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205181rin cil File No. 205181 —By Frank L.' OR. TO CITY �CL�RK. f -• Tv NO. CII 1 OF solved, That Toke and. Pella aiCIL lllJJJ ��• ership, being dissatisfied and ag- grieved OF THed by the decision of the Cum- oner of Parks and Recreation andc Buildings construing and apply_ COUNCIL RESOLUTIOcertain provisions of the zoning , Chapters 60 to 64, inclusive, of PRESENTED BY eglslafive Code of the City of COMMISSIONER ///111 Paul in respect of the use of oliowfn� described plot of land P7i: virr3tilirr °it3�yR ,te limits RESOLVED, that Toke and Pella, a partnership, being dissatisfied and aggrieved by the decision of the Com- missioner of Parks and Recreation and Public Buildings construing and applying certain provisions of the Zoning Code, Chapters 60 to 64, inclusive, of the Legislative Code of the City of Saint Paul, in respect of the use of the following described plot of land situated within the corporate limits of the City of Saint Paul, in a single ownership and divided by the common boundary line of an "A" Residence District and a Commercial District established) by said Zoning Code, to -wit: "All of Lots 1 and 2, and except the south 100 feet, Lots 11 and 12, Block 4, Lake Phalen Addition No. 2." has appealed from said decision of said Commissioner to this Council, under and pursuant to Section 6+.03 of said Zoning-Code, and thereby has sought the action of this Coun- cil under Paragraphs (a) and (i) of said Section 6+.03 determining and varying the provisions of said Zoning Cide in harmony with the general intent and purpose of the same COUNCILMEN Adopted by the Council 19— Yeas Nays DeCourcy Holland Loss Mortinson Peterson Rosen Mr. President, Vavoulis Tn Favor A gainst Approved 19— Mayor ORIGINAL TO CITY oCLER K+ ��9�� ('�� r CITY OF ST. PAUL COUNCIL NOS' (,�c7(+ • OFFICE OF THE CITY CLERK COUNCIL RESOLUTION — GENERAL FORM PRESENTED BY �� r COMMISSIONS DATE necessary and permissible therefor and granting: (1) A permit for the extension to the entire subject plot, -of a Commercial- District -restaurant building --and business .use author - ized'on the south 20�feet of the same zoned without qualification in a Commercial District, such plot being in a single ownership and divided by a common Commercial District and "A" Residence District boundary line; and (2) Additional relief, necessary for the accommodation of such extension in respect ,of a part of said plot, the north 70 feet of the south g0. the east 50 feet of the same classified in a Commercial District by virtue of a reclassification provided by an amendatory ordinance which further amended said Zoning Code by inserting therein pro- visions especially applicable to said part of said plot and restricting the use of the same to the single Commercial District use in- volving no more than an off - street motor vehicle parking facility contemplated to be operated as an extension of the prior and then existing restaurant building and business use of the south 20Xlfeet of said plot and lWhich provisions required the delivery of the subsisting negative easement imposing the Same use restriction on said part of-said plot, held by.the City of Saint Paul; and pursuant thereto and in compliance with applicable pro- visions of said Section 64.03, said Council having duly submitted said 4ppeal to the Board of Zoning and said Board COUNCILMEN Yeas Nays DeCourcy Holland Loss Mortinson Peterson Rosen Mr. President, Vavoulis ant 6-61 Tn Favor A gainst Adopted by the Council 19— Approved 19— Mayor ORIGINAL TO CITY'CLERK ,r r PRESENTED BY COMMISSION CITY OF ST. PAUL OFFICE OF THE CITY CLERK COUNCIL RESOLUTION - GENERAL FORM 3 FILE NO. NO. 2�08j1 having duly heard said Appellant and transmitted its written report and recommendations thereon to this Council and this Council having duly fixed the time for a public hearing upon said Appeal and having caused due notice by mail and publica- tion stating the time, place, and purpose of such public hearing to have been given, after consideration of said Board's said report and recommendations and after such pub- lic hearing upon said Appeal this Council, being fully advised in_the premises, does hereby find and determine that the instant case in regard to the subject plot of land, its situation, diverse-classification., and present and potential development, presents a situation involving practical difficulties and peculiar hardships in the way of carrying out the strict letter of the provisions ofthe Zoning Code and that the provisions of the Zoning Code are determined and varied to permit the granting of the relief sought by said Appeal, so that the public health, safety and general welfare may be secured and substantial justice done. That, accordingly, this Council does hereby determine and vary the application of the provisions of said Zoning Code, to the COUNCILMEN Yeas Nays DeCourcy Holland Loss Mortinson Peterson Rosen Mr. President, Vavoulis SM "j �� In Favor Against Adopted by the Council 19— Approved 19— Mayor ORIGINAL TO CITY`GLERK 201$1 CITY OF ST. PAUL COUNCIL NO. OFFICE OF THE CITY CLERK FILE OUNCIL RESOLUTION - GENERAL FORM PRESENTED-BY COMMISSIONE R- 1 DATE extent necessary therefor, in harmony with the general intent and purpose of the same and does hereby grant the following relief sought by said Appeal: (1) A permit for the extension to the -entire subject plot, of a Commercial District restaurant building and business use author- ized on the south 20.1 feet of the same zoned without qualification in a Commercial District, such plot being in a single ownership and j divided by a common Commercial District and "A" Residence District boundary line; (2) Additional relief, necessary for the accommodation of such extension in respect of a part of said plot, the north 70 feet of the south 9t�1 �fezt of the east 50 feet of the same classified in a Commercial District by virtue of a reclassification provided by an amendatory ordinance which further amended said Zoning Code by inserting therein pro- visions especially applicable to said part of said plot and restricting the use of the same to the single Commercial District use-in- volving no more than an off- street'motor -whicle parking facility contemplated to be operated as an extension of the prior and then existing restaurant building and business use of the south 20.1 feet of said plot and which provisions required the delivery of the subsisting negative easement imposing the same use restriction on said part of said plot, held by the City of Saint Paul; and (3) Additional relief for the amendment of the document evidencing said subsisting negative easement so that thereby the subject North 70 feet COUNCILMEN Adopted by the Council 19— Yeas Nays DeCourcy Holland Approved 19— Loss Tn Favor Mortinson Peterson Mayor Rosen A gainst Mr. President, Vavoulis 5M fi-(il ORIGINAL TO CITY`�LERIF 0 18 CITY OF ST. PAUL COUNCIL NO. OFFICE OF THE CITY CLERK COUNCIL RESOLUTION — GENERAL FORM PRESENTED BY V L' DATE COMMISSIONER �( of the South 90..Xf(�At of the East 50 feet of said plot classified, as aforesaid, in a Commercial District, under said Zoning Code shall be restricted in regard to the use of the same to "A" Residence District, "B" Residence District and "C" Residence District uses and to the single Commercial District use involving no more than a Commercial District restaurant building and business use in lieu of the aforesaid sub- sisting restricted Commercial District use originally imposed thereon, as aforesaid. RESOLVED FURTHER, That the aforesaid relief is granted pursuant to said Appeal and, among other things, this Resolution shall be conclusive evidence ofthB granting of said relief and authority for the aforesaid amendment of said document covering .x. said negative easement grant. RESOLVED FURTHER, That this Council is cognizant-of the intention of said Appellant to remove therefrom the existing restaurant building -b:a- located on the South 20.1 feet of the subject plot and to effect the replacement of the same by a new restaurant building to be located on the west half or partially on the west half and partially on the east half of the subject plot; that no such replacement shall be erected on said premises except COUNCILMEN Yeas Nays DeCourcy Holland Loss Mortinson Peterson Rosen Mr. President, Vavoulis 5 M 6-61 In Favor A gainst Adopted by the Counci Approved 19— Mayor 1 OR`¢INAL TO CITY - I;L'Ek Kl PRESENTED BY COMMISSIONER CITY OF ST. PAUL OFFICE OF THE CITY CLERK ,COUNCIL RESOLUTION — GENERAL FORM FOE . NCIL NO 1. 20 18 in accordance with plans and specifications approved by the I City Architect and which, among other things shall provide for an exterior design of such replacement structure conformable in general appearance to that of the adjoining residential structure, to the extent that such conformity shall be reasonably practicable considering the diverse uses of such structures, and for a setback line thereof, in relation to the south line of Nevada Avenue, upon which said plot abuts, equivalent of that which attaches to all other structures within the same block and abutting on said Nevada Avenue; and that in the event said Appellant shall be aggrieved by any decision of said City Architect thereon, such decision may be subject to review by this Council upon seasonable request for the same. COUNCILMEN Yeas Nays DeCourcy Holland Loss Mortinson – g-etersen Rosen Mr. President, Vavoulis S M "I Adopted by the Council 1981 it 19- pprove R 1 .9; 19— Tn Favor Y Mayor Against _ _ao_Jq�l ZUBLISHED . i DONALD L. LAIS ROBERT E. FARICY RICHARD J. BATTIS THEODORE J. COLLINS GERALD C. RUMMEL WILTON E. GERVAIS DANIEL A. FG AS JOHN J. Mc NEIL ASSISTANTS NEIL P. CONVERY INVESTIGATOR I CITY OF SAINT PAUL LEGAL DEPARTMENT ROBERT J. WORDS CORPORATION COUNSEL November 20, 1961 To the-Honorable Council of the City of Saint Paul: J`r/ LOUIS P. SHEAHAN DIRECTOR OF LAW ROBERT E. O'CONNELL SPECIAL ASSISTANT This opinion pertains to the Appeal of Toke and Pella, a partnership, pending before the Council, and perfected under and pursuant to Section 64.03 of the Zoning Code. Said Appellants, thereby, seek,Councilmanic action under paragraphs (a) and (i), respectively, of said Section 61+.03, determining and varying the provisions of said Zoning Code in harmony with the general intent and purpose of the same as shall be necessary therefor and granting: It (1) A permit for the extension to the entire subject plot, of a Commercial District restaurant building and business use authorized on the south 20 feet of the same zoned without qualification in a Commercial District, such plot being in a single ownership and divided by a common'-` Commercial District and "A" Residence District boundary line; and (2) Additional relief, necessary for the accommo- dation of such extension in respect of a part of said plot, the north 70 feet of the south 90 feet of the east 50 feet of the same classified in a Commercial District by virtue of a reclassification provided by an amendatory ordinance which further amended said Zoning Code by insert- ing therein provisions especially applicable to said part of said plot and restricting the use of the same to the single Commercial District use involving no more than an off - street motor vehicle parking facility contemplated to be operated as an extension of the prior and then existing restaurant building and business use of the south 20 feet of said plot and which provisions required the delivery of the subsisting negative easement imposing the same use restriction on said part of said plot, held by the City of Saint Paul. The following excerpt from the pertinent report Board of Zoning accurately describes the subject plot and salient facts concerning the history of the several zoning classifications: of the se- To the Council 1 -2- November 20, 1961 "This is in the matter of the appeal of Toke and Pella to extend an existing commercial zone use, and to vacate the negative easement presently imposed on-.a part of this commercial zone. The property under consideration is located at the southwest corner of Arcade Street and Nevada Avenue, and is described as all of Lots 1-and 2, and=etcept the south 100 feet, Lots 11 and 12, Block 4, Lake Phalen Addition No. 2. "There are four (4) platted lots involved in this matter. The north 20.1 feet of Lots 11 and 12, which is designated as area 'At on the attached map, was rezoned to a commercial classification on September 7, 1950. The southerly 70 feet of Lot 1, which is designated as area IBI on the attached map was rezoned to a commercial classification on September 6, 1958. In granting this latter rezoning, the City Council attached a negative easement restrict- ing the commercial use of this property for off - street parking purposes. "The property under consideration in its entirety consists of a 100 foot frontage along Nevada Avenue and 140.2 feet frontage along Arcade Street, resulting in an area of 14,020 square feet. The applicant desires to vacate the negative easement on that por- tion of Lot 1 (area IBI), and extend the existing commercial uses situated on Areas 'At and IBI to the remaining part of Lot 1 and all of Lot 2.11 Appellants.-in terms, by the Notice of Appeal in this matter, sought the aforesaid permit for the extension of such Commercial District restaurant building and business use to the entire plot and the vacation of said negative easement. Appellantsi Counsel has tempered such Notice of Appeal by an express statement that Appellantp thereby seek no more than said permit for such Commercial District restaurant building and business use extension to the entire plot and the aforesaid necessary supplemental relief in the nature of Councilmanic action determining and varying the aforesaid provisions of said Zoning Code and of said negative easement especially applicable to said part of said plot for the restriction of the Commercial District use of the same to off - street motor vehicle parking. The precise question submitted by your Honorable Body for legal opinion pertinent to said Appeal, reads as follows: F� To the Council -3- November 20, 1961 "Whether or not the negative easement presently imposed on part of this commercial property can be released by vote of the Council ?" The question, for this opinion, might better be stated as follows: "Whether or not, upon said Appeal, under said Section 64.03 of said Zoning Code, the Council is empowered to vary said restrictive provisions of said Zoning Code applicable only to said north 70 feet of the south 90 feet of the east 50 feet of the subject plot and corresponding restrictive provisions of said negative easement grant whereby the use of said portion of said plot is limited to that for the accommodation of an off - street parking facility ?" Said Section 64.03 provides that any person dissatisfied with, the decision or application of the provisions of the Zoning Gode by the Commissioner of Parks and Recreation and Public Buildings may appeal to the Council by filing notice of appeal with the City Clerk and that after reference of the same to the Board of Zoning and the performance of other procedural prerequisites involving notice .and hearing thereon and consideration of the recommendation of said Board, the Council may in a specific case, by resolution passed by a majority vote, determine and vary the application of the provisions of the Zoning Gode in harmony with the general intent and purpose of the same as follows: "a. Powers of Board. Where a use district boundary line divides a lot in .a single ownership permit a use authorized -on either portion of such lot to extend to the entire lot. "i. Vary arty provision of the Zoning Lode in harmony with its general purpose and intent, where there are practical difficulties or peculiar hardships in the way of carrying out the strict letter of the provisions of this ordinance, so that the public health, safety, and general welfare may be secured and sub- stantial justice done, provided that a change in the boundary of any district except as per- mitted in this section or a modification of the height limits or buildings intended to increase said limits shall not be construed as being modifications permitted by this section." To the Council -4- November 20, 1961 Appellants' Counsel has stated that Appellants' Appeal is predicated upon the aforesaid provisions of said Section 64.03. The said Section 64.03 provides for Councilmanic action granting relief upon any such Appeal, "by resolution passed by a majority vote." The Minnesota Supreme Court has ruled that a resolution bf' a municipal governing body passed with all the formality of an ordinance, is equally efficacious for the purpose of an authorized decision. In re Steenerson v. Fontaine, 106 Minn. 225, 227, 228, the Supreme Court said: "That the city adopted a resolution, instead _ of enacting an ordinance, in no wise impairs the legal effect of its action. Where, as here, the resolution is passed with all the formality of an ordinance, it thereby becomes a legislative act, and it is immaterial whether it be called an ordinance or a resolution. McQui7:lih�xMun. Ord. P. 61 S. 2. 'Where a charter commits the decision of the matter to the council' ' and is silent as to the mode * * * the decision may be evidenced. by resolution,' and need not necessarily be an ordinance. * * * A resolution has ordinarily the same effect as an ordinance, as both are legis- lative acts. * * * " In re State Ex Rel. Madsen v. Houghton, 182 Minn. 77, 83, the Supreme Court said: "A careful reading of the whole act requires the conclusion that the council in proceeding by resolution (if either a. resolution or ordinance was necessary) acted well within the powers conferred upon it. Proceeding in that way was as effective as if by ordinance - an ordinance would accomplish no more than was accomplished by the adoption of the resolution. All rights of interested parties would be equally protected in either way. An ordinance was not necessary." In re State Ex Rel. Child v. City of Waseca, 195 Minn.., 266, 269, the Supreme Court said: "A resolution passed with the same formalities rewired for enactment of an ordinance may be held to have the same force as an ordinance." To the Council -5- November 20, 1961 Ordinance No. 11316, approved September 2, 1955, was the aforesaid amendatory ordinance which amended said Zoning Code so that thereunder said hereinabove described part of said plot was reclassified to its present zoning status, i. e., Commercial District, and the afore- said provisions especially applicable to the same were inserted in said Zoning Code restricting the same as aforesaid to said single Commercial District use and requiring such corresponding restriction under said negative easement. The said amendatory ordinance, among other provisions, in respect of its restrictive use provisions, contained language to the effect that the same were subject to further reclassification of the affected area. Said language was intended as an express reservation for such further reclassification in and by appropriate proceedings. The said Ordinance No. 11316 operated upon and amended said Zoning Code and the provisions of the same in respect of reclassification of said part of said plot to Commercial District and for such restricted Commercial District use of the subject area and negative easement became and remain provisions of said Zoning Code susceptible to determination and variation in harmony with the general intent and purpose of said Zoning Code, by the Council, by its Resolution, under and within the purview of said Section 64.03. The provisions incorporated in said Zoning Code especially restrictive of the Commercial District use of the subject area and in the nature of requirements for said negative easement of the same restrictive import, consistently with the Commercial District classification of the same, lawfully might have specified the Commercial District use for which the permit is presently sought by the instant Appeal, instead of that thereby specified as the single Commercial District use permissible. Under paragraph (i) of said Section 64.03, the Council is authorized to vary any provision of the Zoning Code in harmony with its general purpose and intent where there are practical difficulties or peculiar hardships in the way of carrying out the strict letter of the provisions of the same, so that the public health, safety, and general welfare may be secured and substantial justice done. The foregoing portion of this paragraph is subject to the proviso of said paragraph (i) which reads as follows; "*** provided that a change in the boundary of any district except as permitted in this section or a modification of the height limits or buildings intended to increase said limits shall not be construed as being modifications permitted by this section." The Council is empowered by said Section 64.03 to grant the aforesaid relief presently sought by Appellants. The provision for such grant may be by Resolution granting a permit for the extension of the Commercial District restaurant building and business use to the entire plot and for the varying of the restrictive provisions of the Zoning Code and of the negative Leasement, aforesaid, especially applicable to the subject part of said plot hereinabove described To the Council -6- November 20, 1961 so that the especial restriction applicable thereto shall be that Commercial District use which shall include no more than-the erection and maintenance thereon of a restaurant building and business. The aforesaid restrictive provisions of the Zoning Code and the requirements of the same for such negative easement stand as other provisions of said Zoning Code.subject to determination and variation by the Council, upon a proper appeal under said Section 61.x.03. The variation of the especial restrictive provisions affecting said part of the plot, as sought by Appellants would provide for an ordinary Commercial District use. The following are pertinent excerpts from Supreme Court decisions: ":'variance' is a departure from the letter, but not the spirit of a zoning statute, and a rezoning may not be accomplished under guise of the grant of a variance. Richman v. Philadelphia Zoning Bd. of Adjustment, 137 A. 2d 250, 2839 391 Pa. 254• "A 'variance' is a relaxation of general rule of the ordinance to alleviate conditions peculiar to particular property, and thus to permit a use to which it is adapted and avoid undue invasion of right of private property by compelling conformance to unsuitable permissible use, a burden upon individual landowner that would be disproportionate to common need. Whitehead v. Zonirig Bd. of Adjustment of Town of Kearny, 1" A. 2d 273, 278, 51 N. J. Super. 560." ;(Quoted from Words and Phrases, Vol. 44) The subject area is classified in Commercial District and the proposed Commercial District use of the same would be identical to that presently authorized and operated in the contiguous south 20 feet of said plot classified in Commercial District. The Council has discretionary power to grant or deny the relief sought by Appellants in whole or in part. The Council's deter- mination to grant such relief, by an authorized variation of the pro- visions of the Zoning Code may be evidenced by resolution adopted by majority vote. The other features of this matter in regard to the extension of a Commercial District use to the entire plot are adequately covered by the prior opinion of the undersigned to said Board of Zoning dated September 21, 19619 a copy whereof is hereto attached and made part of this opinion. Res p t y , Sheehan Director of Law LPS-B