaces already provided_ New uses which require five (5) or fewer spaces than the
7/25/2005
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Page 2 of 2
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existing uses shall be exempt from providing additional spaces. However, this exemption
provision shall be calculated cumulatively starting from adop5on of this provision on January 3,
1994, so that no property receives a total exemption of more than five (5) spaces.
• (Rule of Five Parking Variance: (f a new commerciai use requires five or fewer additional
parking spaces, the business does not have to provide additional off-street parking.)
The GABA Board of Directors would (ike to know what your thoughts are on this.
Please let us know if you:
_ Yes, we feel this business should be able to use tfie rufe of five.
_ No, we feel this business should not be awarded the rule of five.
1f you have further comments you may CC me on a letter, but you must put it in writing and
send it to the Zoning Administration, Office of LIEP, 8 4th St. E Ste. 200, St. Paut MN 55i01-
1024_ Letters must be received prior to Augusf 1, 2005 to be heard. A hearing wiil be heid on
August 1 st.
Thank you,
Amanda Schultz, CFM
Executive Director
• GABA/Grand Old Day
867 Grand Ave.
St. Paul MN 55105
651-699-0029(p)
651-699-7775 (f}
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TO:
FROM:
I2E:
DATE:
MEMORANDUM
The St Paul City Council
EQ-Life
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Appeal of Board of Zoning Appeals Resolution dated August 1, 2005
September 2, 2005
EQ-Life respectfully submits the following memorandum in support of its appeal to the
City Council of the August 1, 2045 Bqazd of Zoning Appeals Resolution in File No. OS-128190
(the "Resolution"). The Resolution, contrary to the recommendation of the City Zoning
Administrafion staff (the "Zoning Administrato�') and the concems of the City Attorney's office,
granted an appeal denying EQ-Life's proposed use of existing space at 870 Grand Avenue. Tn
adopting the Resolution, the Board of Zoning Appeals (`BZA") made numerous procedural,
factual, and legai errors. Most notably, the Resolution ignores the plain language of the Saint
Paul Zoning Code (the "Zoning Code") and departs from past City practice in a manner that is
unlawful and will have a substanfial adverse impact on businesses throughout the City of Saint
Paul. For these and other reasons, the Resolution must be overlurned.
•
�
MP3 201489772
EXECU'I'IVE SUMMARY � �' � '� `� � �
EQ-Life's proposed use must be approved by operation of state law.
Section 15.99 0£ the Miunesota Statutes requires that the City take final action on a
zoning request within 60 days. See Tab 1. A recent court case has clarified that such final action
must include resolution of all appeals of a zoning request. See Tab 2. By any measure, more
than 60 days have passed since EQ-Life's zoning request; in fact, the appeal is still ongoing,
even though the ini4al request was made in April 2pOS. See Tab 3. Accordingly, EQ-Life's
request must be deemed approved by operation of state statute.
The Resolution is unlawful and produces absnrd results.
The Resolution seriously misinterprets the Zoning Code in two respects:
First, tha BZA held that commercial space within a multi-use retail center must be
separated and independently designated as "health spa" for pazking purposes. This holding is
contrary to the Zoning Code's express parking requirements for multi-use retail centers and the
City's past practice with respect to such buildings. See City Zoning Administrator's Staff
Report, Tab 4. If allowed to stand, this precedent would require that the parking requirements
for every multi-use retail center in the City be calculated in accardance with the varyiug and
ever-changing uses of the tenant spaces. Such a result is wholly impractical and commercially
infeasible.
Second, the Resolution provides that an otherwise lawful use of a properiy may be
prohibited if it conflicts with the original site plan. As an initial matter, this holding was ,
unlawfully included in the Resolution after the fact, as it was not among the bases stated by the
BZA for its decision at the hearing. See Official BZA Hearing Minutes, Tab 5. More
importantly, this holding is contrary to the Zoning Code and the City's past practice. The Zoning
Code clearly pernuts building owners to change the use of their properties _from that in the
original site plan; the City processes and approves such changes in use on a regular basis. To
now hold that building owners or tenants are permanently "locked-in" to the uses set forth in a
site plan approval is completely arbihary, unreasonable, and unlawfully deprives existing
properly owners of substantial property value.
The Resolution is procedurally defective.
The $ZA decision is also the pmduct of a procedurally defecrive hearing. The BZA
ignored facts in the record and limited discussion. Moreover, the BZA c�early based its decision
on evidence of general traffic and parlang concerns along Grand Avenue, which it admitted into
the record. The BZA has no authority to consider or address general parking concems or
otherwise modify City policy in that regazd; such decisions are the exclusive province of the City
Council's legislative authority.
EQ-Life has demonstrated that it wilI have a positive impact on parking and traffiic.
Even if one were to ignoze the law applicable to this dispute, EQ-Life has demonstrated
that, as a pracrical matter, its use of the space at 870 Grand Avenue will nnprove existing
parking and traffic issuas. All relevant data shows that EQ-Life's store will generate less traffic
than the previous tenant. 1VIoreover, EQ-Life has provided a proposed use and compromise •
solurion that will actuaily improve the pazking situation at the building. See Tab 6.
MP3 20148977.2 2
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EQ-Life in Brfef
EQ-Life is a Minnesota-based health and wellness concept store. Its mission is "[t]o
provide a place where different approaches to health and wellness work together—where people
can find solutions that meet their unique needs through friendly, Irnowledgeable, personalized
service." The EQ-Life concept combines wellness and technology, and includes the products or
services of Park Nicollet Health Services and Prairie Stone Phannacy. The facility will also
include a small coffee shop. In a single visit to EQ-Life, customers can fill a prescriprion, attend
a Yoga or Pilates class, consult with in-house nurses and dietitians, research health and wellness
topics at the in-house resource center, and shop the latest heart monitors, MP3 players, exercise
equipment, or other health-related devices.
EQ-Life's Proposal
By letters dated April 11 and April 21, 2005, EQ-Life, through the property owner,
requested the approval by the Office of License, Inspections and Environmental Protection
("LIEP" or the "Zoning Administrator") of its proposed use of the 870 Grand Avenue retail
space previously occupied by the `Bound to Be Reacj" Bookstore (`BTBR")? As described by
the Zoning Administrator's June 22 approval, that proposed use includes conversion of 2,138
square feet of lower level storage area into spa facilities. These lower level facilities would
• include approximately 950 square feet of customer restroom/dressing room facilities, with the
remainder dedicated to small spa/salon treatment rooms. In light of the addition of lower level
restroom facilities far customers, EQ-Life's proposed use also includes the conversion of
existing main floor restrooms into shared restrooms for the use by other tenants' employees and
service personnel serving the entire building. These shared restrooms will be physically and
aesthetically distinct from the rest of the EQ-Life space and will serve the security and customer
experience needs of all tenants.
The Decision by the Zoning Adrninistrator
After weeks of discussions with and review by Zoning Administrator staff, the Zoning
Administrator issued a 7une 22, 2005 decision approving EQ-Life's proposed use. In particular,
the Zoning Administrator determined that the change in use was permitted under the existing
Zoning Code without the need foX additional parking spaces. Most notably, the Zoning
Administrator properly determined, consistent with the express terms of the Zoning Code and
longstanding City practice, that EQ-Life's proposed use would be considered "commercial space
in a multi-use retail center," a designation under the Zoning Code that requires one off-street
parking spot per 280 square feet of space. Under that forrnulation (combined with the necessary
I See www.eq-life.com.
� Z See April 11, 2005 and April 25, 2005 letters requesting LIEP action on EQ-Life's proposed
use, attached hereto at Tab 3.
MP3 201484772 3
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subtractions far the conversion of first floor space and prior parldng allocations), the EQ-F;ife �
plan would yield a net parking increase of 513 off-slreet parking spaces under EQ-Life's
proposed use. The Zoning Administrator then properTy invoked Secrion 63.204(a) of the Zoning
Code (the so-called "Rule of Five") to determiue that EQ-Life need not provide any new off-
street parking spaces. In other words, the "Ru1e of Five" spares EQ-Life from the requirement
that it provide any new additional pazking spaces.
The BZA Appeal
The very last substantive pazagraph of the Zoning Administrator's June 22, 2005 decision
cautioned that "[t]his decision can be appealed to the Board of Zoning Appeals by any interested
part�' and that "[a]ppeals must be ftled within 10 days of the date of this letter." On July 6,
2005 (fourteen days later), the Snmmit Hill Association ("SHA") filed its appeal with the BZA.
The SHA appeal objected to the convarsion of existing main floor reslroom space to
shared tenant space and the applicarion of Section 63.204.a of the Zoning Code to EQ-Life's
proposed use. The Appeal did not provide any legal reasons or analysis about why or how the
Zoning Administrator misappfied the Zoning Code.
On July 28, 2005, the SHA submitted additional information regarding the initial site
approval for 870 Grand Avenue back in 2000. The supplemental submission did not contain any
explanarion as to how this information was relevant to the BZA's consideration of this case. The
SHA did fixate upon its belief that EQ-Life would draw up to 400 customers per day to the •
neighborhood. The SHA similarly characterized as "a fallac�' EQ-Life's provision of common
restroom space for use by other tenants.
EQ-Life also submitted materials to the BZA. The EQ-Life materials consisted primarily
of a memoranduxn and e�chibits conveying tl�e following points:
3 The "Rule of Five" provides as follows:
When any existing uses change to new uses which require six (6)
or mare additional off-street parldng spaces than the exisring uses,
the siY (6) or more addirional spaces shall be provided along with
the spaces already provided. New uses which require fiae (5) or
fewer spaces than fhe exisfing uses shall be exempt from providing
additional spaces. However, this exemption provision shall be
calculated cumulatively starting from adoption of this provision on
January 3, 1994, so that no properCy receives a total exemption of
more than five (5) spaces.
§63.204(a). All parties agree that the building is eligible for application of the "Rule of Five" •
because the building has never previously received that exemption.
MP3 201489772 t}
• 1. A fair and proper reading of the plain text of the Zoning Code compels denial of
the appeal. Any other result would be a blatant disregard for the Zoning Code.
2. The BZA does not have discretion to consider general parking and traffic
concerns in determining whether the Zoning Code has been properly applied.
3. EQ-Life will actually generate less traffic per day than the prior bookstore tenant.
EQ-Life submitted statistics provided by the BTBR owners, which confirmed that BTBR
averaged approxunately 480 paying customers per day in its store space, and many more
customers who did not purchase anything at the store. Moreover, EQ-Life is an appointment-
based business. Unlike a bookstore, EQ-Life wiil not generate a high volume of browsers or
casual shoppers 4
In addition to these submissions by the parties, the SHA and certain neighborhood
organizations also solicited neighborhood opposition based on misinformation regarding EQ-
Life's proposed use of the space at 870 Grand Avenue. In particular, nearly all of the opposition
was based on the incorrect assumption that EQ-Life was seeking a"variance", when, in fact, EQ-
Life had simply asked for approval of its proposed use in accordance with the same rules
applicable to all other Grand Avenue and City businesses. Opposition was also generated
ttirough the inaccurate and unfounded assumption that EQ-Life would substantially increase the
traffic requirements beyond that of the prior tenant 6
� The Zoning Administrator's Staff Report
On August 1, 2005, the BZA held a hearing on the appeal of the Zoning Administrator's
decision. In advance of the hearing, the BZA staff prepared a"Board of Zoning Appeais Staff
Report". The conclusion of the staff report mixed sympathy for neighborhood concerns with the
legal realities of the Zoning Code requirements:
Staff agrees with the Summit Hill Association that there are serious
parking and traffic issues on Grand Avenue. However, the zoning
code allows parking to be deterrnined differently for restrooms that
are shared as opposed to restrooms that are part of a single tenanYs
space. The zoning code also allows an exemption for changes of
use when the difference between the old use and the new use is
five or fewer spaces. If a proposal meets the code requirements,
4 See EQ-Life BZA Hearing Submission, attached hereto at Tab 7.
5 Id. at p. 6-7, Exhibits C& D.
� b Id.
MP3 201489772
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staff has no discretion to deny a permit even if there are serious •
parking and iraffic issues �
Accardingly, the Zoning Administrator's Staff Report recommended denial of the SHA appeal.
At the BZA hearing, the Zoning Admivistrator fiu�ther clarified that EQ-Life was not
seeking a"variance." He also noted that the Zoning Aduiiuistrator's recommendation in this
case was based on long-standing City practice with respect to pazking caJculations and that the
SHA appeal demanded a changa in the way the City had treated other buildings throughout the
City. He therefore reiterated the staff recommendation that the SHA appeal be denied.
The BZA Hearing
At the hearing, SHA members and a series of Smiunit Hill neighbors opened testimony
with Yheir support of the SHA appeal. This testimony essentially reiterated the points made by
the SHA in its written submissions and again included general concerns regarding traffic and
pazking at Grand Avenue, past battles with the local developer that owned the building, and
arguments that EQ-Life competed with toq many existing businesses on Grand Avenue.
EQ-Life was briefly permitted to respond to t3ie appeal. A BZA member immediately
admonished EQ-Life's introductory speaker to change the substance of his remarks. Thereafter,
the introductory speaker disclosed information from the BTBR owners that the bookstore had up
to 490 daily transactions. I3e then clarified that the EQ-Life locarion in Richfield handled �
approxinnately 150 transacfions per day. The attorney for EQ-Life then noted that the SIIA's
appeal was founded upon legal2y irrelevant arguments. He explained, as the Zoning
Adininistrator and the BZA Sta£f had done before him, that the Zoning Code calls explicitly for a
"storage" classification for shazed restroom space. Whether or not other tenants actually use the
shared restroom space is irrelevant, What matters under the Zoning Code is whether other
tenants have access to the resirooms through a shared hallway. Accordingly, there is no legally
iegitimate reason to deny "Rule of Five" status for the EQ-Life proposal. An employee of BTBR
then testified that she could only remember a single time where the adjacent parking ramp was
full. Other than that one tune, the parking ramp always had plenty of open spaces.
After questions and coxnments by various BZA members, the SHA representafives were
permitted a second round of comments and testimony. EQ-Life was not pemutted any such
rebuttal. Thereafter, the public portion of the meeting was closed.
7 See City Zoning Administrator's Staff Report, attached hereto at Tab 4, at p. 4.
8 See Official BZA Hearing Minutes, attached hereto at Tab 5, at p.l, 9.
9 Id. at p. 5.
�
MP3 2014897�2 (
• The BZA Deliberation and Result � � � � � �
Tellingly, the BZA deliberafions opened with questions about the propriety of separately
designating EQ-Li£e's space as a"spa" for Zoning Code purposes, even though the space is
within a multi-use commercial building. Staff explained that the consistent city practice was to
zone all space within buildings of over 20,000 square feet as"multiple use" retail space (i.e.
requiring one off-street parking space for every 280 square feet). In other words, a classification
of the EQ-Life space (or any part of it) as a"spa" would depart from lonastanding city practice.
The Assistant City Attorney then echoes that analysis. She testified, according to the BZA
Minutas, that "she does not see discretion in the code as to whether or not T.his Boazd can
authorize the use of the rule of 5" She then testified that "it is best to be consistent City wide."
Moreover, "she would rely on what staff will tell you with regard to perhaps the other tenants in
the building and how they are being calculated."'
The BZA deliberations then touched on the legal validity of the 2000 resolution
approving the initial building site plan, which stated that the then-contemplated building on
Grand Avenue "shall" consist of basement storage space. One BZA member posited that the
word "shall" foreclosed any and all future uses of the basement space for purposes other than
storage. But the Assistant City Attorney took issue with that notion. She explained that the
word "shall" also appeared in the same City Council resolution with respect to the use of the first
floar as retail space. A reading of the word "shall" to foreclose any and all different uses at any
time in the future would seemingly lead to the absurd result that retail space on the first floor
� could never be converted to o£fice space. She also pointed out that the word "shall" was not
accompanied by the legally irnportant word "exclusively."
Despite the input from the Assistant City Attorney, the BZA then voted to accept the
5HA appeal. The motion to accept the SHA appeal was based on the sole reason that, while the
Rule of Five could be applied to EQ-Life's proposed use, the parking requirements for the
basement should have been calculated separately in accardance with the requirements for a
"health spa" and not a"multiuse retail center"; as a result, the required additional parking for
EQ-Life's proposed use was 6 or greater and the Rule of 5 did not apply. This rationale was
repeated by each BZA member far the record as the basis for their vote in accepring the SHA
appea1.
lo Id. at p. 12.
ti Id.
� Id. ("Certainly, if the number [of additional parking spaces required by EQ-Life's proposed
use] was 5, the rule of 5 would have to apply and we cannot vary from that.") (statement of BZA
member Borgen in making motion to accept the SHA appeal).
• 13 Id, at p. 13.
MP3 201489772 7
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Follow�ng the vote, the BZA staff issued the Resolurion setting forth the official rationale •
for the BZA decision to grant the SHA appeal. The first of the three reasons was merely a
factual suuunary of the EQ-Life proposal. The BZA Resolution then set forth the following two
substantive rationales:
1. The basement space must forevermore remain as "storage" space pursuant to the
2000 resolution approving the original site plan; and
2, The 2,138 square feet of EQ-Life's basement space should be separately classified
as a"spa" (not as commercial space itt a multi-use retail center) for Zoning Code purposes.
EQ-Life's Efforts to ,4ddress Corremunity Concerns
Both before and after the BZA hearing on August 1, 2005, EQ-Life made continuing
efforts to meet with the SHA and other community leaders to discuss their concerns regarding
EQ-Life and its potential impact on parking and traffic on Grand Avenue. SpecificaIly, EQ-Life
met with SHA members on June 30, August 4, August 11, and August 25. As part of those
discussions, EQ-Li€e provided the SHA and ottcer community leaders fitrther information
documenting that EQ-Life will have less parking needs and create less traffic than the prior
tenant. Moreover, EQ-Life has offared to enter into an agreement with the SHA, whereby EQ-
Life would, at its own expense, implement a series of ineasures to alleviate the current pazking
issues at 870 Grand Avenue and the surrouttding area.
Specifically, at a public heaziug of the SHA on Angust 11, 2005, EQ-Life submitted Yhe �
following plan:
• EQ-Life will ensure that its use of the basement space will not adversely impact pazking
on Grand Avenue.
o EQ-Life will lease ten off-street spaces that will be separately designated for use
by its employees at a nearby off-street location; and/or
o EQ-Life and the property owner offer to reconfigure the southeast comer of the
existing pazking ramp at 870 Grand Avenue to add five pazking spaces for use by
EQ-Life employees. During peak shopping periods (e.g. the holiday season), EQ-
Life will utilize valet parking services.
o EQ-Life will require the properiy owner to dedicate the additional ramp paziang
spaces to EQ-Life employees by placing resezved sings on such spaces.
• EQ-Life will commit to providing all customers with complimentary parldng in the
existing off-street ramp, regardless of length of stay.
• EQ-Life will promote the availability of off-street ramp parking through prominent
signage at store entry points. �
MP3 20148977.2 $
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. • EQ-Life's agreement to the foregoing will be contingent on obtauung City Council
approval of EQ-Life's use of the basement as originally proposed.
The SHA reviewed the proposal, and asked questions about its scope and effect. The members
voiced concerns about the leasing of ten parking spaces, at which point EQ-Life agreed to strike
that portion of the proposal. The SHA members also expressed concem about the "re-striping"
of the parking ramp. EQ-Life announced its willingness to come up with altemative
reconfigurations.
EQ-Life then provided the SHA with written materials documenting the following
important facts:
EQ-Life estimates that it will haue an average of approximately 329 customers per day,
as compared with an average range of 583-625 customers per day for the previous
bookstore tenant.
The adjacent parking ramp is under-utilized. Aistorical data shows that the ramp is, on
average, half-full. Testimony by SHA members and other observers at the hearing
confirmed that the existing off-street pazking ramp is substantially underutilized.
After hearing from the SHA, EQ-Life re-tooled its proposal. Gone was the option to lease
� existing parking spaces. Newly added, however, were the following pledges:
• EQ-Life will require that all of its employees use off-street parking in the existing
undeLUtilized parking ramp or, during peak periods, at other off-street locations.
• EQ-Life and the property owner will agree that the Rule of 5 will no longer be available
for use at 870 Grand Avenue by any future tenant.
• EQ-Life will commit to supporting SHA, GABA, and the efforts of other community
organizations to resolve parking and traffic issues.
• EQ-Life and the property owner wili waive any and ali appeals and claims witli respect to
the matters resolved by this proposal.
EQ-Life presented its re-tooled proposal to the SHA Zoning Committee on August 25, 2005,
The Zoning Committee deadlocked on whether to accept a compromise proposal, by way of a 3-
3 vote. The next regularly sched�led meeting of the SHA occurs after the September 7, 2005
City Council meeting at which trus matter will arise.
� t4 See the suznmazy of the EQ-Life proposal included with the materials attached at Tab 5.
MP3 201489772 9
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ARGUMENT � � ,- •
I. THE BZA'S ACTION VIOLATES APPLICABLF STATUTORY AND CODE
DEADLINES.
A. Because of the Passage of More Than 60 Days Since EQ-Life's Written
Request, the BZA Decision Is Legally Inoperative.
EQ-Life's zoning application is automafically approved under state law because the City
of St. Paul has taken longer thau 6Q days to act. Minnesota law (Mum. Stat. § 15.99, subd. 2)
commands that "an agency must approve or deny within 60 days a written request relating to
zoning," and that "[ff ailure of an agency to deny a request within 60 days is approval of the
request " The 60-day timetable begins to run when the applicable city office receives a written
request containing applicable information. More specifically, the statutory term "written
request relating to zoning" means "a request to conduct a specific use of land withiu the
framework of Yhe regulatory structure.s The time limit may be e�ctended up to a total of 120
days if, before the end of the uutia160-day period, the city provides the applicant with written
ttotice. The standard for the city is not fiigh. The stafute pemuts a city to extend tha 60-day
period for any reason (not just extenuating circumstances), as long as the reasons for the
extension are set forth in writing.
Courts are clear that "[w]hen the city fails to adhere to the time limit, the result must be
that the applicaYion was statutorily approved as a matter of law.s The doctrine of "substantial �
compliance" does not apply because § 15.99 is a"mandator�' statute (i.e. it includes a penalty
for failure to comply)2 Courts "cannot pernut a municipality to bend the Ietter of the statute for
the sake of administrative ease."
ls Minn. Stat. § 15.99, Subd. 2(a).
' Moreno v. City ofMinneapolis, 676 N.W.Zd 1, 5(Minn. Ct. App. 2004}.
17 Advantage CapitaZ Management v. City of Northfzeld, 664 N.W.2d 421, 427 (Mimi. Ct. App.
2003).
18 Minn. Stat. § 15.99, subd. 3(�.
19 American Tower; L.P. v. City of Grant, 636 N. W.2d 309, 314 (Minn. 2001).
20 Moreno, 676 N. W.2d at 5.
21 Manco ofFairmont, Inc. v. Town Bd. OfRockDell Tp., 583 N.W2d 293, 295 (Mimi. Ct. App.
1998).
ZZ Demolition Landfill Services, L.L.P. v. City of Duluth, 609 N.W.2d 278, 281 (Minn. Ct. App. �
2000).
MP3 20148977.2 1 Q
6
05-���
� An administrative appeal does not higger a new 60-day time limit. Courts have explored
whether an intermediate-level city office (such as an appeal board) is an"agenc}�' for purposes
of the 60-day rule. In other wards, courts haue asked whether a ruling by an intermediate-level
city office suffices for purposes of the 60-day rule. The answer is "no." The applicable date far
purposes of the 60-day rule is the date on which the city council makes a final deternunation.
This is consistent with the putpose of the rule, which is to ensure timely final action of zoning
decisions. IF cities are permitted to nonetheless allow potentially endless administrative appeals
after the expiration of the 60-day deadline, then the 60-day rule would be rendered meaningless.
In the present case, the 60-day period far City action on EQ-Life's written request has
long passed. EQ-Life made its first "written request" on April 11, 2005, with a follow-up
request on April 21, 2005. Neither EQ-Life nor the property owner has received any form of
written notice of an extension of the 60-day deadline. Thus, by operation of state statute, EQ
Life's written request must be deemed approved.
B. The BZA Unlawfully Considered and Granted an Untimely Appeal by the
Summit Hill Association.
The BZA had no authority or jurisdiction to entertain the Suimi�it Hill Associarion's
appeal because the Association filed its appeal too late. Section 61.701 of the �oning Code
provides that administrative appeals from a grant or denial of approval by the Zoning
Administrator must be filed with the Planning Commission within ten (10) days after the
! decision appealed from has been served upon the owner of the property. In this case, the June
22, 2005 decision by the Zoning Administrator was served on the building owner on June 23,
2005. The SHA Appeal was not filed until Wednesday, July 6, 2005, thirteen duys after service
upon the building owner, and was filed with the Board, not the Planning Commission.
Accordingly, the SHA Appeal to the BZA was unfimely and should have been dismissed. The
BZA did not have jurisdiction or authority to even hear the untimely SHA appeal in the first
place.
II. THE BZA DECISION IS UNLAWFUL AND MUST BE OVERTURNED.
The law in Minnesota is that a city must strictly construe zoning ordinances accarding to
their plain language, with any ambiguities resolved in favar of the property owner and against
the city. In other wards, "[t]o be effective any restriction on land use must be clearly
23 See Moreno, 676 N. W.2d at 5-6.
za Id.
25 See Zoning Administrator's Staff Report, attached hereto at Tab 5, at p. l.
� 26 See, e.g., SLS P'ship v. City of Apple I�alley, 511 N.W.2d 738, 741 (Minn. 1994); Frank's
Nursery SaZes, Inc. v. City ofRoseville, 295 N.W.2d 604, 608 — 609 (Minn. 1980).
MP3 20148977.2 11
��-��;
expressed." A city should avoid an interpretation that produces an absurd result 28 In adopting �
the Resolurion, the BZA violated all of these basic legal principles.
A. Tlie Resolution's Conclusion That EQ-Life's Proposed Use Of Basement
Space Must Be Separately Designated As "$ealth Spa" Space For Parking
Purposes Ts Contrary To The Plain Language Of The Code, Inconsistent
With Past City Practice, And Produces Absurd Results.
The Zoning Code (at §63.207) clearly sets forkh the parking requirements applicable to
the EQ-Life space at 870 Grand Avenue. The space is part of a mulfiple use retail building with
thousands of feet of commercial space. As such, it falls within the Zoning Code's definition of a
"multi-use retail center.s The Zoning Code expresslyprovides that the parking requirement for
commercial uses within such buildings is ona pazking space per 280 square feet. This is the
parking requirement that was applied to the prior tenant at 870 Grand Avenue and the other
tenants within the same building. As staff testified at the BZA hearing, this straightforwazd
application of the multi-use retail center pazlang requirements has been consistently employed by
the City with respect to other such siructures throughout St. Paul.
Despite the clarity of the Zoning Code, and the longstanding past practice in St. Paul, the
BZA chose to sepazately desigiate a portion of EQ-Lifa's proposed use as "health spa." In doing
sq the BZA ignored the Code's definition of a multi-use retail center and the express pazking
requirements that apply to such buildings. The BZA's decision in that respect was utterly
arbitrary, and tharefore unlawful. WiYhout any explanafion, the BZA applied the Zoning Code to �
EQ-Life in a manner that it had not applied to other businesses (including the other businesses
wifhin the same building).
The BZA's decision to separately designate parldng requirements based on the specific
retail use of a particular tenant in a`4nulti-use retail center" creates an absurd result that is
hannful to all Saint Paul businesses. The BZA Resolution essetttially decrees that each proposed
retail use within a multi-use retail center (and, indeed, within each tenant space) must be
separated and the independent pazlang requirements calcutated far each use. This eliminates any
certainty or consistency with respect to how parlang requirements for multi-use retail centers are
determined; each center would have different parking requirements depending on the individual
Z7 Chanhassen Estates Residents Association v. City of Chanhassen, 342 N.W.2d 335, 340
(Minn. 1984}.
Z$ Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn. 1997).
29 See Zoning Code, § 60.214 (defining a"multiuse retail center" as "a single, unified
development on one (1) zoning lot that provides commercial space to a variety of retail uses and
has at least twenty thousand (20,000) square feet of gross leasable area"). No party has disputed
the fact that the space at 870 Grand Avenue is part of a multiuse retail center or that all other
tenanfs in the building haue had their pazking requirements detennined in accordance with that �
designation.
�3 zoiasvr�.z 12
• tenants and the different uses each tenant makes of their space. In the event a use changes due to
a new tenant or the decision of an existing tenant to change its business, the parking
requirements would mandate re-calculation to detennine whether the mulri-use retail center
could maintain compliance with the Code. Aside from being wholly unworkable and
impractical, such an approach would render the Code's provisions establishing specific parking
requirements £or multi-use retail centers entirely meaningless. For this reason alone, the BZA's
ruling should be overhuned.
B. The BZA's Conclusion That EQ-Life's Proposed Use Is Prohibited By A
2001 City Council Resolurion Was Uniawfully Adopted, Is Contrary To The
Code and Past City Practice, Produces Absurd Results, and Is Inconsistent
With The Plain Text Of The Resolution Itself.
The BZA Resolufion also includes an erroneous finding that the use of basement space at
870 Grand Avenue is permanently prohibited by a 2000 resolution approving the original
building site plan. According to the BZA, the use of the word "shall" (referring to the site plan's
contemplated use for the basement space at 870 Grand Avenue) is a permanent prohibition of
any other use during the entire life of the building.
As an initial matter, this finding was not lawfully adopted by the BZA and has been
improperiy included in the Resolution. According the to the official minutes of the BZA
• hearing, the stated rationale of every single BZA member in upholding the SHA appeal was that,
as discussed above, the Zoning Administrator should haue sepazately calculated a portion of EQ-
Life's as"health spa." Not a singie BZA member gave as his her rationale, on the record, the
fact that a City Council resolution compelled a certain result. Only in the Resolution, which was
drafted after the BZA ended its hearing and consideration of the SHA appeal, was the additionai
rationale added that the 2000 site plan approval resolution permanently prohibited use of the
basement at 870 Grand Avenue. Such "after the fact" justifications are inconsistent with the
basic principles of due process and may not be considered as a lawful basis for the BZA's
actions.
In any event, the Resolution's reference to the 2000 site plan approval also conflicts with
the Zoning Code. In essence, the BZA Resolution concludes that existing uses referenced in a
site plan approval are set in stone and can never be changed for any reason. However, the Code
clearly provides property owners the right to change existing uses from those approved in a prior
Site Plan. Indeed, the City processes and approves changes in use of retail space on a regular
basis for all types of retail establishxnents. It would be wholly impractical and commercially
infeasible to require that the use of a commercial establishment may never change from that set
forth in the original Site Plan approved by the City. Yet that is exactly what the BZA's
Resolution requires. The future result of the BZA's interpretarion would be an unworkabie
patchwork of zoning requirements throughout the city, subject only to the prejudices and
� 3o Uniprop Manufactured Hous. v. City of Lakeville, 474 N.W.2d 375, 379 (Minn. Ct. App.
1991).
MP3 201484772 1 �
r, -
preferences of applicable o�cials. Neither Minnesota law nor common sense will support that
absurd result.
Even if the site plan approval resolution were applicable, the language of that Resolution
does not support the BZA's deteimination. The BZA rested its decision in part on a misreading
of the Resolution. The resolution states that "[t]he retail and parking development ... shall
consist of basement starage, street level retail and cominon areas and two levels of shuctured
parldng above the retail." As the Assistant City Attorney noted at the time, this statement does
not prescribe the duration of each use described therein, and does not include the word
"exclusively" following the phrase "shall consist." Nor is there any other indication in the site
plan approval resolution that the word "shall" was intended to be mandatory or permanent with
respect to the designated uses set forth in the site plan. Nevertheless, the BZA appazently
concluded at the August l, 2005 hearing that the resolution's reference to "basement storage"
operates as a permanent baz to any other possible use of the basement at any time now or in the
future. That conclusion reads into the resolution a never-ending restriction that the plain text,
and common sense, does not support.
IIT. THE BZA'S DECISION IS PROCEDURALLY DEFECTIVE
In addition to being conlrary to the Zoning Code and other applicable law, the BZA's
decision reflected numerous procedural defects that require reversal. Zoning appeals are quasi-
judicial proceedings that require, at a minimum, a fair and full opporhxnity for the parties to be
heazd and submit televant evidence. Substantively speaking, this means that reasons given for
a zoning decision must be "legally sufficient and supported by facts in the record. When, as
in a zoning procedure, a governmental entity acts in a"quasi judicial capacity, the action is
"reasonable if supported by substantial evidence.
Importantly, neighborhood opposition cannot be the basis for denying a use of property
otherwise pernutted under a zonin� code. "A city may consider neighborhood opposition only
if based on concrete information." 6
31 See, e.g., State v. .Tones, 234 Minn. 438, 440-41 (Miuu. 1951} (articulafing the long-adhered to
rule that ixse of the word "shall" is only deemed to prescribe mandatory action where consistent
with the overall context of the action taken).
3Z See Humenansky v. Minn. Bd. ofMed. Exam'rs, 525 N.W.2d 559, 565 (Minn. Ct, App. 1994);
Kletschka v. Le Sueur County Bd. Of Com'rs, 277 N.W.2d 404, 405 (Minu. 1979).
33 parranto Brothers, 425 N.W.2d at 589 (emphasis added).
34 Hibbing Taconite Co. x Minnesota Public Service Cortamission, 302 N.W.2d 5, 9(Minu.
1980).
�
n
LJ
3s .See Condor Corporation u City of Saint Paul, 912 F.2d 215 at 223, n.15 (holding that under �
Minnesota law, neighborhood opposition is insufficient to deny a permit); Chanhassen Estates
Residents Association v. City of Chanhassen, 342 N.W2d at 340 (holding that non-specific
t�[P3 zmasmzz 14
� ��
At the BZA hearing on August 1, 2005, the BZA chose not to review or read the
information and exhibits submitted by EQ-Life. Those materials included a lengthy letter
memorandum, plus several accompanying documents illustrating why the SHA appeal lacked
merit. The BZA apparently failed to review the materials, and did not aclrnowledge them in any
way.
The BZA also failed to allow EQ-Life to respond to the testimony of SHA
representatives. The SHA members had two separate opportunities to testify. EQ-Life had only
a single opportunity to testify. The SHA and those opposing EQ-Life's proposed use were
permitted to submit a wealth of evidence regarding the general parking situation on Grand
Avenue and the concerns over past actions of the City council. The BZA further admitted
testimony opposing EQ-Life itself and the nature of its business concept. When EQ-Life
attempted to refute these misconceptions about its business and provide evidence to show that
the concept would benefit the community, the BZA cut off that testimony, stating it wasn't
relevant. At the same time, the BZA did not make auailabie to EQ-Life, until after the public
hearing, the materials submitted by the SHA. This unbalanced opportunity to submit and have
evidence heard deprived EQ-Life of its basic rights of due process at the hearing and resulted in
a decision that did not reflect the weight of evidence in the record.
•
nei�borhood opposition and testimony that a permitted use poses potential traffic problems is
insufficient to justify denial of use permit).
� 36 Yang v. County of Carver, 660 N.W.2d 828, 833 (Minn. Ct. App. 2003). -
MP3 20148977.2 ] $
CONCLUSION � � ` p � � �
For all the foregoing reasons, EQ-Life respectfizlly requests that the City Council reverse
the deteimination of the BZA and reinstate the conclusions of the Zoning Adiniuistrator.
Dated: September 2, 2005.
ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
By:
Todd G. axtman (24553'�
Stephen F. Simon (27012X)
2800 LaSalle Plaza
800 LaSalle Avenue
Mimieapolis, MN 55402-2015
Phone: 612-349-8500
Fa�c: 612-339-4181
ATTORNEYS FOR EQ-LIFE
�
�
MP3 20148977.2 1(7
Sep. 7, 2005 10:53AN1
� � r . �
L r
No�. Q388 p.P _? of 1
c
John T�ardwick - Parking Resolution " �° "
N�.,�,�.�,�„�
FYom: "Brad HoyN' <b.hoyt@leasespace.com>
To: <john.hardwick@ci.stpaul.mn.us>
Date: 9/7/2005 9:57.28 AM
SubJect: Parking Resolution
CC: <rvazd3@ci.stpaul.mn.us>, <wwazd2@ci.stpaul.mn.us>, nvardl@ci.stpaul.mn.us>,
<wward4@ci.stpaul.mn.us>, <ward5@ci.stpaul.mn.us>, <wazd6@ci.stpaul.mn.us>,
<ward7@ci.stpaul.mn-us>, "Peter Coylc" <pcoyle@larkinhoffinan.com>, "Steven A.
Schumaister" <SASchumeister@rlanc.com>, "William Skolnick"
<billskolnick@hotmail.com>, "Eric Buss° <EBuss@LifeTimeF'imess.com>
Dear Mr. Hartlwlck:
I have besn notiFled of the pendency of a Board of Zoning action that Imperlls every commercial property In
the Cily of St. Paul. It Is my understanding that, in the absence of a Councll action to resclnd the Board's action
that tt wlil becflme permanent. While I am not aware of the circumstances that dlctated this action I can tell you
that it is very 111-conceived. It wlll have the effect of creating thousands of non-conforming uses. The City witl be
unable to isaus "zoning letters" required by all lenders and purchesers of property. The decline In property
valUea wUl be calamitoua. The resolutlon seems to contein IanQuage that overides all other components of the
ZoninO Code such as makinA any change In the use of the properry lllegal. I guess there won't be any further use
for the Zoning Board.
I own the two block long properry at 2145 Ford Parkway. My building has been the oniy property in St. Paul
that hss, from inceptlon, bsen requirad to have att of its parking off-street. Llfetime Fitness has matntalned a
fitness club In the buildinp for ten years. They were about to purchese the property and drameticaily Increase the
tex bese and thelr Investment in the bullding. Their leese le up next month. In the absence of a rescission of this
III-begotten ordinance the City of St. Paul wiil lose Llfetime Fitness. Period. This club has over 7,000 members
who will lose thls beneflt. The City wiil lose )obs and tax dollars. Further, their downtown locatlon will be iliegal as
weil. Come to think of it, every future attempt to convert your world-record vacant office buildings to resldentlal
would be iileDal ps well. In fect, there ers many buildings in St. Paui that have no parklne off�treet whatsoever.
All will be 1llegal.
Clearly very Ilttle thought was Biven to the impact of this ordfnance. i can assume its adoption was due to an
Isolated sltuatlon somewhere In the City and it seemed Iike a good idea at the time. It has enormous
consequences. This Cfty spends millions of dollars to lure business and Jobs to the city, 7his Ordinanoe 4orcea
thousands out! It wlll leed to an avalanche of lewsuits and tax appeals.Ciearly, affected property owners wlll be
antltled to compensatlon for what is clearly a taking of their property.
I urge you to edvise the Clty Councii to rescind thls ordinance at todays meeting. If there is an Issue that
needs addressing you must involve those affected, lifetims Fltness Just heard of this yesterday via a
communicatlan from the Chamber of Commerce. It is an outrage that property owners end buslnesses whose
Ilvelihoods ere at stake were noE consulted or notifled. There la a reason that St. Paul suffers the hlghest
commerclsl vacancy ratas oP any major metropolltan area in the mldwest. It is actions ilke these that
ceuse the 411ght of buslness and Investment from a clty. l eannot over-emphaelze the lmportance of thla
metter to the Clty of St. Paul. I appreclate your cnnsideretion.
Bradley Hoyt,
Presldent, Continental Property Group
fitR•/!C'•11)ncnments and Settines�Hardwici\Local Settittzs\Temv1GW}00OO1.HTM 9/7/2Q05
Sep. ). 2005 1�:53AM
No.0388 paP. 3of1
�
]ohn Hardwick - Grand Avenae Parking Issues —� �^ - �
From: "Lucy )ohnson" <lucyhjohnson@msn.com>
To: <�ohn.hardwick@ci.stpaui.mn.us>
Dpte: 9/7/2005 9:28:5Q AM
Subject: Grand Avenue Parking Issues
Mr. Hardwick,
I am unable to attend the City Councii meeting, but piease
relay my support of the Summit Hili Assoclatlon's position.
EQ-Llfe shou{d not expand in the basement beuuse the
parking is inadequate.
Thank you for your attention to this matter
Lucy )ohnson
845 Llncoln Ave
St, Paul, 55105
651-224-7102
fi1R•/R7�\l�nr.uments and Setrinss�Tiatdwici�I,ocal Settines\TemA\GW}00OO1.HTM 9/7/2405
Sep. l. 2005 10:53AN1 , No. 0388 Pagc 4 of 1
John Hardwick -1Vialti-use parking resolution
FYom: "Louie Teppen" dTeppen@pakproperties.nat> (��f f�
To: <john.hardwick@ci.stpaul.mn.us>
Date: 9/7/2005 9:14:55 AM
Subject: Multi-usa pazking resolution
City of St. Paui:
We at PAK Prap�rties would ilke to volce our concern regarding Aug. 1, 2005 Resolution No. 05-128190. We
have meny valuable tenants who may be out of compllance as a result. The Lowry, Rossmor end Produce
Exchange buildin0 currently have effective parkin0 setups and wlll all suffer if this resolutlon Is upheld. Please
ksep our entl other St. Paul business' concerns In mind.
Louia Teppen
PAK Propertles
657-224-6901 (ext. 11)
Iteppen��Aakpropert{as net
fite�//c':�Docrunents and Settines\fiardwici�i.ocal Settinqs\Temp\GW}00OO1.HTM 9/7/2005
Minnesota Statutes 2004, 15.99
•
Minnesota Statutes 2004 Table of Cha�ters
Table of coatents for Cha�ter 15
15.99 Time deadline for agency action.
•
Subdivision 1. De£initions. (a) For purposes of this
section, the £ollowing terms sha11 have the meanings given.
��' .
(b) "Agency" means a department, agency, board, commission,
or oCher group in the executive branch of state government; a
statutory or home rule charter city, county, town, or school
district; any metropolitan agency or regional entity; and any
other political subdivision o£ the state.
(c) "Request" means a written application related to
zoning, septic systems, or the expansion of the metropolitan
urban service area, £or a permit, license, or other governmental
approval of an action. A x'equest must be submitted in writing
to the agency on an application form provided by the agency, if
one exists. The agency may reject as incomplete a request not
on a form of the agency if the request does not include
information required by the agency. A request not on a form of
the agency must clearly identify on the first page the specific
permit, license, or other governmental approval being sought.
No request sha11 be deemed made if not in compliance with this
paragraph.
(d) "Applicant" means a person submitting a request under
this section. An applicant may designate a person to act on the
applicant's behalf regarding a request under this section and
any action taken by or notice given to tne applicant's designee
related to the request sha11 be deemed taken by or given to the
applicant.
Subd. 2. Deadline for response. (a) Except as
otherwise provided in this section, section 462.358, subdivision
3b, or chapter 505, and notwithstanding any other law to the
contrary, an agency must approve or deny within 60 days a
written request relatinq to zoning, septic systems, or expansion
of the metropolitan urban service area for a permit, license, or
other governmental approval of an action. Failure of an agency
to deny a request within 60 days is approval o£ the request. If
an agency denies the request, it must state in writing the
reasons for the denial at the time that it denies the request.
(b) When a vote on a resolution or properly made motion to
approve a request fails for any reason, the failure sha1l
constitute a denial of the request provided that those voting
against the motion state on the record the reasons why they
oppose the request. A denial of a request because of a failure
to approve a resolution or motion does not preclude an immediate
submission of a same or similar request.
• (c) Except as provided in paragraph (b), if an agency,
other than a multimember governing body, denies the request, it
must state in writing the reasons for the denial at the time
that it denies the request. If a multimember governing body
Page i of 3
http://www.revisor.leg.state.mn.us/stats/15/99.htm1 9/2(2QQ5
Minnesota Statutes 2004, 15.99
. : � _; _� . , �: -
denies a request, it must state the reasons For denia2 on the �
record and provide the applicant in writing a statement of the
reasons for the denial. I£ the written statement is not adopted
at the same time as the denial,�it must be adopted at the next
meeting following the denial of the request bnt before the
expiration of the time allowed for making a decision under this
section. The written statement must be consistent with the
reasons state2l in the record at the time of the denial. The
written statement must be provided to the applicant upon
adoption.
Subd. 3. Application; extensions. (a) The time 1i.mit
in subdivision Z begins upon the agency's receipt of a written
request containing all information required by law or by a
previously adopted rule, ordinance, or policy of the agency,
including the applicable application fee. If an agency receives
a written request that does not contain a11 required
information, the 60-day limit starts over only if the agency
sends written notice within 15 business days of receipt of the
request telling the requester what information is missing.
(b) If a request relating to zoning, septic systems, or
expansion of the metropolitan urban seroice area requires the
approval of more than one state agency in the executive branch,
the 60-day period in subdivision Z begins to run for all
executive branch agencies on the day-a request containing all
required information is received by one state agency. The
agency receiving the request must forward copies to other state
agencies whose approval is required.
(c) An agency response meets the-60-day time limit if the -
agency can document that the response was sent within 60 days of
receipt of the written request.
(d) The time limit in subdivision 2 is extended if a state
statute, federal law, or court order requires a process to occur
before the agency acts on the request, and the time periods
prescribed in the state statute, federal 1aw, or court order
make it impossible to act on the request within 60 days. In
cases described in this paragraph, the deadline is extended to
60 days after completion of the last process reguired in the
applicable statute, 1aw, or order. Final approval of an agency
receiving a request is not considered a process for purposes of
this paragraph.
(e) The time 2imit in subdivision 2 is extended if: (1) a
request submitted to a state agency requires prior approval of a
federal agency; or (2) an application submitted to a city,
county, town, school district, metropolitan or regional entity,
or other political subdivision requires prior approval o£ a
state or £ederal agency. In cases described in this paragraph,
the deadline for agency action is extended to 60 days after the
required prior approval is granted.
(f) An agency may extend the time limit in subdivision 2
before the end of the initial 60-day period by providing written
notice of the extension to the applicant. The noti£ication must
state the reasons for the extension and its anticipated length,
which may not exceed 60 days unless approved by the app2icant.
Page 2 of 3
.
•
•
httpJ/www.revisor.leg.state.mn.uslstats/15/99.hhn1 9/2/2005
s
•
•
Minnesota Statutes 2004, 15.99
(g) An applicant may by written notice to the agency
request an extension of the time limit under this section
HIST: 1995 c 248 art 18 s 1; 1996 c 283 s 1; 2003 c 41 s 1
Page 3 of 3
0 5 - 8��
Copyright 2004 by the Office of Revisor of Statutes, State of Minnesota.
http:l/www.revisorleg.state.xnn.us/stats/15/99.htm1
9/2/2005
�3�-���
�
MORENO v. GITY OF MINNEAPOLIS Minn, 1
Ct4as6]6 N.W1d I (MivvApp. 2004)
Donna MORENO, et aL, Appellants,
Respondents,
v.
CITY OF 1VIINNEAPOLIS, Respondent,
v.
Minneapolis Institute of Arts, third-
party intervenor, Respondent,
Appellant
Nos. A03-837, A03-943.
if not timely denied, be deemed approved,
and thus application opponent's appeal to
eity council firom commission's appmvat of
zoning appHcaEion did not frigger new 60-
day time period under statute. hence, be-
cause eity council did not act on appeal
within imtiat 60 day period aftzr submis-
sion, applicatian was deemed appmved.
M.S.A. § 15.99.
See publicaaon Words and Phrases
for other judicial constructions and
definitions.
Court of Appeals of Minnesota 2�� �d Planning st
March 9, 2004.
Background: Art museum applied for
amendment to ifs planned unit develop-
ment (PUD) to add a new wing to muse-
uxn. The city planaing commission ap-
proved application. Neighbors appealed.
The city cuuncl denied appeai and ap-
proved application. Neighbors appealed
seelong declaratory and injunetive relief:
Musevm intervened and cross�laimed
against city. The Hennepin County Distriet
Court, E. Anne MeKinsey, J., granted
city's motion for snmmary judgment, but
denied museum's cross-elaim. Neighbors
appealed. Museum filed notice of review
and direct appeaL
Holdings: The Court of AppeaLs, Audson,
J., held that:
(1) beeause city council did not act on
appeal within ixritiai 60 day period after
submission, application was deemed
approved, and
(2) statutonly�ompelled approvai of appli-
cation was not arlritrary, capricious, or
an error of ]aw.
AfSrmed as modified.
When the city faiLs to adhere to the
time limit imposed by statute requiring
that zoning applications be approved or
denied witbin 60 days, the result must be
that the application was statutonly ap-
prwed as a matter of law. M.S.A.
� 15.99.
3. Zoning and Planning �439.5
Under the appeals process established
in Minnea.polis, a zoning application is not
approved or denied for purposes of statute
req�ring that zoning applications be ag-�
proved or denied wif,hin 60 days, or if the
deadline is properly extended by the agen-
cy, within 120 days, untff the city couneil—
not the planning commission—has resolved
all appeals challenging the application.
4. Administrative Law and Procedure
�763, 788, 796
On appeal &om a quasi-judicial deci
sion of a governmental body, appellants
ean challenge the deeision on the grounds
that it was arbitrary, oppressive, um•ea-
sonable, and fraudulent, under an errone-
ous theory of ]aw or without evidentiary
suppoxt.
1. Zoning and Planning «439.5
City planning cownission was not an
"agency" within meanuig of statute reqnir
ing that zoning applications be approved or
denied within 60 days of subtnission, and,
5. Zoning and Planning �605
A eourt is obligated to af£u�m the deci-
sion regazding a zoning applieation if the
record shows the city engaged ia reasoned
decision malnng.
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2 M�nn. 676 NORTH WESTERN REPORTER, 2d SERIES
6. Zoning and Planning �439.5
When appmval of a zoning appliration
is compelled by statute requiruig that zon-
ing applieations be approved ar denied
within 60 days, it cannot then be argued
that approval by the city was arbitrary,
capricious, or an error of law. M.S.A.
§ 15.99.
SyUabus by the CaurE
I. A zoning application is not ap-
proved or denied for purposes of Minn.
Stat § 15.99 (2002) until the city has de-
cided all appea7s challenging the approval
of the zoning application.
II. Where a zoning application is au-
tomatically approved by operation of Mum.
Stat. § 15.99 (2Q02), the agency�s appmval
of the application is, by definition, not arbi-
trary, capricious or an enor of law.
Daniel L.M. Kennedy, Minneapolis, MN,
for Moreno and Smith.
Jay M. Heffem, Miuneapolis City Attor-
ney, Carol Lansing, Assistant City Attor-
ney, Minneapo]is, MN, for City of Minne-
apolis.
John H. Aerman, D. Charles Mac-
donald, Miehael A. Ponto, Faegre & Ben-
son LLP, Minneapolis, MN, for Minne-
apolis Institute of Arts.
Considered and decided by HUDSON,
Presiding Judge; PETERSON, Judge;
and HARTEN, Judge.
OPAVION
HUDSON, Judge.
In 2002, the Minneapo]is Institute of
Arts (MIA) applied for an amendment to
its 1973 planned unit development (PUD)
in order to add a new wing. The Mnuie-
apolis City Planning Comntission (planning
commission) approved the MIA's applica-
tion and the MIA's neighbois (Smith and
Moreno) appealed this decision to the Min-
neapolis City Covnpl The city eouncil
heard and denied the appeai, appmving
the MIA's application subject to eonditions
recommended by the city-planning depar�
ment The neighbors appealed this deei-
sion to the district eourt seeldng dec]arato-
ry and injunctive relie� Although not
named in the original complaint, the MIA
intervened and argued, by way of cross-
claim against the city and counterelaim
against Smith and Moreno, that its zoning
appfication was automatically approved by
operation of Minn.Stat. § 15.99 (2Q02). In
conjunetion with the parties' cross-motions
for summazy judgment, the distriet court
found that the MIA's application was not
automatically approved by operation of
Minn.Stat. § 15.99. But the district court
affirmed, on the merits, the cit�s appzoval
of the MIA's application. On appeal to
this court, Smith and Moreno azgue that
the city erred by approvmg the MIA's
application because the application was de-
fective and violated ASinneapolis zoning or-
dinances. On appeal and by natice of re-
view, the MIA challenges the district
eourt's denial of its cross-claim against the
city, azguing that its application was auto-
matically approved by operation of Minn.
Stat § 15.99, and therefore Smith and
Moreno are precluded finm challenging
the city�s acfion. We affirm as modified.
FACT5
The Minneapolis Institute of Arts (MIA)
is a museum operated for the benefit of
the general public. The original building
was completed in 1915 and expanded in
1974. The building is loeated in Dorilus
Morrison Park (the pazk), which was deed-
ed ta the Minneapolis Park Board in 1911.
The deed had restrictions giving the Min-
neapolis Soeiety of Fine Arts, the prede-
cessor to the MIA, exclusive rights "to
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MOAENO v. CITY OF MINNEAPOLIS Minn. 3
Citeas676 N.W2d 1 (MlmApp.2004)
occupy, use, manage, and eontro] every
building erected upon said premises,
whether for the purposes of a public muse-
um, or a public gallery of art, or for a
school of arts and erafts, for an auditori-
um, or for any eognate purpose...." Oth-
er bmldings located within the park are
the Minneapolis CoIlege of Art aad Desiga
(MCAD) and the CSvldren's Theatre Com-
pany (CTC). The MCAD and the CTC
hofd Ieases firom the MIA for the buildings
that they oecupy within the pazk The
leases eontain provisions giving the MIA
control of the leased premises.
The 1974 eapansion of �e MIA was
authorized by a eonditional use permit
(CUP} for a pLwned unit development
(PIID) that the eity approved on February
23, 1973. tlt the time of the 1973 PUD,
the entire PUD area was controlled by the
Minneapolis Society of Fine Arts, wluch
was comprised of the NfIA, the MCAD,
and the CTC. The institutions separated in
1988, and since that time the Minneapolis
Society of FSne Arts tias consisted solely of
the MIA. Because the original muse�
e�cpansion had been approved as a CUP
for a PUD, the city determined that the
MIA's proposed new wing would require
approval of an amendment to the 1973
PUD.
Minn Stat § 15.99 (2002) requires that
zoning applications be approved or denied
within 60 days, or if the deadline is proper
ly exfznded by the agency, within 120
days. If an application is not denied with-
in that time frazne, it is deemed approved.
The MIA submitfed an application for
amendment of the 1973 CIJP for a PUD to
add the new wing. The city considered
the application eomplete on July 23, 2002,
with a 66tlay deadline of September 23,
2002 The MCAD and the CTC consen�
1. The actual 60-day deadline wu Septem6er
2t, 2002; but because Septem6er 2l was a
Samrday, the deadline was eutended to the
ed to and supported the MIA's application
for the PUD amendmenG
The Minneapolis City Plaaning Deparb
ment reviewed the MFAs applieation and
prepazed a report reeommending approv-
al of the amendment to the PUD. At a
September 9, 2002, public hearing, the
planning commisson appmved the MIA s
apglication subject fa the eonditions rea
ommended by the planning department
Decisions of the planning commission
are fiaal, subjeet fo appeal to the Minne-
apolis City Counal and subsequent jndieiat
review. ➢+�meapolis city ordinances give
affected parties an opportunity to appeai
the planning crommission's deeision to the
eity counnl within ten days of approval of
an application.
On SeptemUer 19, 2002, appe➢ant Paul
Smith appealed the planning commission's
apgroval of the MIA application to the city
eounal Smith's appeal was first heard on
Oetoher 1, 2002, after—according to the
MIA—the Septemher 23, 2002, expuation
of the 60-day deadline. The city; however,
determined that Smith's appeal was a sep-
arate written request under Minn.Sfat
§ 15.99, triggering a new 60-day deadline.
Thus, according to the city, the new time
]imit for deciding Smith's appeal would end
on November 18, 2002. Then, by letter
dated Novemher 8, 2002„ the city informed
Smith that pursuant to Minn.STa�. § I5.99,
it was extending the new 6Q-�ay time ]imit
to 120 days; ie., until January i7, 2003.
The zoniag and planning committee of
the city eouncil continued the October 1,
2002, heazing to Oetober 29, 200`L, vehere
the committee for�varded Smith's appeal to
the city eouncil without a recommendation.
On Noveatber 8, 2002, the city council
voted to return the appeat to the wning
neat business day, which was September 23,
2002. See Mi�ss�. R Civ. P. 6.01.
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¢ Mmn. 676 I30RTH WESTERN REPORfiER, 2d SERIES
and planning committee to addre.ss the
issues iaised in Smith's appeal. The wn-
ing and planning eotnatittee directed the
city-planning department to prepaze a sup-
plemental report addressing Smith's is-
sues.
The planning department addressed
Stnith's issues in a report on November 26,
20Q2. In the report the planning depart-
ment recommended that the city councii
adopt the original findings of the plannmg
eommission and deny Smith's appeal, sub-
ject to certain eonditions. On November
26, 2002, the zoning and planning eommib
tee fornarded Smith's appeal to the city
council without recommendation. On De-
cember 13, 2002, the city council denied
Smith's appeal and adopted the findings of
the November 26, 2002, planning deparb
ment report..
On January 15, 2003, Smith and Moreno
filed a complaint with the district eoui'c for
declaratory and injunctive relief and
sought a temporary restrau�ing order to
halt construction of the new wing. The
district eourt issued an order on May 29,
2003:(1) granting the city�s motion for
summary judgment in its entirety; (2)
granting the MIA's motion for snmmary
judgment as to Smith and Moreno and
denying its cross-claim against the city
that Minn.Stat. § 15.99 automatically ap-
proved its application, and (3) denying
Smith and Morends motion for summary
judgment in all respeets. Smith and Mor-
eno appealed to this court, and the MIA
filed a notice of review and direct appeal to
this court. This consolidated appeal fol-
lows.
ISSUES
T. Did the distriet court err in deter
ituning that an appeal to the Minneapolis
City Council challenging the planning com-
mission's approval of a zoning application
triggered a separate 60-day time limit un-
der Minn.Stat § 15.99 (2002)?
II. Did the automatie approval of the
MIA's wning app&cation by operation of
Minn.Stat § 15.99 eut off the right of ap-
peIlants Smith and Moreno to appeal or
otherwise challenge tt�e eity�s approval of
the zoning applicafion?
ANALYSIS
[1] The MTA eontends that the city
council and the district court erred by
determining that the MIA's application for
a PUD amendment was not appmved by
operation of Minn.Stat. § 15.99 (2002).
The MIA contends that Smith's appeal to
the eity challenging the MIA's application
was subject to the original 60-day time
limit triggered by the filing of the MIA's
initial application on July 23, 2002. The
MTA contends that because Smith's appeal
was not decided by the city within 60 days
of that date, the MTA's application was
automatieally approved by operation of
Minn.Stat § 1599.
The city determined that the MTA's ap-
plieation was not automatically approved
by operation of Minn.Stat § 15.99 b@cause
Smith's appeal of the planning eoirunis-
sion's decision was a separate "wriEten re-
quest" under Minn.Stat. § 15.99 that trig-
gered a new 60-day time limiG
Thus, the issue before this covrt is
whether an appeal to a municipal govern-
ing body triggers a new, sepazate 64day
deadline under MinnStat § 15.99, or
whether it is part of the original zoning
request and mnst be decided within the
origuial 60- to 120-day time period. This
appears YA be an issue of first unpression
as Minn.Stat. § 15.99 does not direetly ad-
dreas this issue and the parties do not eite,
nor ha�e we found, case law directiy on
point
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��'ra>�,
MORENO v. CPPY OF bIINNEAPOLIS Minn 5
CImu676 N.WSd 1 (Mim.App Zpp4)
We review de nwo the district eoist's
interprefataon of the taw, incIuding ques-
tions of statutory interpretation. Sare2-
son v. SG PauL Ramsey Med Ctr., 457
N.W2d 188, 190 (Minn.1990), rehz¢ring
denied (�nn. July 17,1990).
[2] Minn.StaG § 15.99 provides ttiat
an agency must approve or deny with-
ia 60 days a wriEten reqaest retaEing
to wning. ... Falure of an ageney to
deny a request within 6Q days is ap-
pmvat of the request If an agency
denies the reqr�est, it must state in
writing the reasons for the denial at
the time that it denies the request.
Minn.Stat § 15.99, subd. 2(2002). The
60-day timetable beo ne fu run when the
agency reeeives a written request with all
tfie necessary informafion. td at subd. 3.
The time limit in subdivision 2 may be
exEended up to a totai of 120 days if,
before the end of the initial 60-day period,
the city pmvides wriLfen nof.ice of t[ie ex-
tension to the applieant Id at subd. 3(fl.
When the city fa�s to adhere to the time
limit, the result must be that the applica-
tion vaas statutonly approved as a matter
of law. See Gu.n Lake Ass n u Caunty of
Aifkiry 612 N.W2d 1T7, 181 (Minn.App.
200U), review denied (Mian. Sept 13,
2000), Dzmolition L¢md,Til Servs., LLC v.
City of Buluth, 609 N.W2d 278, 281
(Nlinn.App2Q00), revtetv dercied (Minn• Jul.
25, 2Q00).
Here the MIA's application was eom-
plete aad submitted to the planning com-
misson on July 23, 2002. Accordingly, the
eity was required to approve or deny the
appfication on or before September 23,
2W2, or risk automatic approval. The
planning eommission approved the MIAs
application on September 9, 2002 and the
city azgues that the planning eommission's
approval of the MI2is applieation satisfied
the requirement that the eity act on the
application within 60 days. Smith Sled his
appeal of the planning commission deasion
on September 19, 2002. The city consid-
ered the appeal a new wriEten request
triggeriug a new 60--day time l�it tmder
Minn 3tat § 15.99. The diatrict eourt
agreed, finding tbat the planning commis-
sion was an ° agency" under section 15.99
with the authority and responsibility to
appmve or deny a zoning nquest' The
planning commission approved the MIA's
application on SeptemUer 9, 2002, more
than a week before the 60-day period ex-
pired on September 23, 2002. Thus, the
distriet court mncluded, the city complied
with section 15.99.
But the MIA argues that the planning
commission's approval of the app&eation is
not an appmval for pnrposes of Minn.Stat
§ 15.99 because the planning rnmnusson
is not an "agency�' within the definition of
Minn.StaG § 25.99, We agree.
Mimi.Stat. § 15.99, subd. 1, defines an
agency as a"deparhnent, ageney, boazd,
commisson, or other group in the execu-
tive branch of state government; a statn-
tory or home rule chazter city, county,
town...." Significantly, the portion of the
statute that deSnes a eommissnn as an
agency ]imits that deSnition to a coznmis-
sion within the eacecutive branch of state
governmen� The city planning commis-
sion was not acting as a statutory or home
rule city because the planning couunLssion
is mere�y a level of government witdiin the
eity's governmental structure. Moreover,
the planning commission's approval of a
zoning application is not the final decision
of the city. Although the Minneapolis city
ordinances give the planning commission
the authority to appmve zoning applica-
tions, Snal approval or denial of an app&ca-
tion does not oeeur until the city eouncil
has approved or denied the applieation
afrzr an appeaL M.C.O. § 525150. While
it is true that in some cases the deasion of
the planning commission will be Snal be-
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6 Minn. 676 NORTH WESTERN REPORI'ER, 2d SERIES
� -� �
cavse there is no ehallenge to its deeision,
if the decision is challenged, the applica-
tion is not finally approved unfa7 the ehal-
lenge is resolved by the city council.
I3] Thus, we conclude tl�at under the
appeals process established in Minne-
apolis, a zoning application is not appmved
or denied for purposes of Minn.Stat
§ 15.99 until the eity eouncil—not the
planning commission—has resolved all ap-
peals challenging the application. In addi-
tion, we find persuasive the MIA's argu-
ment that section 15.99 "establishes time
deadlines for local governments to take
action on zoning ¢pplic¢tions." Am. Taw-
er, L.P. v. City of Grccnt, 636 N.W2d 309,
312 (Minn2001) (emphasis added); Tollef-
san Dev., Ia2c. v. City of Edk River; 665
N.W2d 554, 559 (Mnm.App2003) (holding
that 60-day time period ran from date of
written amendment to the wning applictc-
tion ) (emphasis added), revizw denied
(Minn. Sep� ?A, 2003). By contrast, an
appeal from an adverse decision is not a
"request ... for a permit, license, or other
governmental approval of an action" as
required by section 15.99. Minn.Stat.
§ 15.99, subd. 2. An appeal seeks to re-
verse or overturn the approval of the re-
quest; it is not in itself a request for a
permit, license, or approval. Thus, no new
60-day time period is triggered.
Consequently, Smith's appeal was sub-
ject to the initial 60.day time limit trig-
gered by the MIA's submisson of its appli-
cation an July 23, 2002, and the city eouncil
was required to approve or deny the appli-
eation by September 23, 2002. Here,
Smith's appeal to the city council did not
result in an approval or denial of the
MIA's application within the reqvisite 60
days, and tlierefore, the MIA s appHcation
was automatically approved by operation
of Muin.Stat, § 15.99.
harsh, extraordinary remedy, especially
where, as in this case, the city must act
promptly affzr an internal administrat[ve
appeal. But as the MIA rightly observes,
if a city has an internal proeess that per-
mits appea]s, then it must structure its
appeal process in a roanner which permits
a decision by the city before the erpiration
of the deadline. The altemative is to risk
approval by operation of section 15.99.
Thus, if an internal administrative appeal
is filed on day 56, as was the case here, the
city can still engage in a thoughtfiil eonsid-
eration of the appeal simply by put{ing in
place a system that percnits city officials to
promptly extend the deadline an additional
60 days.
"[T]he underlying purpose of Minn.Stat.
§ 15.99 is to keep govemment agencies
from taldng too long in deciding issues
like the one in question." M¢nco of Fair-
m.ont, Inc. v. Tmun Bd of Rack Dedl
Tawnship, 5S3 N.W2d 293, 296 (Minn.
App.1998) (application for conditional use
pemut), re�niew denied (Minn. Oct. 20,
1998). Although automatic approval of a
permit application is an extraordinary
remedy, it is a remedy that has been
granted by the legislature "notwitlistand-
ing any other law to the contrary." Minn.
Sta� § 15.99, subd. 2. When a city has
failed to satisfy its cleaz requirements, the
remedy shall be granted N. Stat,es Paw-
er Co. v. City of Mendota Heights, 646
N.W2d 919, 925 (Minn.App2002), review
denied (Minn. Sept. 25, 2002?. According-
ly, the MIA's apglication was automatical-
ly approved by operation of Minn.Stat.
§ 15.99, and the district court erred in
characterizing Smith's appeal as a new
zoning applieation thereby pernritting a
new seetion 15.99 time period.
II
We recoo ;�e that automatic approval of Having determined that the MIA's atr
a pernut application may sometimes be a plieation vras approved by operation of
•
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MORENO v. CITY OF NIINNEAPOLIS Minn. 'j
Citeas6]6 N.W.2d t (Minn.APR ��1
Minn.Stat § 15.99, we turn to deciding
what is properly before this crourt for re-
view on appeal.
[4--6] On appeal from a quasi judiciai
decision of a governmental body, appel-
lants can challenge the deasion on the
grounds that it was ar6iLrary, oppressive,
unreasonable, and fraudulent, under an er-
roneous theory of law or without evidentia-
ry supporL Molnar u Courcty of Carver
Bd of Comm'rs, 568 I3.W2d 1TT, 181
(Minn.App.199'�; Honn v. City of Coon
R¢pids, 313 N.W2d 409, 416-17 (Minn.
1981). A decision is imreasonable, or azbi-
trary and caprieiovs when it is "based on
whim or ... devoid of arlieulated reasons."
Mamnnenga v. State Dep't of Human
Seros, 442 N.W2d 786, 7&9 (Minn.1989).
A court is obIigated fA affirm the decision
if the record shows the city engaged in
reasoned decision maidag. C¢8le Commu-
nications Bd u Na�West Cable Commu-
nieatians P'shiy, 356 N.W2d 658, 669
(Minn.1984).
But in rru,n I.ake Ass n u County of
Aitkin, we held that the eonnty board's
deeision on the neighbor's appeai was eom-
pelled by statute due to the count}�s fail-
ure to deny the application within the re-
quired 60 days. 612 N.W2d 177, 182
(Minn.App2000), reaifew denied (Minn.
Sept. 13, 2000). We explained that when
approvat of a zoninq applieation is com-
pelled by Minn.Sta� § 15.99, we cannot
then hold that the agency acted in an
otherwise atbitraxy or impmper fashion,
Id at 181. Our opinion in Gun Lake did
not address whether we could review chat-
lenges to a zoning application on the
grovnds that appmval of the application
was an error of law. But we aze persuad-
ed thaE the hoIding in Gu.n Lake is IogicaI-
ly e�tznded to challenges on the grounds
that apgravat of a wning apptieation was
an error of law. Thus, when approvat of a
zoning app�ication is statittorily wmpetted,
it cannot then be azgued that approvai by
the eity was an error of law
Here, appellants raise severat claims, all
of ahieh challenge the city's approvai of
the MIA's zoning agplication on the
grounds that approval o€ the appfieation
was arbitrary and capricious. Eut after
carefvlly reviewing the reeord, we are mn-
vinced that only two of appellants'
elaims—the par�ng esceptions and the
setback requirements—are pmperly re-
viewed under the arbitrary and rapriciovs
standazd Because we ha�e heid that the
NIIA's zo ninov appfication was appmved as
a result of the application of Minn.Stat
§ 25.99, we are likewise crompelled to hold
that apprwai of the application with the
pazldng and setbaek e�cceptions was not
azbitrary and eapricious, �u.n La.ke
Ass'n, 612 N.W2d at 1ffi.
Although not characterized as such by
appellants, their remaining elaims ehal-
lenge the approval of the applieation on
the grounds that the approvai was an er-
ror of Iaw. In aceordance witk our hold-
ing that when operation of Minn.Stat
§ 15.99 statutorily compeLs the approval of
a zoning application, appmval of that appli-
cation cannot be an error of law, we ate
compelled to eoneSude that the cit}�s ap-
proval of MIAs application was not an
error of ]aw.
DECISION
The district court erred in Snding that
the administrative appeai chaIlenging the
planning commission's approval of the
2. Appeltani's errar of law challenges include:
(I) the MIA's Eailure to include a11 of the
original PUD applicanis on its mning applica-
von in violation of M.C,O. § 527.50; (2) the
MIA's failure m submit a masier sign plan in
violation of M.C.O. § 527.70(a); (3? the MIA's
PUD amendment oniy has one use in vio(ation
of M.C,O. 5 520.160; (4) the city s authoriry
to grant exceptions to the PUD requiremenis
is pre-empted by staie statute; and (5) the city
lacked the autfiority w approve conditions or
excepROas tn tLe MTA's applicatiou.
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$ Minn. 676 NORTH WESTERN REPORTER, 2d SERIES
MIA's zoning application triggered a new
60-day time limit under Minn.Stat
§ 15.99. Thus, beeause the eity did not aet
on the application within 60 days of its
receipt of the appliption, the MIA's appli-
cation was automatically approved by op-
eration of Minn.Stat § 1a.99 (2002). Be-
cause the applieation was automatically
approved by operation of Minn.Stat
§ 15.99, the eity's appmval of the applica-
tion was not arbitrary, capricious, or an
error of law.
Affirmed as m�ed.
w
O SKFYNUMBE0.SKfEN
r
Leslie MAUDSLEY, Appellany
v .
Jonathan E. PEDERSON,
M.D., Respondent
No. A03-915.
Court of Appeals of Minnesota
March 16, 2004.
Background: Patient, who lost vision in
right eye due to infeetian following eye
surgexy, ffied medical-malpraetice action
against doetor. The Dish-ict Court, Henne-
pin County, Ann Leslie Alton, J, granted
doctos's motion to dismiss. Patient appeal-
ed.
Holdings: The Court of Appeals, Hudson,
J., held that
(1) trial court aeted within its discretion
when it heazd docto�'s untimely dispos-
itive motion to dismiss; -
(2) statute requuing plaintiff in medical-
malpractice action to file affidavit of
eapert re�iew is designed to eneourage
parties to hring motions to dismiss ear-
ly in the proceedings; and
(3) general statements oa causation in affi-
davit of e�ert review were insufficient
to satisfy strict standard for expert
affidavits in medical-malpraetice ae-
tions.
�:� �-.
1. Health o809
Absent abuse of diseretion, Court of
Appea7s arill not reverse district court's
di.�,,,iasal of inedical malpractice suit pur
suant to statute requiruig plaintiff to Sle
a�davit of expert re�iew. M.S.A.
§ 145.682.
2. Health ca809
7,Yia1 court acted within its discretion
when it heard doctor's dispositive motion
to dismiss medical malpraetice action for
patient's violation of statute gwerning affi-
davits of expert review in medical malprae-
tice aetions, even though motion was un-
timefy under rules of general prectice and
under rnurt's seheduling order; nothing in
statute governing affidavit of expert re-
view prevented court from hearing untime-
ly motion, court had discretion to refuse to
enforce its scheduling order, and time lim-
its of rules of general practice could be
readily modified by court. NLSA
§ 145.668`LL; 51 M.S.A. General Rules of
Praetice, Rule 11a.03.
3. Pretrial Procedure a747.1
Whether or not to enforce its own
scheduling order is clearly within the dis-
trict court's discretion.
4. Health <r 804
Primary purpose of statute requiring
plaintiff in medical malpractiee action to
file a6adavit of expert review is to elimi-
nate nuisance malpractice suits. M.S.A.
$ 145.682.
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Ms. Wendy Lane, Zoning Administrator
City of Saint Paul Office of LIEP
350 Saint Peter Sh�eet, Suite 300
Saint Paul, MN 55102
Re: 870 Cmnd Avenue
Dear Wendy:
We would like your input on a proposed lease transacrion involving the Boimd To Be Read Bookstore
(`BTBR") space at the above �roper[y. BTBR has been approached by another party that wishes to take
over the BTBR lease. The proposed assignment would involve the following changes to the BTBR
premises:
1. The use of the premises would change from a retail bookstore and accessory uses to a retai]
lifestyle store with accessory uses. The lifestyle store would sell personal health, wellness, and enhanced
living products and services. These would include instructional materials in audio, video, computer-
software, and written formats; personal heazt elecironics such as heart monitors, blood pressise, insulin,
respiratory, and otfier measurement devices; fimess and exercise aids and equipment; relaxation products
such as massagers, aromatherapy, and other homeopathic remedies and spa treatments; personai grooming
aids such as lotions, fragrances, cosmetics, upscale hair care and sryling products; and medical equipment
such as adjustable motorized beds, chairs, carts, walkers, and oxygen delivery; prepackaged nutrifional
products and supplements. Services would include exercise and relasarion services and classes such as
yoga and pilates, spa and salon treahnents such as naiis, facials, sidn treatments, and body massages and
azomatherapy.
2. The existing coffee shop would be retained. Pazt of the retail space would be replaced by a
pharmacy totaling 405 square feet, which woutd presumably have the same pazking count as retail space.
The existing children's reading area and puppet stage would be replaced with a storage room totalmg 808
squaze feet (which could be made available for community events) and three other rooms totaling 461
square feet wouid be created for equipment and storage purposes. These storage and equipment rooms
totaling 1,269 square feet would presumably have the same parking count as storage space. Otherwise,
the 14,230 squaze feet of street level space would be substantially similaz to the present use of the
premises.
3. The 5,900 square foot lower or basement leveI configuration of the premises would continue to be
used for storage and accessory pwposes. Portions of the open azea would be used for sitting, yoga, and
pilates. Men's and women's locker rooms totaling 955 square feet would be created, which presumably
would have the same pazldng count as storage space. Several small spa treahnent rooms totaling 938
squaze feet and two manicure and pedicure rooms totaling 671 square feet would also be created; these
1,609 square feet would presumably have the same pazldng oount as retail space. In other respects, the
basement level would be subsYanfially similaz to the present use of the premises.
Minnesota Statutes 2004, 15.99
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Minnesota Statutes 2��4 Table of Chapters
Table of contents for Chapter 15
15.99 Ti.me deadline For agency action.
�
Subdivision l. Definitions. (a) For purposes of this
section, the following terms shall have the meanings given.
(b) "Agency" means a department, agency, board, commission,
or other group in the executive branch of state government; a
statutory or home rule charter city, county, town, or school
district; any metropolitan agency or tegional entity; and any
other political subdivision of the state.
(c} "Request" means a written application related to
zoning, septic systems, or the expansion of the metropolitan
urban service area, for a permit, license, or other governmental
approval of an action. A request must be submitted in writing
to the aqency on an application form provided by the agency, if
one exists. The agency may reject as incomplete a request not
on a form of the agency if the request does not include
information required by the agency. A reguest not on a£orm of
the agency must clearly identify on the first page the specific
permit, license, or other governmental approval being sought.
No request shall be deemed made if not in compliance with this
paragraph.
(d) "Applicant" means a person submitting a request under
this section. An applicant may desiqnate a person to act on the
applicant's behalf regarding a request under this section and
any action taken by or notice given to tne applicant's designee
related to the request shall be deemed taken by or given to the
applicant.
Subd. 2. Deadline Eor response. (a) Except as
otherwise provided in this section� section 462.358, subdivision
3b, or chapter 505, and notwithstanding any other 1aw to the
contrary, an agency must approve or deny within 60 days a
written request relating to zoning, septic systems, or expansion
of the metropolitan urban service area for a permit, license, or
other governmental approval of an action. Failure of an agency
to deny a request within 60 days is approval of the request. If
an agency denies the request, it must state in writing the
reasons for the denial at the time that it denies the request.
(b) When a vote on a resolution or properly made motion to
approve a request fails for any reason, the failure shall
constitute a denial of the request provided that those voting
against the motion state on the record the reasons why they
oppose the request. A denial of a request because of a failure
to approve a resolution or motion does not preclude an immediate
submission of a same or similar request.
� (c) Except as provided in paragraph (b), if an agency,
other than a multimember governing body, denies the request, it
must state in writing the reasons foz the denial at the time
that it denies the request. Tf a multimember governing body
Page i of 3
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http://www.revisor.leg.state.xnn.us/stats/15(99.html 4(2/2005
Minnesota Statutes 2004, 15.99
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denies a request, it must state the reasons for denial on t�ie'� '- '
record and provide the appl.icant in writing a statement of the
reasons for the denial. If the written statement is not adopted
at the same time as the denial, it must be adopted at the next
meeting following the denial o£ the request but before the
expiration of the time allowed for making a decision under this
section. The written statement must be consistent with the
reasons stated in the record at the time of the denial. The
written statement must be provided to the applicant upon
adoption.
Subd. 3. P.pplication; extensions. {a) The time limit
in subdivision 2 begins upon the agency's receipt of a written
request containing all information required by law or by a
previously adopted rule, ordinance, or policy of the agency,
incZuding the applicable application fee. Tf an agency receives
a written request that does not contain a11 required
information, the 60-day limit starts over only if the agency
sends written notice within IS business days of receipt of the
request telling the requester what information is missing.
(b} If a request relating to zoning, septic systems, or
expansion af the metropolitan urban service area requires the
approval of more than one state agency in the executive branch,
the 60-day period in subdivision 2 beqins to run for aIl
executive branch agencies on the day a request containing all
required information is received by one state agency. The
agency receiving the request must forward copies to other state
agencies whose approval is required.
(c) An agency response meets the 60-day time limit i€ the
agency can document that the response was sent within 60 days of
receipt of the written request.
(d) The time limit in subdivision 2 is extended if a state
statute, federal law, or court order requires a process to occur
before the agency acts on the request, and the time periods
prescribed in the state statute, federal law, or court order
make it impossible to act on the request within 60 days. In
cases described in this paragraph, the deadline is extended to
60 days after completion o£ the last process required in the
applicable statute, 1aw, or order. Final approval of an agency
receiving a request is not considered a process for purposes of
this paragraph.
(ej The time limit in subdivision 2 is extended if: (1) a
request submitted to a state agency reguires prior approval of a
federal agency; or (2) an application submitted to a city,
county, town, school district, metropolitan or regional entity,
or other political subdivision requires prior approval of a
state or federal agency. In cases described in this paragraph,
the deadline foz agency action is extended to 60 days after the
reguired prior approval is granted.
(f) An agency may extend the time limit in subdivision 2
before the end of the initial 60-day period by providing written
notice of the extension to the applicant. The notification must
state the reasons for the extension and its anticipated length,
which may not exceed 60 days unless approved by the applicant.
Page 2 of 3
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Minnesota Stafutes 2004, 15.99
o ��' L}:)�j
(g} An applicant may by written notice to the agency
request an extension of the time limit under this section.
HIST: 1995 c 248 art 18 s 1; 1996 c 283 s 1; 2003 c 41 s 1
Copyriqht 2004 by the Office of Revisor of Statutes, State of Minnesota.
http://www.revisor.leg.state.mn.us/stats/15/99.hhn1
Page 3 of 3
9/2/2005
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MORENO v, C1TY OF MINNEAPOLIS Minn. 1
Citeea6]61�*.W1d t (MivnApp. 2004)
Donna MORENO, et aL, Appellants,
Respondents,
v.
CITY OF MIIQNEAPOLIS, Respondent,
v.
Minneapolis Institute of Arts, third-
party intervenor, Respondent,
Appellank
Nos. A03-837, A03-943.
if not timely denied, 6e deemed appmved,
and thus application opponenYs appeal to
city councl from commission's approvat of
zoning application did not ttigger new 60-
day time period under statute; hence, be-
cause city councl did not act on appeal
within uritial 6� day period aftzr submis-
sion, application was deemed approved.
M.S.A. § 15.99.
See pubGeation Words and Phrases
for other judicia( consh and
definitions.
Court of Appeals of Minnesota 2. Zoning and Planuing a439.5
March 9, 2004.
Background: Art museum applied for
amendment to its planned unit develop-
ment (PUD) to add a new wing to muse-
um. The city plaiuzing comm'vssion ag-
proved application, Neighboxs appealed.
The city councH denied appeal and ap-
proved application. Neighbors appealed
seeldng declaratory and injunctive relie£
Museum intervened and cross-claimed
against city. The Hennepin County BistricE
Court, E. Anne Meginsey, J., g�anted
eity's motion for snmmary jndgment, but
denied museum's cross-claim. Neighbors
appealed. Museum Sled notice of review
and direct appeal.
Holdings: The Court of Appeals, Hudson,
J., heid that
(1)
(2)
tiecause city couneil did not act on
appeal within initia160 day period after
submissioa, app&cation was deemed
approved,and
statutorily�ompelled approval of appli-
cation was not arbitrary, capricious, or
an error of ]aw,
Affusned as modi&ed.
1. Zoning and Planning �439.5
City planning commission was not an
"agency" within meaning of statute requir-
ing that zoning appHcations be approved or
denied within 60 days of submission, and,
When the city faiLs to adhere to the
time ]�it imposed by statute requiring
that wning app&cations be approved or
denied within 60 days, the result must be
that the application was statutorily ap-
prnved as a matter of law. M.S.A.
§ 15.99.
3. Zoning and Planning «439.5
Under the appeats pmeess estab]ished
in Mtnneapo7is, a zoning agplication is not
approved or denied for purposes of statute
requiring that zoning applications be ap-
pmved or denied within fi0 days, or if the
deadline is properly extended by the agen-
cy, within 120 days, until the city muncil—
not the planning commission—has resolved
all appeals ehallenging the application.
4. Administrative Law and Procedure
�763, 758, 796
On appeai firom a quasi-judiciai deci-
sion of a govermnental body, appella.nts
ean challenge the deeision on the grounds
that it was arbitrary, oppressive, unrea-
sonable, and fraudulent, under an errone-
ous theory of ]aw or without evidentiary
suppor�
5. Zoning and Planning er�605
A court is obligated to affnm the deci-
sion regarding a zoning application if the
record shows the city engaged in reasoned
deeision maldng.
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Page 1 of 2
From: lody StaMey [mailto:jody@grandave.comj
Sen� Friday, Juy 22, 2005 1:50 PM
To: Jody@grandave.com
Subject: SpEAK UP!
Speak u�
There is a new business coming on the avenue who will need more parlcing spaces due to the
use of the fheir occupancies. Rccording to ciiy taw, parking spaces are defermined by ffie
square footage of use. This r+ew business wili be exceeding the amount of parking spaces
avaiiable i� their area by #uming their (ower bathrooms into pubiic use_ This wilt aitow them to
use the rule of five_ �
The rule of five states:
Sec. 63.204. Change in use wrthin a structure.
When any uses which exisf within a structure cfiange to a new use, the following rules shall
apply:
{a} Change in use requiring additional parking. Except when comrrierciai uses are established
in the BC district or when paricing is specifically required for a condfional use permit, when any
existing uses change to new uses which require six (6) or more additiona! off-street parkirtg
spaces than the existing uses, the six (6) or more additionat spaces shalf be provided along
with the spaces already provided. New uses which reQuire five (5} or fewer spaces than the
7/25/2005
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NL.27'2005 14:54 651-699-6501
Summtt Httl Neighbors
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The Summit NIII /�socia�{on (SNAj Dlsi�ict 1 Q P{ann{n9 Council, on the
recommenda�on of its Zontn� and lcnd Use Committee, after a
pubitc headng, has vcted to appeat the d�clslon of Cffy cf St Paut
staif to allcw EQ tffe to conshuct addttlonat tpa �pace ln the
basemant storo�e crea ot tha former 8aund Ta �e Read Booksto�e
wH�hovt fhe needed addttio�ol parktng. Th�e is no firrthe�:pc�c�
availoble in ihe pa�ktn� ramp.
Parking :tudies show a shcrifall af 981 space; horn Mllto� to Oatdand
stre�h. Thif particular intersectton la ane ot ihe worat In the Summit H(II
area fa� trai�c cnd parking. EQ Life, a divfston cf 6asfi suy, t:
expecting 4�0 cu�om��: on an average Sotu�day.
Ptan b aflend thi: heorinp before the Board of Zonin� appe�al� at
3 pm, Mondoy, August 1, 2005 in Room 3SOS
(�ea� Clfy Councii Chambersj Clty Hall.
You may came and te�tN'y 1� pe�son. Or you may cvii, write or st�ral!
your concams to the Aoard ot Zaning AppeQis bofore noon Manday
Auguat 1�t viq:
Mr. John Hardwlck,
Cornmerce BIdB., 2�d itoar
8 East 4�" Strset, Sf. Pavl. MN 5510�
,�ohn.hardwtckQci.stpaul.mn.us
bS1-266-9082
VILI,AGSA COHMUNICATZON �0077 P.001/001
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MEMORANDUM
TO: The S� Paul City Council
FROM: EQ-Life
RE: Appeal of Board of Znning Appeals Resolution dated August 1, 2005
DATE: September 2, 2005
EQ-Life respectfully submits the following memorandum in support of its appeal to the
City Council of the August 1, 2005 $oard of Zoning Appeals Resolution in File No. OS-128190
(the "Resolution"). The Resolution, contrary to the recommendafion of the City Zoning
Administration staff (the "Zoning Administrator") and the concerns of the Ciry Attorney's office,
granted an appeal denying EQ-Life's proposed use Of existing space at 870 Grand Avenue. In
adopting the Resolution, the Board of Zoning Appeals (`BZA") made numerous procedural,
factual, and legal errors. Most notably, the Resolution ignores the plain language of the Saint
Paul Zoning Code (the "Zoxung Code") and departs frorn past City practice in a manner that is
unlawful and will have a substantial adverse impact o.n businesses throughout the City of Saint
Paul. For these and other reasons, the Resolution must be overlurned.
MP3 201A8977.2
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EXECUTIVE SUMMARY
EQ-Life's proposed use must be approved by operation of state law.
Secrion 15.99 of the Miunesota Statutes requires that the City take final action on a
zoning request within 60 days. See Tab 1. A recent court case has clarified that such final action
must include resolution of all appeals of a zoning request. See Tab 2. By any measure, more
than 60 days haue passed since EQ-Life's zoning request; in fact, the appeal is still ongoing,
even though the initial request was made in April 2005. See Tab 3. Accordingly, EQ-Life's
request must be deemed approved by operation of state statute.
The Resolution is unlawful and produces absnrd results.
The Resolution seriously misinterprets the Zoning Code in two respects:
First, the BZA held that commercial space within a multi-use retail center must be
sepazated and independently designated as "health spa" for pazking purposes. This holding is
contrary to the Zoning Code's express parlong requirements for multi-use retail centers and the
City's past practice with respect to such buildings. See City Zoning Administrator's Staff
Report, Tab 4. If allowed to stand, trus precedent would require that the pazking requirements
for every multi-use zetail center in the City be calculated in accordance with the varyiug and
ever-changing uses of the tenant spaces. Such a result is wholly impractical and coxnxnercially
infeasible.
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Second, the Resolution provides that an otherwise lawful use of a property may be
prohibited if it confiicts with the original site plan. As an initial matter, this holding was •
unlawfully included in the Resolurion after the fact, as it was not among the bases stated by the
BZA for its decision at the hearing. See Official BZA Hearing Minutes, Tab 5. More
importantly, this holding is contrary to the Zoning Code and the City's past practice. The Zoning
Code clearly permits building owners to change the use of their properties from that in the
original site plan; the City processes and approves such changes in use on a regular basis, To
now hold that building owners or tenants are permanently "locked-in" to the uses set forth in a
site pIan approval is completely arbitrary, unreasonable, and unlawfully deprives existing
property owners of substantial property value.
The Resolution is procedurally defective.
The BZA decision is also the product of a procedurally defective hearing. The BZA
ignored facts in the record and limited discussion. Moreover, the BZA ctearly based its decision
on evidence of general Traffic and pariang concems along Grand Avenue, which it admitted into
the record. The BZA has no authority to consider or address general parking concems or
otherwise modify City policy in that regard; such decisions aze the exclusive province of the City
Council's legislative authority.
EQ-Life has demonstrated that it will have a positive impact on parkittg and traffic.
Even if one were to ignore the law applicable to this dispute, EQ-Life has demonstrated
that, as a practical matter, its use of the space at 870 Grand Avenue will unprove existing
parking and traffic issues. All relevant data shows that EQ-Life's store will generate less traffic
than the previous tenant. Moreover, EQ-Life has provided a proposed use and compromise �
solution that wiII actuaily improve the pazking situation at the building. See Tab 6.
MP3 20148977.2 Z