August 30, 2011 Land Use Work Group Jean Coleman Elizabeth
Transcription
August 30, 2011 Land Use Work Group Jean Coleman Elizabeth
August 30, 2011 To: REGION FIVE SUSTAINABILITY PROJECT Land Use Work Group Jean Coleman From: WILLIAM M ITCHELL COMMUNITY DEVELOPMENT C LINIC Elizabeth Anne Lyons, Certified Student Attorney Diane Marie Dube, Supervising Attorney Re: Legal Research for the Land Use Work Group The purpose of this memorandum is to provide summary and analysis of zoning research conducted for the Land Use Work Group of the Region Five Sustainability Project (Land Use Work Group). This legal research concerns one of the six “Key Issues” identified by the Land Use Work Group: The need for an effective land-use decision process that operates better than the current system. Jean Coleman assisted in narrowing down the deliverables to the following: 1. Conduct basic research on different zoning philosophies, particularly those used to achieve sustainable communities and create a matrix with the following information: Type of zoning, brief description of what each system of zoning does, what each standard of zoning accomplishes legally, pros of each system of zoning, cons of each system of zoning, whether or not the system of zoning generally promotes sustainability or whether it is even feasible. 2. Conduct legal research focused on the Micropolitan Project pertaining to the project and how these communities have incorporated multiple zoning philosophies in their zoning ordinances. Create a document describing the following information: Background information concerning the Micropolitan Project, What has been accomplished by the Micropolitan Project since the end of its Planning Phase in 2010, and Provide one to three examples of the Micropolitan Project communities using alternative zoning philosophies and identification of the various zoning philosophies contained in the ordinances of the example communities. 3. Conduct analysis on the zoning of the example communities. Create a document describing which provisions in the zoning ordinance of the example communities promote sustainability and which do not. This will also include definition and discussion 1 of “hardship” and “practical difficulty” and how those terms have been utilized in variances from the zoning ordinance examples. The zoning matrix is attached to this memorandum as Appendix A. Deliverable number three will be sent as a separate memorandum no later than October 1, 2011. The memorandum completes deliverable two and focuses on the zoning ordinances that are a part of the Gull Lake Micropolitan Project (Micropolitan Project), a pilot project designed to emulate on a smaller scale some of the objectives Region Five hopes to accomplish on a larger scale throughout the region. By examining at the Micropolitan Project’s successes and challenges, the Land Use Work Group may be able to gain important information concerning how to proceed with its own goals and planning. The memorandum is broken down into three sections. The first section provides background information about the Micropolitan Project. The second section contains a brief update on the Micropolitan Project since the end of the planning phase in 2010. The third section focuses on the jurisdictions involved with the Micropolitan Project: what each has done since the end of the Planning Phase in 2010, zoning philosophies incorporated into their zoning ordinances, and whether the jurisdictions have used alternative zoning philosophies in their ordinances. For the purposes of this memorandum, the evaluation of the zoning types in the zoning matrix is based on the HUD-DOT-EPA Partnership for Sustainable Communities definition of sustainability which is encompassed in six “Livability Principles”: Provide more transportation choices; Promote equitable, affordable housing; Enhance economic competitiveness; Support existing communities; Coordinate and leverage federal policies and investment; Value communities and neighborhoods.1 1 P ARTNERSHIP FOR SUSTAINABLE COMMUNITIES W EBSITE, http://www.sustainablecommunities.gov/index.html (last visited Aug. 13, 2011). 2 These “Livability Principles” were also incorporated into and expanded upon by Region Five in its identification of the “Twelve Needs” for the Region.2 In the future, perhaps both the “Livability Principles” and the “Twelve Needs” could be used to aid Region Five in formulating its own definition of sustainability or sustainable development. Likewise, they could be also utilized to build sustainability criteria by which various projects and programs throughout the Region could be evaluated to determine whether those projects and programs are meeting Region Five’s definition of sustainability or sustainable development. Background Information on the Micropolitan Project The Micropolitan Project is a comprehensive regional planning effort born out of a seed that was planted in May 2005 by the Brainerd Lakes Area Chamber of Commerce Regional Business Council. (The Chamber)3 As a result, three public meetings were held in May 2006.4 There were three goals set for the meetings: To encourage the Local Units of Government (LUGs) to work together. To identify priorities concerning the preservation of natural resources, recreation and economy in the Brainerd Lakes area. To provide for future growth and infrastructure needs throughout the area.5 The participants of the meeting included Crow Wing and Cass Counties, the local municipalities, citizens, businesses and several non-profit organizations.6 At those three initial meetings, over 70 resolutions of support from the various participants were adopted.7 2 Region Five Development Commission, R5DC Sustainable Communities Applicant Abstract 23, 24 (2009), http://www.regionfive.org/department_indexes/community_planning/documents/PrintableversionofAbstractandNarr ativeHUD.pdf (last visited Aug. 14, 2011). 3 John M. Sumption, Gull Lake Micropolitan Project: Local Unit of Government Survey Report 4 (March 29, 2010), http://www.explorebrainerdlakes.com/chambers/training/regional-planning.htm#Background (last visited Aug. 23, 2011). A copy of this report is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. 4 Id. 5 Id. 6 Id. 7 Id. 3 In January, 2007, seven workgroups were formed to address the topics of government services, wastewater, stormwater, transportation, commercial land use, residential land use, and public lands.8 Later that summer, the Region Five Development Commission pledged its support for the project in a partnership with the Chamber.9 In October, 2007, the seven workgroups presented their final reports to a joint meeting of the Cass and Crow Wing County Boards which included a list of twenty shared priorities.10 In 2008, the Micropolitan Project retained consultants Pat and Teri Hastings to facilitate the project. Progress continued throughout 2008 and 2009 as the Micropolitan Project participants performed research to accomplish the four goals, secure funding and continue the meetings among the LUGs involved.11 The focus of the Micropolitan Project was narrowed to the development and implementation of multi-jurisdictional plans for the four highest priority goals in a pilot area involving the Gull Lake jurisdictions: Crow Wing and Cass Counties; the Cities of East Gull Lake, Lake Shore, and Nisswa; and Fairview Township.12 The four priority goals were to: Select and develop model waste water and storm water standards for incorporation in individual ordinances Research, analyze, and disseminate comprehensive planning terms, definitions, policies, and processes Develop a multi-jurisdictional recreation strategy for trails, parks, and recreational facilities Develop and adopt model development guidelines that encouraged expansion of affordable infrastructure, performance-based development, and conservation development when appropriate. Progress continued throughout 2008 and 2009 as research was performed concerning 8 John M. Sumption, Gull Lake Micropolitan Project: Local Unit of Government Survey Report 4, 5 (March 29, 2010), http://www.explorebrainerdlakes.com/chambers/training/regional-planning.htm#Background (last visited Aug. 23, 2011). 9 Id. at 5. 10 Id. 11 Id. 12 Id. 4 how to accomplish the four goals and several meetings between the LUGs occurred.13 In February of 2010, John Sumption of Sumption Environmental, was contracted by Region Five on behalf of the Micropolitan Project to assume the role of facilitator.14 Mr. Sumption conducted individual surveys and interviews with each of the involved LUGs from February 9 to March 10, 2010.15 The topics discussed included: What each LUG wanted to learn or achieve as part of the Micropolitan Project What each LUGs goals or expectations were for the Micropolitan Project What programs or policies were working well for each of the LUGs What programs and polices weren’t working for each of the LUGs, and whether they could be addressed through the Micropolitan Project What duties were currently being shared between LUGs and ideas about what duties could be shared What the LUGs thought could be achieved through the Micropolitan Project and what might create roadblocks.16 After completing the interviews, Mr. Sumption formulated a list of eleven recommendations to move the Micropolitan Project to the next step. One recommendation was the creation of four task forces tied to the four previously identified goals17: Parks, Trails and Recreation; Planning and Development; Stormwater; and Wastewater.18 The taskforces met throughout the rest of 2010: each task force formulated desired outcomes, decided how to 13 John M. Sumption, Gull Lake Micropolitan Project: Local Unit of Government Survey Report 5 (March 29, 2010), http://www.explorebrainerdlakes.com/chambers/training/regional-planning.htm#Background (last visited Aug. 23, 2011). 14 Id. See Also. BRAINERD LAKES CHAMBER WEBSITE, http://www.explorebrainerdlakes.com/chambers/training/regional-planning.htm (Last visited Aug. 25, 2011). 15 John M. Sumption, Gull Lake Micropolitan Project: Local Unit of Government Survey Report 5 (March 29, 2010), http://www.explorebrainerdlakes.com/chambers/training/regional-planning.htm#Background (last visited Aug. 23, 2011). 16 Id. at 6-16. 17 Id. at 5, 6. The eleven recommendations are also attached to this memorandum. See Appendix B. 18 Id. at 16. 5 accomplish the desired outcomes.19, and identified what each hoped to accomplish during their meetings.20 The desired outcomes of the Planning and Development Taskforce were to create a baseline of common zoning and planning definitions, review the ordinances of the involved LUGs and adopt model development standards (conservation development, performance-based development standards, common land use districts), exchange permit formats and processing standards, and create a more uniform, formal process to encourage improved compliance with zoning and planning standards.21 At the end of the planning phase in December 2010 the Planning and Development Taskforce created a common zoning and planning definitions list which included over 1,683 terms.22 It also created model development standards which incorporated conservation development and performance based standards for residential developments and stormwater management.23 The model residential development standards also incorporated parts of the new DNR Draft Shoreland Rules.24 Next, the Taskforce agreed to present cooperative training programs for both staff and public concerning planning and 19 John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation 8-17 (Dec. 20, 2010). A copy of this PowerPoint is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. 20 John M. Sumption, Gull Lake Micropolitan Project: Local Unit of Government Survey Report 16 (March 29, 2010), http://www.explorebrainerdlakes.com/chambers/training/regional-planning.htm#Background (last visited Aug. 23, 2011). 21 Id. See Also. MODEL SUBSURFACE SEWAGE T REATMENT S YSTEM ORDINANCE AND C OUNTY/MUNICIPAL AGREEMENT FOR SERVICES (Micropolitan Project Wastewater Taskforce, Mar. 10, 2010) See Appendix C. 22 John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation 12-13 (Dec. 20, 2010). See also. GULL LAKE M ICROPOLITAN P ROJECT COMMON DEFINITIONS LIST (Micropolitan Project Planning and Development Taskforce, 2010). Attached. See Appendix D. 23 John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation 12-13 (Dec. 20, 2010); MODEL RESIDENTIAL DEVELOPMENT S TANDARDS (Micropolitan Project Planning and Development Taskforce, 2010). Attached. See Appendix E; MODEL S TORMWATER MANAGEMENT S TANDARDS (Micropolitan Project Planning and Development Taskforce, 2010). Attached. See Appendix F. 24 John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation 12-13 (Dec. 20, 2010); M INN. DEPT. OF N ATURAL R ESOURCES , DRAFT S HORELAND RULES (July 2010) http://files.dnr.state.mn.us/waters/watermgmt_section/shoreland/rd3879draft20100706.pdf (last visited Aug. 14, 2011). 6 development issues.25 Finally, the City of East Gull Lake and Cass County agreed by contract that Cass County would administer the City of East Gull Lake’s ordinance.26 Research for this memo included interviews with six individuals involved with the Micropolitan Project or the respective jurisdictions. These individuals included elected officials, staff from the Micropolitan jurisdictions and a planning and technical support organization. My goal for the interviews was to speak directly with individuals who were a direct part of the Micropolitan Project or who were involved with the administration of zoning in the Micropolitan Jurisdictions. The general opinion among those interviewed was that the planning phase of the Micropolitan Project had been a great success.27 They felt that they had accomplished a lot together with plans for continued and future collaborations, and that what they had accomplished would work towards meeting the four goals and be beneficial to both the LUGs and the general public overall.28 At the end of the planning phase, those interviewed reported that the LUGs seemed to be looking forward to working with each other and continuing their work during the next phase of the Micropolitan Project.29 Brief Micropolitan Project Update Those interviewed reported that since the conclusion of the planning phase and the subsequent wrap-up meeting on December 20, 2010, there have been no further meetings of either the Taskforces or between the LUGs as a whole.30 Additionally, there has been little further collaborative action taken towards the implementation of the recommendations made in 25 John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation 13 (Dec. 20, 2010), Attached. See Appendix B. 26 Id. at 13. 27 Lyons Collective Interviews. See the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. 28 Id. 29 Id. 30 Id. 7 the final Taskforce reports.31 Those interviewed were asked why they believed no further action had been taken, and the same two thoughts were voiced throughout the collective: the Micropolitan Project needs a leader to move the project forward and the collaboration among the jurisdiction has both value and challenges.32 The Project Needs a Leader: No one has stepped up to assume the role of facilitator to continue to move the project forward after Region Five’s contract with John Sumption ended at the end of 2010.33 Many felt that the project really needs a designated facilitator but that the facilitator might need to come from outside the LUGs.34 This may be because the LUGs tend to get wrapped up in their own jurisdictions’ priorities and as a result, the Micropolitan Project keeps getting pushed to the side which has caused the Micropolitan Project to stall.35 A designated facilitator could: Convene meetings of the Work Groups and others; Serve as the communications hub among the Work Groups; Set timelines and deadlines; and Encourage and monitor progress in each of the Work Groups Region Five could seek a grant or, if permissible, use funds from the HUD Sustainability Project, to pay for an outside facilitator to move the Micropolitan Project forward and explore the feasibility of incorporating these recommendations into the Region Five HUD Sustainability Project. If funds are now available, perhaps Region Five might be able to find a retired Planning Engineer who would be willing to commit to the project on a volunteer basis. The Value and Challenges of Collaboration: The second theme among those interviewed was that the Micropolitan Project was important because it allowed relationships to form 31 Lyons Collective Interviews. See the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Id. 33 Id. 34 Id. 35 Id. 32 8 between and among the LUGs involved.36 It also shed light on problem areas in the different jurisdictions and allowed for collaborative ideas to help resolve those problematic areas.37 Some expressed uncertainty whether such extensive collaboration could be implemented on a large scale.38 The Micropolitan Project included both cities and counties and some feel that the differences among them might be too big to overcome.39 Even if the differences could be overcome; it would take a long period of time for goals and objectives to be achieved.40 One mechanism to overcome these challenges would be for the jurisdictions involved to sign a cooperative agreement, commit to accomplishing specific goals within a specified timeframe, and hold each other accountable for progress towards these goals. Through continued cooperation to achieving the goals of the Micropolitan Project, regular communication of opportunities for collaboration and of proposed changes in policies and procedures, and shared technical expertise, information and resources, it may be possible to build on the goodwill that exists and to move the Micropolitan Project forward. Zoning in the Micropolitan Project Area Research for this memo included interviews with * who were asked about any progress or lack of progress each jurisdiction has made in implementing the Micropolitan Project recommendations. The discussion is focused specifically on planning and zoning including any plans to incorporate the Micropolitan Project recommendations or its goals in the future. Other recent revisions to the ordinances or codes are discussed briefly where relevant, as are future plans to revise the ordinances. 36 Lyons Collective Interviews. See the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Id. 38 Id. 39 Id. 40 Id. 37 9 Those interviewed expressed their personal and, at times, candid opinions as to what has been achieved and the challenges the jurisdictions face. This section also describes the types of zoning used in the current ordinances and any unique or special provisions in them. Discussion and further analysis of these zoning types will be included in the October 1, 2011 memorandum. All of the ordinances from the Micropolitan Project area are based on traditional Euclidean Zoning.41 However, like most modern ordinances they are no longer purely Euclidian but include other types of zoning and variations on the Euclidian theme to individualize the ordinances to the unique needs, requirements and wishes of their respective jurisdictions.42 Cass County Implementation of MP recommendations and goals: There are no plans to directly include any of the specified recommendations from the Micropolitan Project in the area of planning and zoning, according to John Ringle, Director of the Cass County Environmental Services Department.43 Mr. Ringle opined that he is not sure whether anything on a large scale, such as envisioned in the Micropolitan Project, could happen in Cass County44 because of the large number of jurisdictions and the geographic, economic and demographic differences among them.45 What might work in one area may not work in the other.46 For example, Cass County includes large areas for recreation and tourism, heavily forested areas, and federal and Native lands. Perhaps the county could have separate ordinances, 41 Elizabeth A. Lyons, Certified Student Attorney, William Mitchell College of Law. Zoning Matrix for the Land Use Work Group, Region Five Sustainability Project (2011). Attached. See Appendix A. 42 Id. 43 Telephone interview with John Ringle, Director, Cass County Environmental Services Department (Aug. 11, 2011). A copy of the interview notes is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. 44 Id. 45 Id. 46 Id. 10 one for the Brainerd Lakes portion of the County and one for the rest of the County.47 However, Mr. Ringle suspects that would potentially require the creation of another governmental function or unit to carry out such an arrangement.48 Interestingly, all of the LUGs agreed from the beginning that they did not want to create any more governmental functions or units within their jurisdictions.49 If anything could be accomplished, it would likely happen slowly, and over time.50 Mr. Ringle was not certain that extensive collaboration between the LUGs could occur over a shorter period of time.51 However, many of the Cass County proposed ordinance revisions did come about as indirect results of the relationship formed with Crow Wing County as a result of the Micropolitan Project.52 Cass County is currently in the process of revising its zoning ordinance and is using parts of Crow Wing County’s ordinance as a template to promote similar land use practices between the counties.53 Revisions include language to place a moratorium on new lake resorts, language mirroring the Crow Wing shoreland regulations, and some coordination of language between the two counties.54 Therefore, some of the Micropolitan Project recommendations may be achieved indirectly as a result of the collaboration between the two 47 Telephone interview with John Ringle, Director, Cass County Environmental Services Department (Aug. 11, 2011). 48 Id. 49 John M. Sumption, Gull Lake Micropolitan Project: Local Unit of Government Survey Report 6 (March 29, 2010), http://www.explorebrainerdlakes.com/chambers/training/regional-planning.htm#Background (last visited Aug. 23, 2011). 50 Telephone interview with John Ringle, Director, Cass County Environmental Services Department (Aug. 11, 2011). 51 Id. 52 Id. 53 Id. 54 Id. See also. CASS COUNTY, M INN., DRAFT REV. LAND U SE ORDINANCES #2005-1, 39-40 AND 103-108 (Working Copy #2011-01, Aug. 10, 2011). 11 counties and, reports Mr. Ringle, there is a definite willingness to continue their relationship into the future.55 Other proposed revisions pertaining to planning and zoning include grammatical and other such minor changes.56 One interesting larger revision is the inclusion of more language into the ordinance pertaining to the new legislation passed this year dealing with variances.57 (Variances in Minnesota and the new legislation will be discussed in detail in the October 1, 2011 memorandum) Cass County will incorporate the new legislative language to make its ordinance conform to the newly revised statutes.58 Cass County hears on average 18 variance applications monthly, and they also hope to address how the Assistant County Attorney views variances and conditional uses and how they should be treated in the future.59 The first hearing on these revisions was held on July 13, 2011, and was continued for public comment and discussion to September.60 (The exact date had not yet been set at the time of this memorandum.61)62 The next step after the September meeting will be to request the County Board to set a final hearing date.63 Then, thirty days after the final hearing and passing of the new ordinance revisions by the County Board it will become effective.64 According to John 55 Telephone interview with John Ringle, Director, Cass County Environmental Services Department (Aug. 11, 2011). 56 Id. See also. CASS COUNTY, M INN., DRAFT REV. LAND U SE ORDINANCES #2005-1, 39-40 AND 103-108 (Working Copy #2011-01, Aug. 10, 2011). 57 Telephone interview with John Ringle, Director, Cass County Environmental Services Department (Aug. 11, 2011). See also. CASS COUNTY, M INN., DRAFT REV. LAND USE ORDINANCES #2005-1, 11 AND 21-25 (Working Copy #2011-01, Aug. 10, 2011). 58 Telephone interview with John Ringle, Director, Cass County Environmental Services Department (Aug. 11, 2011). 59 Id. 60 Id. See also. CASS COUNTY, M INN., DRAFT REV. LAND U SE ORDINANCES #2005-1 (Working Copy #2011-01, Aug. 10, 2011), A copy of this draft ordinance is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. 61 Telephone interview with John Ringle, Director, Cass County Environmental Services Department (Aug. 11, 2011). 62 Id. 63 Id. 64 Id. 12 Ringle, at the Cass County Environmental Services Department, it will likely be the end of the year before it is in effect.65 Zoning philosophies incorporated into zoning ordinances: The current Cass County ordinance (116 pages in length) is based on Euclidean Zoning with modifications in separate sections to allow for conditional use permits and variances.66 The last revision of the Cass County ordinance was effective on May 27, 2005 with the most recent amendments effective as of January 10, 2010. 67 There are at least three unique land use classifications that are not seen under a traditional Euclidean Zoning system but are not uncommon in Minnesota due to the many lakes and waterfront opportunities. The zones are for Urban Growth (UG), Water Oriented Commercial(WOC) and Resource Protection (RP).68 The Urban Growth Zone is intended to “is to encourage orderly growth of development of an urban density and nature around incorporated municipalities, or in and around unincorporated trade centers, or as the focal point for new trade centers”.69 The Water Oriented Commercial zone is intended to “to accommodate commercial uses in the shoreland zone where access to and use of a surface water feature is an integral part of the business.”70 The Resource Protection zone is intended to “accommodate limited rural residential housing, agricultural uses and forest management activities in a fashion that conserves sensitive land areas in which more intensive development would adversely affect wildlife or the 65 Telephone interview with John Ringle, Director, Cass County Environmental Services Department (Aug. 11, 2011). 66 C ASS C OUNTY, M INN., LAND USE ORDINANCE #2005-1, 16-19 and 21-24 (Amended by #2009-07) (Effective Jan. 10, 2010), available at http://www.co.cass.mn.us/ordinances/200501_landuse.pdf. 67 C ASS C OUNTY, M INN., LAND USE ORDINANCE #2005-1 (Amended by #2009-07) (Effective Jan. 10, 2010), available at http://www.co.cass.mn.us/ordinances/200501_landuse.pdf 68 Id. at 25-27. 69 Id. at 26. 70 Id. at 27. 13 environment”.71 The ordinance also allows residents or landowners to submit a request for a reclassification of land use under certain circumstances.72 The ordinance contains Performance Based Zoning in a separate section containing performance standards which provide additional requirements for a wide variety of topics including agricultural use, infrastructure and conservation.73 Crow Wing County: Implementation of MP recommendations and goals: Crow Wing County revised its ordinance effective on April 22, 201174 and included many of the Micropolitan Project recommendations throughout the new ordinance.75 The new ordinance incorporates both the common definitions and model development standards recommended by the Planning and Development Taskforce of the Micropolitan Project.76 The model development standards include conservation design and allow a person to choose between conservation design methods or traditional design methods when developing land in the County.77 Although traditional design methods are still allowed, the County promotes and prefers the use of conservation design methods, according to Chris Pence, Land Services Supervisor for Crow Wing County.78 Conservation design (also known as conservation 71 C ASS C OUNTY, M INN., LAND USE ORDINANCE #2005-1, 27 (Amended by #2009-07) (Effective Jan. 10, 2010), available at http://www.co.cass.mn.us/ordinances/200501_landuse.pdf 72 Id. at 19-21. 73 Id. at 29-100. 74 Crow Wing County, Minn., Land Use Ordinance (Apr. 22, 2011), available at http://www.co.crowwing.mn.us/planning___zoning/ordinances/docs/Crow_Wing_County__Ordinance__Final_Version__3_22_111.pdf. 75 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). A copy of the interview notes is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. 76 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). See also. Crow Wing County, Minn., Land Use Ordinance 83-86, 129-154 (Apr. 22, 2011), available at http://www.co.crowwing.mn.us/planning___zoning/ordinances/docs/Crow_Wing_County__Ordinance__Final_Version__3_22_111.pdf. 77 Id. at 83-88. 78 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). 14 development, cluster development and open space development79) is a controlled-growth form of land use development that allows for limited sustainable development in an area while protecting that area’s natural environmental features.80 This may include ideas such as the preservation of open space, protection of agriculture and farmland, protection for natural wildlife habitats for wildlife, and ensuring the character of rural communities is maintained.81 The specifics of the conservation design included in the Crow Wing ordinance will be discussed in the forthcoming October 1, 2011 memorandum. Crow Wing County also implemented a version of the Micropolitan Project recommended Model Stormwater Standards.82 The language is not the exact language as proposed by the Micropolitan Project but is similar and modified to address specific stormwater issues in Crow Wing County.83 Mr. Pence also opined that it was an easy decision for Crow Wing to include the Micropolitan Project recommendations.84 He felt that Crow Wing County was the leading LUG for the Micropolitan Project, and that the other LUGs were looking to it to set the precedent.85 Crow Wing County invested a lot of time and energy into the Micropolitan Project because it found the project to be very important and relevant to the County.86 Therefore, the County always planned to include many of the recommendations after the planning phase was 79 Ronald L. Ellis Jr., Residential Land Use Policy and Conservation Development in the Blanco River Basin, Applied Research Projects, Texas State University-San Marcos, Paper 110 (2006). available at http://ecommons.txstate.edu/arp/110. 80 Id. 81 Id. 82 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011); John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation 14-15 (Dec. 20, 2010); MODEL STORMWATER M ANAGEMENT S TANDARDS (Micropolitan Project Planning and Development Taskforce, 2010). Attached. See Appendix F. See also. Crow Wing County, Minn., Land Use Ordinance 112-116 (Apr. 22, 2011), available at http://www.co.crowwing.mn.us/planning___zoning/ordinances/docs/Crow_Wing_County__Ordinance__Final_Version__3_22_111.pdf. 83 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). 84 Id. 85 Id. 86 Id. 15 complete.87 Mr. Pence believes implementing the recommendations was the right thing to do for the County as a whole.88 Additional revisions to the Crow Wing Ordinance outside of the Micropolitan Project recommendations included the addition of more performance standards to put more focus on the effects of land use rather than focusing solely on land use classifications.89 The County also included more innovative ideas into its Ordinance. One example is that it created both shoreland buffer and shoreland protection zones that have specific performance standards based on where a person’s land is located along the lakefront.90 It also created a shoreland rapid assessment model to go along with the new standards that aids County staff in determining what requirements a landowner must meet to obtain a shoreland permit.91 Another innovative example is the inclusion of language requiring homeowners to have both septic compliance inspections and septic system assessment inspections.92 The County is proud to have had a 96% septic system pass rate since 2008 and the new language is included to ensure the pass rate remains high and that systems are properly maintained.93 In the future, Crow Wing County hopes to collaborate with Cass County on a joint septic ordinance.94 At this time the project is on hold while the Counties wait and see if 87 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). Id. 89 Id. See also. Crow Wing County, Minn., Land Use Ordinance 57-129 (Apr. 22, 2011), available at http://www.co.crowwing.mn.us/planning___zoning/ordinances/docs/Crow_Wing_County__Ordinance__Final_Version__3_22_111.pdf. 90 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). See also. Crow Wing County, Minn., Land Use Ordinance 16-17, 33-41, 65-68 (Apr. 22, 2011), available at http://www.co.crowwing.mn.us/planning___zoning/ordinances/docs/Crow_Wing_County__Ordinance__Final_Version__3_22_111.pdf. 91 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). 92 Id. See also. Crow Wing County, Minn., Land Use Ordinance 102-105 (Apr. 22, 2011), available at http://www.co.crowwing.mn.us/planning___zoning/ordinances/docs/Crow_Wing_County__Ordinance__Final_Version__3_22_111.pdf. 93 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). 94 Id. 88 16 the State will make any changes to its rules pertaining to septic systems.95 In the meantime, they are working on a draft of a joint septic ordinance to explore this potential possibility.96 Zoning philosophies incorporated into zoning ordinances: The current Crow Wing County ordinance (now 155 pages in length97) is based on Euclidean Zoning with modifications in separate sections to allow for nonconforming uses, conditional use permits, and variances.98 There are three unique land use classifications into zones for Urban Growth (UG), Sensitive Shoreland (SS) and Waterfront Commercial (WC).99 Urban Growth zones and Waterfront Commercial zones were discussed briefly above in the Cass County section. Sensitive Shoreland zones are intended to “accommodate limited residential uses, agricultural uses, and forest management activities within the shoreland protection zone while conserving sensitive land areas on which more intensive development would adversely affect water quality, wetlands, lakes, shorelines, slopes, wildlife habitat, biological ecosystems, or scenic and natural values.”100 The ordinance also contains a very large amount of Performance Based Zoning in 34 separate sections containing performance standards providing additional requirements for a wide variety of topics such as campground standards, parking and wetland protection.101 City of East Gull Lake: Implementation of MP recommendations and goals: 95 Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). Id. 97 Crow Wing County reduced its ordinance by 80 pages, enhancing readability for both county employees and the general public. Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). 98 Crow Wing County, Minn., Land Use Ordinance 18-20, 21-24, and 24-28 (Apr. 22, 2011), available at http://www.co.crowwing.mn.us/planning___zoning/ordinances/docs/Crow_Wing_County__Ordinance__Final_Version__3_22_111.pdf. 99 Id. 100 Crow Wing County, Minn., Land Use Ordinance 29 (Apr. 22, 2011), available at http://www.co.crowwing.mn.us/planning___zoning/ordinances/docs/Crow_Wing_County__Ordinance__Final_Version__3_22_111.pdf. 101 Id. at 33-129. 96 17 The City of East Gull Lake is not currently in the process of revising its ordinances, nor does it have plans to do so in the immediate future.102 Asked if East Gull Lake was willing to implement any of the Micropolitan Project recommendations into a future revision of its ordinances, Ms. Thomes replied that it would but that the City of East Gull Lake hoped to align itself with what Cass County was doing pertaining to its ordinance.103 The City of East Gull Lake is more likely to implement language similar to Cass County, but that she would be happy if the revisions included some of the recommendations resulting from the Planning Phase of the Micropolitan Project.104 Zoning philosophies incorporated into zoning ordinances: The current land use, zoning and subdivision ordinance for the City of East Gull Lake is based on Euclidean Zoning with modifications in the General Provisions Section to allow for nonconforming uses, and in the Administration Section to allow for conditional use permits, and variances.105 According to Ms. Thomes, the ordinance is a fairly typical, straightforward ordinance.106 The current ordinance does contain special impervious surface requirements for shoreland property divided by a road.107 The area across the road would normally be factored into the calculation to determine how much impervious surface a landowner could have on his property.108 This would allow them to build a bigger home on the lakefront than ideal.109 The 102 Telephone interview with Brenda Thomes, City Administrator, City of East Gull Lake (August 9, 23 2011). Id. 104 Id. 105 C ITY OF E AST GULL LAKE, M INN., C ITY CODE OF ORDINANCES #1110-2009, Title VIII 234-238, 356-362 (November 10, 2011), available at http://www.eastgulllake.govoffice.com/vertical/Sites/%7BF4DD0CCB-CB334568-A2AD-0D17E332F9F8%7D/uploads/EGL_City_Code_July_12_2011_update.pdf. 106 Telephone interview with Brenda Thomes, City Administrator, City of East Gull Lake (August 9, 23 2011). 107 Id. See also. C ITY OF E AST G ULL LAKE, M INN., C ITY C ODE OF ORDINANCES #1110-2009, Title VIII 258-267 (November 10, 2011), available at http://www.eastgulllake.govoffice.com/vertical/Sites/%7BF4DD0CCB-CB334568-A2AD-0D17E332F9F8%7D/uploads/EGL_City_Code_July_12_2011_update.pdf. 108 Id. 109 Id. 103 18 City wanted to prevent people from building too big a house on the lake side so it enacted these standards.110 The ordinance also contains Performance Based Zoning in the form of a separate section containing performance standards including signs, storage and drainage.111 There are two unique land use classifications into zones for Waterfront Commercial (WC) and Off-Water Resort Overlay District (OWROD).112 Waterfront Commercial zones were discussed briefly above in the Cass County section. The Off-Water Resort Overlay District is intended “to establish and maintain an overlay Land Use district which provides for the development of resorts which will add to the recreational character of the City.”113 Additionally, Smart Zoning is utilized in the ordinance in the Special Provisions section for Planned Unit Developments (PUDs).114 The Code of Ordinances for the City of East Gull Lake (379 pages in length) was last revised in 2009 and the online version was recently updated on July 12, 2011.115 The administration of the ordinance, such as inspections and permitting, is contracted out to Cass County.116 City of Lake Shore: Implementation of MP recommendations and goals: 110 Telephone interview with Brenda Thomes, City Administrator, City of East Gull Lake (August 9, 23 2011). See also. C ITY OF E AST GULL LAKE, M INN., C ITY CODE OF O RDINANCES #1110-2009, Title VIII 258-267 (November 10, 2011), available at http://www.eastgulllake.govoffice.com/vertical/Sites/%7BF4DD0CCB-CB33-4568-A2AD0D17E332F9F8%7D/uploads/EGL_City_Code_July_12_2011_update.pdf. 111 C ITY OF E AST GULL LAKE, M INN., C ITY CODE OF ORDINANCES #1110-2009, Title VIII 288-315 (November 10, 2011), available at http://www.eastgulllake.govoffice.com/vertical/Sites/%7BF4DD0CCB-CB33-4568-A2AD0D17E332F9F8%7D/uploads/EGL_City_Code_July_12_2011_update.pdf. 112 Id. at 241-288. 113 Id. at 282-286. 114 Id. at 316-326. See also. Elizabeth A. Lyons, Certified Student Attorney, William Mitchell College of Law. Zoning Matrix for the Land Use Work Group, Region Five Sustainability Project (2011). Attached. See Appendix A. 115 C ITY OF E AST GULL LAKE, M INN., C ITY CODE OF ORDINANCES #1110-2009, Title VIII (November 10, 2011), available at http://www.eastgulllake.govoffice.com/vertical/Sites/%7BF4DD0CCB-CB33-4568-A2AD0D17E332F9F8%7D/uploads/EGL_City_Code_July_12_2011_update.pdf. 116 Telephone interview with Brenda Thomes, City Administrator, City of East Gull Lake (August 9, 23 2011). 19 At this time, the City of Lake Shore is not in the process of revising its ordinance and there is no set date for future revisions.117 However, the City is currently working on the comprehensive planning and zoning definitions list from the Micropolitan Project recommendations and comparing them to what it currently has in its ordinance.118 The City of Lake Shore may then change its own zoning and planning definitions based on the Micropolitan Project list in a future revision.119 The City of Lake Shore is currently working on one of the recommendations made by the Micropolitan Project’s Park, Trails and Recreation Taskforce which is to expand the hiking and biking trails around Gull Lake.120 It hopes to create a trail through the City of Lake Shore which would one day connect the City of Lake Shore with the City of East Gull Lake and Fairview Township.121 Zoning philosophies incorporated into zoning ordinances: The current City of Lake Shore Ordinance is based on Euclidean Zoning with modifications in the General Provisions Section to allow for nonconforming uses, and in the Administration Section to allow for conditional use permits, and variances.122 It is 138 pages in length. The City of Lake Shore’s most recent ordinance revisions were adopted on July 27, 2009.123 The ordinance contains Performance Based Zoning in the form of a separate section containing performance standards which includes innovative stormwater standards as well as a 117 Telephone interview with Teri Hastings, City Administrator and Planning and Zoning Administrator, City of Lake Shore (Aug. 11, 2011). 118 Id. 119 Id. 120 Id. See also. John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation 9-11 (Dec. 20, 2010). 121 Telephone interview with Teri Hastings, City Administrator and Planning and Zoning Administrator, City of Lake Shore (Aug. 11, 2011). 122 City of Lake Shore, Minn., Land Use and Subdivision Ordinance 27-29, 123-127 (Jul. 27, 2009), available at http://cityoflakeshore.com/media/Document_34.pdf. 123 City of Lake Shore, Minn., Land Use and Subdivision Ordinance (Jul. 27, 2009), available at http://cityoflakeshore.com/media/Document_34.pdf. 20 unique way of handling them.124 According to Ms. Hastings, the City Planning and Zoning Administrator, these stormwater standards were looked at as examples by the Micropolitan Project for their Stormwater recommendations.125 There is one unique land use classification into a zone for Commercial Waterfront (CW).126 This type of zone was discussed briefly above in the Cass County section. Additionally, Smart Zoning is utilized in the ordinance in the Overlay Districts and District Provisions section to establish an overlay district for the Lake Margaret Watershed Overlay District (LMW).127 An overlay district is intended to “establish and maintain districts that overlay existing zoning districts to better manage significant areas with specific needs, such as encouraging growth in areas with existing public facilities or preserving areas with valued resources and amenities.128 The original zoning of the area applies with special requirements are added through the overlay district.129 Lake Margaret is considered an impaired water and the overlay district aims to protect and improve the quality of the water on the lake as without barring reasonable development.130 City of Nisswa: Implementation of MP recommendations and goals: As of the writing of this Memo, there is no update from the City of Nisswa on its implementation efforts. Zoning philosophies incorporated into zoning ordinances: 124 City of Lake Shore, Minn., Land Use and Subdivision Ordinance 72-89 (Jul. 27, 2009), available at http://cityoflakeshore.com/media/Document_34.pdf. See also. Telephone interview with Teri Hastings, City Administrator and Planning and Zoning Administrator, City of Lake Shore (Aug. 11, 2011). 125 Telephone interview with Teri Hastings, City Administrator and Planning and Zoning Administrator, City of Lake Shore (Aug. 11, 2011). See also. John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation 14-15 (Dec. 20, 2010). 126 City of Lake Shore, Minn., Land Use and Subdivision Ordinance 31-66 (Jul. 27, 2009), available at http://cityoflakeshore.com/media/Document_34.pdf. 127 Id. at 66-72. 128 Id. at 66. 129 Id. 130 Id. 21 The current ordinance is based on Euclidean Zoning with modifications in the General Provisions Section to allow for nonconforming uses, and in the Administration Section to allow for conditional use permits, interim uses, and variances.131 It is 117 pages in length. The City of Nisswa’s most recent ordinance revisions were adopted on December 17, 2008.132 The ordinance contains Performance Based Zoning in the form of separate section containing performance standards including general performance standards, residential and commercial performance standards and special provisions.133 There are three unique land use classifications into zones for Commercial Waterfront District (CW), Planned Development District (PDD) and the Linden Lakeshore Residential Overlay (LR).134 Commercial Waterfront Districts were discussed briefly above in the Cass County section. A Planned Development District is a district that “provides a regulatory framework to encourage improved environmental design allowing flexibility in the development of land while insuring compliance with the intent of the Zoning Ordinance and Comprehensive Plan.135 The land must have a minimum acreage of 85 acres but there are no other set standards or specifications for the area.136 The Linden Lakes Overlay is an overlay district “developed and designed to provide specific and unique performance standards for the previously platted and developed Linden Lakes neighborhood adjacent to public waters”.137 All new parcels must meet the requirements of the Shoreline 131 City of Lake Shore, Minn., Land Use and Subdivision Ordinance 31-33 and 106-112 (Jul. 27, 2009), available at http://cityoflakeshore.com/media/Document_34.pdf. 132 City of Nisswa, Minn., Land Use and Subdivision Ordinance (Dec. 17, 2008), available at http://www.ci.nisswa.mn.us/departments/pz/ordinance/NSW_ord_010109.pdf. 133 Id. at 34-103. 134 Id. at 18-22. 135 Id. at 20-21. 136 Id. 137 Id. 22 Residential District (SR).138 Additionally, Smart Zoning is utilized in the ordinance in the Special Provisions section for shoreland Planned Unit Developments (PUD’s).139 Fairview Township: Implementation of MP recommendations and goals: Fairview Township has a comprehensive plan and planning commission but does not have its own zoning ordinance. 140 The township uses the Cass County ordinances for planning and zoning purposes.141 Any implementation of the MP recommendations and goals by Fairview Township would need to conform to the Cass County ordinances unless Fairview Township adopted its own zoning ordinances. Marla Yoho, secretary of the Fairview Township Planning Commission and member of the Micropolitan Project, expressed frustration that Fairview does not have its own zoning ordinance so that they could implement some of the recommendations and goals. She took the project very seriously.142 One idea for the future that came about from the Micropolitan Project recommendations from the Park, Trails and Recreation Taskforce is to expand their hiking and biking trail by increasing the shoulders of the roadside around Gull Lake which would end at the City of Lake Shore.143 The plan is currently not moving forward because of a lack of funding to carry it out.144 138 City of Nisswa, Minn., Land Use and Subdivision Ordinance 20-21 (Dec. 17, 2008), available at http://www.ci.nisswa.mn.us/departments/pz/ordinance/NSW_ord_010109.pdf. 139 Id. at 77-82. See also. Elizabeth A. Lyons, Certified Student Attorney, William Mitchell College of Law. Zoning Matrix for the Land Use Work Group, Region Five Sustainability Project (2011). Attached. See Appendix A. 140 Telephone interview with Marla Yoho, Secretary, Fairview Township Planning Commission (Aug. 9, 2011). A copy of the interview notes is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. 141 Fairview Township, Minn., Comprehensive Plan (Nov. 8, 2006), available at http://www.fairviewtwpmn.com/vertical/Sites/%7B275C57D9-5D7B-412E-918E570A6956F918%7D/uploads/%7BC2313F7A-2500-4B86-ABDD-E2C6871F4963%7D.PDF. A copy of the Comprehensive Plan is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. See also. CASS COUNTY, M INN., LAND USE ORDINANCE #2005-1 (Amended by #2009-07) (Effective Jan. 10, 2010), available at http://www.co.cass.mn.us/ordinances/200501_landuse.pdf. 142 Id. 143 Id. See also. John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation 9-11 (Dec. 20, 2010). 23 Fairview Township hopes to still be able to implement the project but it will depend on whether or not they are able to find the necessary funding.145 Zoning philosophies incorporated into zoning ordinances: See discussion above about the Cass County ordinances. Fairview Township’s goal in adopting its Comprehensive Plan was to manage expected growth and to protect the distinct characteristics of the township through the next twenty years.146 The most recent revisions to the Comprehensive Plan were adopted on November 8, 2006 and can be found on Fairview Township’s website.147 Lessons for the Region Five Sustainability Project As a regional planning effort, the Micropolitan Project is, in some ways, a micro-version of the Region 5 HUD Sustainability Project. As the HUD Sustainability Project moves forward, the participants should consider and discuss the following: Should Region 5 and can Region 5 incorporate or promote any of the recommendations from the Micropolitan Project into the sustainability plan? How can the jurisdictions in Region 5 promote continued collaboration and commitment to regional sustainability as the work progresses from the planning phase to the implementation phase? How can all of the governing entities in Region 5, such as school districts, watershed districts and tribal lands, be part of the implementation of the Sustainability Plan? If it is a challenge for one county to develop a regional focus, how can the HUD Sustainability Project succeed in developing a regional focus for five counties? 144 Telephone interview with Marla Yoho, Secretary, Fairview Township Planning Commission (Aug. 9, 2011). Id. 146 Id. 147 Id. See also. Fairview Township, Minn., Comprehensive Plan (Nov. 8, 2006), available at http://www.fairviewtwpmn.com/vertical/Sites/%7B275C57D9-5D7B-412E-918E570A6956F918%7D/uploads/%7BC2313F7A-2500-4B86-ABDD-E2C6871F4963%7D.PDF. 145 24 REFERENCES MINNESOTA STATUTES, LAWS AND INTERPRETATIONS MINN. S TAT. §160.85, subd. 4 (2010). MINN. S TAT. §§ 462.358, 473.859 (2010). MINN. S TAT. §462.3595 (2010). Minnesota Land Planning Act, Minn. Stat. § 473.858, subd. 1 (2010). Minnesota Livable Communities Act, MINN. S TAT. § 473.25 (2010). MINN. DEPT. OF NATURAL RESOURCES, DRAFT SHORELAND RULES (July 2010) http://files.dnr.state.mn.us/waters/watermgmt_section/shoreland/rd3879draft20100706.pdf (last visited Aug. 14, 2011). Opinion Letter from Attorney General Lori Swanson on MINN. S TAT. §§ 462.358, 473.859available at http://www.tchousingpolicy.org/_uls/resources/articles/AG_Opinion_on_IZ.pdf (2007). LOCAL ORDINANCES AND CODES CASS COUNTY , M INN., LAND USE ORDINANCE #2005-1 (Amended by #2009-07) (Effective Jan. 10, 2010), available at http://www.co.cass.mn.us/ordinances/200501_landuse.pdf. CASS COUNTY , M INN., DRAFT REV. LAND USE ORDINANCES #2005-1 (Working Copy #201101, Aug. 10, 2011), A copy of this draft ordinance is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. CITY OF EAST GULL LAKE, M INN., C ITY CODE OF ORDINANCES #1110-2009, Title VIII (November 10, 2011), available at http://www.eastgulllake.govoffice.com/vertical/Sites/%7BF4DD0CCB-CB33-4568-A2AD0D17E332F9F8%7D/uploads/EGL_City_Code_July_12_2011_update.pdf. City of Lake Shore, Minn., Land Use and Subdivision Ordinance (Jul. 27, 2009), available at http://cityoflakeshore.com/media/Document_34.pdf. City of Nisswa, Minn., Land Use and Subdivision Ordinance (Dec. 17, 2008), available at http://www.ci.nisswa.mn.us/departments/pz/ordinance/NSW_ord_010109.pdf. Crow Wing County, Minn., Land Use Ordinance (Apr. 22, 2011), available at http://www.co.crowwing.mn.us/planning___zoning/ordinances/docs/Crow_Wing_County__Ordinance__Final_Versi on__3_22_111.pdf. 1 Crow Wing County, Minn., Former Land Use Ordinance (Effective Jul. 8, 2005,Last Amended May 26, 2010). A copy of this ordinance is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Crow Wing County, Minn., Subdivision Ordinance, Art. 6.1 (Aug. 8, 2006) available at http://www.co.crowwing.mn.us/planning___zoning/docs/Subdivision_Ordinance_cleaned_up_9_23_10.pdf. Fairview Township, Minn., Comprehensive Plan (Nov. 8, 2006), available at http://www.fairviewtwpmn.com/vertical/Sites/%7B275C57D9-5D7B-412E-918E570A6956F918%7D/uploads/%7BC2313F7A-2500-4B86-ABDD-E2C6871F4963%7D.PDF. Gull Lake Micropolitan Project Common Definitions List (Micropolitan Project Planning and Development Taskforce, 2010). See Appendix D. MODEL R ESIDENTIAL DEVELOPMENT S TANDARDS (Micropolitan Project Planning and Development Taskforce, 2010). See Appendix E. MODEL SUBSURFACE SEWAGE TREATMENT SYSTEM ORDINANCE AND COUNTY/MUNICIPAL AGREEMENT FOR SERVICES (Micropolitan Project Wastewater Taskforce, Mar. 10, 2010) See Appendix C. MODEL S TORMWATER MANAGEMENT S TANDARDS (Micropolitan Project Planning and Development Taskforce, 2010). See Appendix F. CASES Builders Serv. Corp. v. Planning and Zoning Comm’n of East Hampton, 545 A.2d 530 (1988). Southern Burlington County N.A.A.C.P. v. Mount Laurel Tp., 336 A.2d 713 (1975). The Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). BOOKS CURRENT TRENDS AND PRACTICAL S TRATEGIES IN LAND USE LAW AND ZONING 145-146, 150, 154-155 (Patricia E. Salkin, ed., ABA Section of State and Local Government Law) (2004). DOUGLAS R. PORTER ET AL., THE URBAN LAND INSTITUTE, FLEXIBLE ZONING: HOW IT WORKS 3-5, 8-10, 11-13, 95-96 (2d ed. 1991). INTERNATIONAL C ITY/C OUNTY M ANAGEMENT ASSOCIATION, AN ICMA GREEN BOOK: LOCAL P LANNING CONTEMPORARY PRINCIPLES AND PRACTICE 287-291, 298-307 (Gary Hack et al. eds., 2009). 2 Pennsylvania Legislator’s Municipal Deskbook 3d ed., Exclusionary Zoning and the Fair Share Doctrine 121-122 (2006), available at http://www.lgc.state.pa.us/deskbook06/Issues_Land_Use_04_Exclusionary_Zoning.pdf. PETER K. BECK ET AL., NATIONAL BUSINESS INSTITUTE, PRACTICAL GUIDE TO ZONING AND LAND USE LAW IN M INNESOTA 106-108 (2004). BRIAN W. OHM, DEPARTMENT OF URBAN & REGIONAL P LANNING UNIVERSITY OF WISCONSIN -MADISON/EXTENSION , GUIDE TO COMMUNITY P LANNING IN WISCONSIN 2.5, 2.3 (1999). available at http://www.lic.wisc.edu/shapingdane/resources/planning/library/book/other/title.htm. ARTICLES, PAPERS AND REPORTS Alastair McFarlane, Inclusionary Zoning and the Development of Urban Land 1-2 (U.S. Dept. of Housing and Urban Development, Working Paper No. REP 09-02, 2009). Alejandro E. Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement and Adaptive Planning in Land Use Decisions, 24 STAN. ENVTL. L.J. 17-19 (Installment 1, 2005). Andres Duany, Emily Talen, Making the Good Easy: The Smart Code Alternative, 29 FORDHAM L. REV. 1451-1453 (April 2002). Chad D. Emerson, Making Main Street Legal Again: The SmartCode Solution to Sprawl, 71 MO. L. REV. 639-645 (2006). Charles M. Haar and Michael Allen Wolf, Euclid Lives: The Survival of Progressive Jurisprudence, 115 HARV. L. R EV. 2158 (June 2002). CLARION ASSOC., DUNCAN ASSOC., PHILADELPHIA: ZONING CODE COMMISSION, NEW PHILADELPHIA ZONING CODE: BEST PRACTICES REPORT 28-31 (June 2009). Eliza Hall, Divide and Sprawl, Decline and Fall: A Comparative Critique of Euclidean Zoning, 68 U. PITT. L. R EV. 915 (2007). Elizabeth A. Lyons, Certified Student Attorney, William Mitchell College of Law. Zoning Matrix for the Land Use Work Group, Region Five Sustainability Project ( August 2011). Attached. See Appendix A. Eric R. Claeys, Euclid Lives? The Uneasy Legacy of Progressivism in Zoning, 73 FORDHAM L. REV. 731 (2004). Field Guide to Inclusionary Zoning, NATIONAL ASSOCIATION OF REALTORS WEBSITE (April 2011), http://www.realtor.org/library/library/fg806. 3 Handbook for Minnesota Cities, LEAGUE OF M INNESOTA C ITIES WEBSITE (December 2010), http://www.lmc.org/page/1/handbook-for-mn-cities-TOC.jsp. J. Spencer Clark, Rocking the Suburbs: Incentive Zoning as a Tool to Eliminate Sprawl, 22 BYU J. PUB. L. 258-260, 264-266 (2007). Jed Burkett, League of Minnesota Cities Risk Management Information, Subdivisions, Plats, and Development Agreements-Oh My! (April 2008). A copy of this report is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Jason T. Burdette, Form-Based Codes: A Cure for the Cancer Called Euclidean Zoning? (Apr. 10, 2004) (Unpublished MUP thesis, Virginia Polytechnic Institute and State University) (available at http://scholar.lib.vt.edu/theses/available/etd-05122004-113700/). John M. Sumption, Gull Lake Micropolitan Project: Local Unit of Government Survey Report (March 29, 2010), http://www.explorebrainerdlakes.com/chambers/training/regionalplanning.htm#Background (last visited Aug. 13, 2011). A copy of this report is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. John M. Sumption, Micropolitan Project Wrap-Up Meeting PowerPoint Presentation (Dec. 20, 2010). A copy of this PowerPoint is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Lindsey E. Allen, Philadelphia Neighborhood Conservation: Using Public Policy to Protect Historic and Threatened Residential Neighborhoods (Jan. 1, 2010) (Unpublished M.A. Thesis, University of Pennsylvania) (available at http://repository.upenn.edu/hp_theses/137). Paul Beyer, NEW YORK STATE O FFICE FOR THE AGING, LIVABLE NEW YORK R ESOURCE MANUAL: C LUSTER ZONING/CONSERVATION ORIENTED DEVELOPMENT II.2.b1-II.2.b3 (rev. ed. 2011). Phoenix Planning Commission Subcommittee, Form Based Zoning White Paper 1-12 (January 2006) (available at http://phoenix.gov/urbanformproject/wp10.pdf) Region Five Development Commission, R5DC Sustainable Communities Applicant Abstract (2009), http://www.regionfive.org/department_indexes/community_planning/documents/Printableversio nofAbstractandNarrativeHUD.pdf (last visited Aug. 14, 2011). Ronald L. Ellis Jr., Residential Land Use Policy and Conservation Development in the Blanco River Basin, Applied Research Projects, Texas State University-San Marcos, Paper 110 (2006). available at http://ecommons.txstate.edu/arp/110. Ronald J. Treharne, Euclidean II Zoning: Enhancing Existing Zoning Classification Systems into a Hierarchical System to Support Sustainable Development and to Support New Urbanism 4 Development, Unpublished Paper (July 2008). (available at http://ron-treharne.com/euclideanii/). Also attached as Appendix G. Ronald J. Treharne, Euclidean II Zoning PowerPoint Presentation (Jul. 22, 2008). (available at http://ron-treharne.com/euclideanii/). Also attached as Appendix H. Seattle Planning Commission, Incentive Zoning in Seattle: Enhancing Livability and Housing Affordability White Paper 1-12 (February 2007) (available at http://www.seattle.gov/planningcommission/docs/SPC_IncZon.pdf). Shelby D. Green, Development Agreements: Bargained-for Zoning That is Neither Illegal Contract nor Conditional Zoning, Pace Law Faculty Publications, Paper 432. (2004). available at http://digitalcommons.pace.edu/lawfaculty/432. State of California Governor’s Office of Planning and Research, The Planner’s Training Series: The Conditional Use Permit (August 1997). available at http://ceres.ca.gov/planning/cup/condition.htm. VERMONT LAND USE EDUCATION AND TRAINING COLLABORATIVE, LAND USE P LANNING AND IMPLEMENTATION MANUAL: P LANNED UNIT DEVELOPMENT 22.1-22.4 (2007), http://www.vpic.info/pubs/implementation/. VERMONT LAND USE EDUCATION AND TRAINING COLLABORATIVE, LAND USE P LANNING AND IMPLEMENTATION MANUAL: PERFORMANCE S TANDARDS 21.1-21.4 (2007), http://www.vpic.info/pubs/implementation/. WEBSITES EUCLIDEAN II ZONING WEBSITE, http://ron-treharne.com/euclideanii/ (Last visited Aug. 26, 2011). A copy of the paper on Euclidean II Zoning by Ron Treharne is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. FAIRVIEW TOWNSHIP WEBSITE, http://www.fairviewtwpmn.com/index.asp?Type=B_BASIC&SEC={16DB77FB-0BC5-4E6F89ED-4561212AFD65} (last visited Aug. 14, 2011). FORM BASED CODES INSTITUTE WEBSITE , http://www.formbasedcodes.org (Last visited July 11, 2011). PARTNERSHIP FOR SUSTAINABLE COMMUNITIES WEBSITE, http://www.sustainablecommunities.gov/index.html (last visited Aug. 13, 2011). SMART GROWTH NETWORK WEBSITE , http://www.smartgrowth.org/ (last visited Aug. 20, 2011). 5 TWIN C ITIES HOUSING P OLICY WEBSITE, http://www.tchousingpolicy.org/ (last visited July 10, 2011). ZONING MATTERS: THE OFFICIAL S ITE OF THE P HILADELPHIA ZONING C ODE COMMISSION , http://zoningmatters.org/facts/trends (last visited July 10, 2011). INTERVIEWS AND OTHER CORRESPONDENCE Telephone interview with Brenda Thomes, City Administrator, City of East Gull Lake (August 9, 23 2011). A copy of the interview notes is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Telephone interview with Charles L. Marohn Jr., Executive Director, Strong Towns and Planner/Engineer, Community Growth Institute (Aug. 15, 2011). A copy of the interview notes is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Telephone interview with Chris Pence, Land Services Supervisor, Crow Wing County (Aug. 11, 2011). A copy of the interview notes is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Telephone interview with John Ringle, Director, Cass County Environmental Services Department (Aug. 11, 2011). A copy of the interview notes is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Telephone interview with Marla Yoho, Secretary, Fairview Township Planning Commission (Aug. 9, 2011). A copy of the interview notes is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Telephone interview with Teri Hastings, City Administrator and Planning and Zoning Administrator, City of Lake Shore (Aug. 11, 2011). A copy of the interview notes is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. E-mail correspondence with Ron Treharne, Architect and Developer of Euclidean II Zoning (Jul. 10 and Aug. 26, 2011). A copy of this correspondence is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. 6 APPENDIX A: ZONING MATRIX This Matrix provides basic information about zoning types or add-ons to zoning types in use throughout the United States. By providing a basic understanding it may aid the Work Group in thinking about what might work within Region Five to achieve its desired land use goals. DEFINITIONS Conditional Use Permit- A permit that a property owner may receive if the project meets the conditions specified in the city's ordinance. The zoning code specifies the uses that are permitted if certain conditions are met and the conditions that must be met in order for a permit to be granted. If the proposal meets the stated conditions, the property owner is entitled to the permit. It is a useful tool to help give flexibility to traditional Euclidean zoning and gives the city a certain degree of control over these uses. Density- The number of inhabitants allowed in a dwelling or the number of buildings or housing units allowed per unit of area. (Often per acre of land) Density Bonus- An incentive that allows a developer to increase the number of inhabitants allowed in a dwelling or the maximum amount of development allowed on a property. In return, the developer must include provisions in their project that helps the community to achieve a public policy goal. Development Agreement: A contract between a landowner/developer and the city. A development agreement typically includes: Documentation of the understanding between the developer and city regarding the design and construction of the project; Establishment of the parameters under which the development will proceed; Details the rights and responsibilities of each party to the agreement; Designation of who will build, pay for and own the improvements; Provision of the timeline for the construction/installation; Description of who is liable for any defects or claims Highest/Best Use- Use of a property that would create the highest value for that property. Basically what a property can be used for that is the most legal, probable, physically achievable, and financially supportable that will give the property the highest value possible. Incompatible Use- An incompatible land use is use of a property in a way that might be incompatible with other surrounding properties or a use that is not permitted by the local zoning ordinance. Livable Communities- Encompasses different community design ideas that allow individuals to become engaged and involved in their communities. This usually involves structural design elements including housing, transportation, and recreation in addition to other social elements including education and cultural diversity all located in central areas that are easy to access and move around in. (May overlap with the concepts of mixed use, new urbanism and smart growth) Mixed Use- Planning or zoning that allows for development of a building, group of buildings, neighborhood or zoning district for more than one use. This is in contrast to traditional Euclidean zoning which usually keeps uses separate from each other. (May overlap with the concepts of livable communities, new urbanism and smart growth) New Urbanism- A planning school of thought or movement that promotes the creation and restoration of diverse, compact, mixed-use/livable communities that are assembled in a more integrated fashion into complete communities. This is only a basic definition of new urbanism as there is no set definition describing the movement. (May overlap with the concepts of livable communities, mixed use, and smart growth) Smart Growth- Creative development in ways that promotes conservation and reuse of land that is already developed, and protection of natural resources and the environment. Reinvesting in existing infrastructure and reclaiming historic buildings is a major goal as well as designing neighborhoods that have essential stores and services near homes, and promoting recreational transportation as well as public transportation for individuals to move easily within their communities. There is no set definition and ideas of smart growth vary between organizations and jurisdictions. (May overlap with the ideas of livable communities, mixed use, and new urbanism) Smart Growth Principles- A list of 10 principles of smart growth developed by the Smart Growth Network. 1. Mix land uses. 2. Take advantage of compact building design. 3. Create a range of housing opportunities and choices. 4. Create walkable neighborhoods. 5. Foster distinctive, attractive communities with a strong sense of place. 6. Preserve open space, farmland, natural beauty, and critical environmental areas. 7. Strengthen and direct development towards existing communities. 8. Provide a variety of transportation choices. 9. Make development decisions predictable, fair, and cost effective. 10. Encourage community and stakeholder collaboration in development decisions. Sustainable Development- A pattern of land and resource use that attempts to meet human needs at the same time as protecting the environment and natural resources not only for the present but also for future generations. Urban Sprawl-Growth and expansion of urban areas into nearby rural and suburban areas. Unchecked or even deliberate growth may create or exacerbate problems such as dependence on transportation, reduction of available space for open areas or parks, and the need for additional infrastructure such as streets, highways and sanitation. Variance- A variance is a discretionary tool a LUG uses to allow a landowner to vary from the strict reading of the code requirements because there is something about the land that makes compliance with the strict reading of the code not feasible. Zoning- Land use planning device used by local units of government (LUG’s) to plan the layout and/or design of their jurisdictions, and specify the uses that are permitted in the jurisdiction. Zoning requirements or regulations are usually incorporated into a code or ordinance that is then administered by the LUG. Zoning District- A part of a jurisdiction or community designated by a zoning code or ordinance for certain kinds of land uses or other municipal land controls. Euclidean Zoning Description of the Zoning Philosophy Goals of this Type of Zoning Examples of Classifications Pros of this Type of Zoning Cons of this Type of Zoning Historically, Euclidean zoning is the most commonly used type of zoning. It regulates development through land use classifications by segregating land uses into specified geographic distributions. Each land use must comply with dimensional standards that regulate the height, bulk and area of structures. These dimensional standards stipulate limitations on the development allowed within each type of district. Residential uses are generally afforded greater protection than industrial uses due to the development of Euclidean Zoning as a response to private nuisances that occurred as a result of the Industrial Revolution. To separate incompatible or noxious uses from the community thereby protecting public health and welfare. To provide for orderly growth, prevent overcrowding, and alleviate congestion as well as maintain the status quo. Land uses are divided into main categories based on their land use: Residential, Institutional, Commercial, Industrial, Recreational, Agricultural, etc. Land uses may also be subdivided i.e. Single family residential, multi-family residential, manufactured home residential, etc. Within classifications are dimensional standards such as setbacks, side yards, height limits, minimum lot sizes and lot coverage limits. Additionally there may also be certain design standards imposed. Euclidean Zoning has for the most part accomplished its goals and was historically effective for use in early industrial cities. Relatively easy to implement and has long established legal precedent, therefore it is more familiar in concept to the general public and to developers. Has the potential to foster predictability regarding land use of adjacent properties and may protect both personal property investments as well as public rights. Has the potential to provide accountability because of its rigidity. This, in turn, may foster objectivity because either a project meets the requirements or it doesn’t. Therefore, people can usually expect to be treated the same under these codes. May be cheaper to implement and administer than other methods of preserving land use outside zoning codes. (Ex. Easements) Due to the rigidity of Euclidean Zoning, it may be hard in reality to achieve the desired results in many settings. Many Local Units of Government (LUG’s) use variances to address unique characteristics of a parcel and conditional use permits to allow certain uses if specified conditions are met. These tools can create the perception of disparity or arbitrary decision-making. Many see this zoning type as institutionalizing outdated planning theory. It worked well in the past but it has become problematic in the present because it arguably ignores how cities really operate. This has led to urban sprawl as areas experience short term growth and success, then decline if jurisdictions are unable to financially maintain the growth in the long term. Rigid requirements may interfere with personal building choice i.e. the right to do what you want with your land. Rigid requirements may lead to monotony in street layout and design: when buildings in an area must all comply with the same dimensional and design standards, they begin to look alike. Fosters urban sprawl because it separates residential and commercial uses requiring residents to travel greater distances to reach their destinations, and it creates a dependence on vehicles or other forms of transportation rather than walking. Segregated uses also has the potential to prevent rather than promote interactions 1 Does this Type of Zoning Support Sustainability? Zoning Code Example Citations & References between the public and their neighborhoods. May exclude certain populations or separate economic classes. May impede the development of mixed-use, livable communities because uses are often entirely separated. Euclidian zoning generally does not effectively support sustainability by itself but could do so if it is used as a base level for zoning classifications with other types of zoning added to promote sustainability goals. It does not promote the provision of more transportation choices because it focuses on the use of land and does not readily provide for other infrastructure. Urban sprawl limits the amount of area of land available for neighbor friendly parks or open green areas, as well as space for agriculture because these areas are taken up by buildings and other infrastructure. The rigidity of Euclidean classifications do not allow for much variation in structures overall so may promote aesthetic monotony in addition to preventing mixed used in an area. Monotony, urban sprawl, and prevention of mixed uses may in turn lessen the walkability and “small town” or “downtown” feel of areas leading to less public interaction with their neighborhoods. Therefore the value of communities and neighborhoods may be lessened rather than promoted. Additionally the urban sprawl created by Euclidean Zoning combined with growth does not support existing communities because areas may grow beyond what many jurisdictions are able to financially afford to maintain them. This may lead to economic decline of an area as well as the physical decline of infrastructure in addition to the possibility for LUGs to cut vital community services to meet their budgetary needs. No specific example. Almost any code in Minnesota is based on Euclidean zoning. However almost no codes are purely Euclidean anymore and may include exceptions, modifications or several different zoning types rolled into one. The Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Handbook for Minnesota Cities, LEAGUE OF MINNESOTA CITIES WEBSITE (December 2010), http://www.lmc.org/page/1/handbook-for-mn-cities-TOC.jsp; Zoning Matters: The Official Site of the Philadelphia Zoning Code Commission, http://zoningmatters.org/facts/trends (last visited July 10, 2011); Eliza Hall, Divide and Sprawl, Decline and Fall: A Comparative Critique of Euclidean Zoning, 68 U. PITT. L. REV. 915 (2007); Charles M. Haar and Michael Allen Wolf, Euclid Lives: The Survival of Progressive Jurisprudence, 115 HARV. L. REV. 2158 (June 2002); Eric R. Claeys, Euclid Lives? The Uneasy Legacy of Progressivism in Zoning, 73 FORDHAM L. REV. 731 (2004); Euclidean II Zoning Description of the Zoning Philosophy This is only a proposed modification to traditional Euclidean Zoning and not an established type of zoning. Some of the ideas encompassed by Euclidean II Zoning have been incorporated into variations on traditional Euclidean Zoning. However, Euclidean II Zoning takes many of these ideas and incorporates them together into a zoning type that could potentially be used as either a parallel or stand- alone code. However, at this time there are no published papers or established precedent beyond its creator, Ron Treharne. This matrix only discusses the basic concept of Euclidean II Zoning. For more detail, see Appendix G for the paper Mr. Treharne authored on the topic. Mr. Treharne is willing to discuss Euclidean II zoning directly and his contact information can also be found in Appendix G. Additionally, see Appendix H for Mr. Treharne’s PowerPoint presentation on the topic. Euclidean II Zoning uses traditional Euclidean classifications but places them in a hierarchical order "nesting" one zoning classification within another allowing for mixed uses in all zoning districts. “Nesting” means that each zoning classification is encompassed by or a subset of another zone classification. Once a zoning classifications is 2 Goals of this Type of Zoning Examples of Classifications Pros of this Type of Zoning Cons of this Type of Zoning defined with its permitted uses, than it and its permitted uses are permitted uses in any subset of the zoning class. This is intended to add a third dimension to zoning but still protect land values by layering the zoning districts into levels based on their location in urban society. Euclidean II Zoning also takes utilities, transportation and other infrastructure into consideration unlike traditional Euclidian Zoning. One interesting thing about Euclidean II Zoning is that all permitted activities and definitions are tied directly to a state’s building code, Municode (A company and website maintained by the Municipal Code Corporation to codify and provide access for municipal laws and ordinances), and the North American Industry Classification System (NAICS) to ensure uniformity. In this way, many of the different aspects of land use can be incorporated into a single code. This is potentially less complicated to implement and administer than adding in different types of zoning piecemeal on a traditional Euclidean based code as issues arise. To modernize zoning by simplifying all zoning classifications into a single and uniform set of activities. To include the concepts of mixed use, new urbanism and "highest and best use" into a comprehensive zoning code. To simplify the implementation and administration of zoning. Essentially there are four levels (Regional, Municipal, Community, and Neighborhood) within three categories (Public, Private, and Semi Public Social Services) that are incorporated into the traditional zoning classifications the majority of LUGs are already familiar with. (Industrial, Business, Agricultural, Multi-family, Residential, etc.) There are additionally "new" categories included that previously had no zoning classification defined. (Utilities, Governmental, Civic, Parks, Vehicular, etc.) See Appendices G and H for diagrams and charts of how these classifications look put together. Has the potential to simplify zoning classifications into a single, uniform set of activities It is theoretically fairly easy to transition from existing systems to Euclidian II Zoning. The developer claims it is simple to understand, adopt, and implement in addition to using familiar terms and definitions. This is because it is similar to traditional Euclidean Zoning but arguably better organized. (Single list of classifications and definitions, single matrix of max/min requirements) May foster the concepts of new urbanism, and “highest and best use” through allowing mixed uses and “lesser” uses within a zoning classification. (Ex. Promoting rebuilding on an existing site, closer proximity to existing infrastructure or transportation, and re-using existing buildings) May protect existing zoning classifications and land values because a LUG incorporate them into the Euclidean II System. (Ex. You can still separate activities, Planned Unit Developments (PUDs) and special zoning districts would still be allowed.) Potential to have no ambiguities or gray areas-One does not have to fully understand why it works. They just need to refer to the defined set of definitions, look at a table, and be able to tell what is permitted and what is not in a particular zoning classification. May be adopted as a stand-alone code or can be implemented parallel to an existing code. Untested philosophy Can be a little difficult to understand at first. If the explanation is written, it can be difficult to visualize the concept. May require education for planning commissions, planning departments and developers. Unless widely adopted, developers may avoid communities that have a new, untested zoning philosophy because of the time (i.e. cost to them) to learn, understand and incorporate the zoning into their designs. 3 Does this Type of Zoning Support Sustainability? Zoning Code Example Citations & References Unless planning departments and planning commissions understand this tool, they may not know how to incorporate this tool into their ordinances or may rely on other zoning tools to achieve the desired result. Diagrams, charts and other visual tools are necessary for ease of understanding and implementation but they can take up space so might create longer ordinances. Euclidean II Zoning has the potential to support sustainable development better than traditional Euclidean Zoning because it can take more than just use into consideration and organize it into a comprehensive system. Use or activity, social necessity and impact on the surrounding community are potentially accounted for in Euclidean II Zoning. This helps lessen the “Not in my backyard” segregation of undesirable uses or activities into areas that are less economically affluent while still protecting the value of communities. This type of zoning would also be able to grow with the changing needs of the community because it would allow for set criteria and formula for the LUG to evaluate any new undefined use or activity and either place it within the closest existing classification or create a new one. It can also help plan for public services that are more easily accessible or at least more evenly distributed. Euclidean II Zoning may also be economically and environmentally sustainable by promoting reduced dependence on transportation due to the potential to build more mixed use, walkable communities. It also may promote the use of existing lots for new developments or transformation of existing buildings which provides support to existing communities. There may also be less urban sprawl because Euclidean II Zoning would attempt to make development more efficient and concentrated rather than spread out. There are no zoning codes or ordinances that have thus far utilized Euclidean II Zoning as the basis for their zoning system. Euclidean II Zoning Website, http://ron-treharne.com/euclideanii/ (Last visited Aug. 26, 2011); Ronald J. Treharne, Euclidean II Zoning: Enhancing Existing Zoning Classification Systems into a Hierarchical System to Support Sustainable Development and to Support New Urbanism Development, Unpublished Paper (Jul. 22, 2008). (Attached as Appendix G and available at http://ron-treharne.com/euclideanii/; Ronald J. Treharne, Euclidean II Zoning PowerPoint Presentation (Jul. 22, 2008). (Attached as Appendix H and available at http://ron-treharne.com/euclideanii/). E-mail correspondence with Ron Treharne, Architect and Developer of Euclidean II Zoning (Jul. 10 and Aug. 26, 2011). A copy of this correspondence is available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. Exclusionary Zoning Description of the Zoning Philosophy Goals of this Type of Zoning “Exclusionary Zoning” is not truly a type of zoning, rather it refers to zoning requirements, language or practices that exclude uses or developments – or has the effect of excluding uses or developments -- deemed politically or socially undesirable. Most zoning provisions have some exclusionary aspects – ex., zoning an area as residential excludes industrial developments. The exclusionary aspects may either be intentional or unintentional. Exclusionary Zoning provisions can singly or in combination indirectly result in the exclusion of certain populations or housing for low or moderate income groups. A court may find that a zoning provision which excludes housing projects that are likely to include racial minorities or other protected classes violates the federal Fair Housing Act, the Minnesota Human Rights Act or the Equal Protection Clause of the 5th and 14th Amendments of the U.S. Constitution. Therefore, LUG’s must be cautious in crafting zoning codes so as not to have unintended or illegal results. Emphasis is placed on separating incompatible or noxious uses from the public by keeping certain uses out of certain areas. Other goals are providing for orderly growth, prevention 4 Examples of Classifications Pros of this Type of Zoning Cons of this Type of Zoning Does this Type of Zoning Support Sustainability? Zoning Code Example of overcrowding, preserving the value of properties, alleviating congestion, protecting the health and welfare of the public, and creating enclaves of high valued properties. Exclusion of multi- family dwellings, restrictions on the number of bedrooms allowed in multi-family dwellings, having minimum building or lot sizes, exclusion of mobile homes, etc. A "Formula Retail Business Ordinance" (FRB ordinance) is a tool some cities have used to restrict certain retail uses based on the appearance or operation of the business. These ordinances apply to business that have the same design, trademark, characteristics, inventory or menu a dozen or so other businesses -- in other words, a chain store that looks exactly the same in one community as it does in another. The FRB ordinances generally limit the size of these stores and impose design and operation restrictions (such as banning drive-through features), subject the business to design review (ex. San Francisco, California) or require the business to meet specified conditions (ex. the cities of Sausalito and Los Gatos in California). Communities have adopted these ordinances to curb congestion (ex. Palm Beach, Florida), preserve a historic district (ex. Bristol, Rhode Island), residential character (ex. Calistoga, California), or village atmosphere (ex. Coronado, California), counter a "growing mall atmosphere" (ex. Los Gatos, California), or create a unique visual appearance (ex. Sausalito, California). Usually the ordinance lists conditions that must be met in order to obtain a conditional or special use permit. Some of the themes or components in these lists include a design review with extensive or specific requirements; meeting the conditions required of all applicants for a conditional or special use permit; and meeting additional requirements applicable only to a FRB use. Theoretically maintains the upkeep of neighborhoods and creates uniformity in neighborhood aesthetics Proponents believe eliminating certain uses reduce opportunities for crime and vandalism by eliminating uses stereotypically considered problematic (Ex. apartment complexes, liquor stores, adult bookstores) May eliminate or minimize uses that require public services or infrastructure (ex. highway improvements, water and sewer, larger schools) Where industrial or commercial uses are prohibited or limited to resident serving enterprises, there may be reduced environmental impacts such as large surface parking lots, traffic congestion, and air or light pollution. May result in economic or racial segregation; may institutionalize racial prejudice and perpetuate stereotypes Prejudicial to those of low or moderate means because it may create a lack of affordable housing Not particularly effective in supporting sustainability May promote dependence on transportation for people who work but can’t afford to live in the same area. Many courts have found exclusionary zoning provisions to be illegal or invalid. No, because it does not promote ideas such as mixed use, livable communities which are considered to be more sustainably oriented and community friendly. May encourage racial or economic segregation, decrease affordable housing, and increase dependence on transportation which does not promote the value of a community nor support existing communities. Minnesota has not directly addressed exclusionary zoning. An out of state example in which a zoning ordinance was found to be exclusionary is Builders Serv. Corp. v. Planning and Zoning Comm’n of East Hampton, 545 A.2d 530 (1988) (ordinance that required a minimum floor area of 1,300 square feet for new housing was invalid, because it did not serve the purposes of zoning set forth in the state’s zoning enabling act). 5 Citations & References PETER K. BECK ET AL ., NATIONAL BUSINESS INSTITUTE , PRACTICAL GUIDE TO ZONING AND LAND USE LAW IN MINNESOTA 106-108 (2004); Southern Burlington County N.A.A.C.P. v. Mount Laurel Tp., 336 A.2d 713 (1975) (upheld Met Council’s approach for negotiating affordable housing goals to meet the Goals of the Minnesota Livable Communities Act); Minnesota Livable Communities Act, MINN. STAT. § 473.25 (2010); Pennsylvania Legislator’s Municipal Deskbook 3d ed., Exclusionary Zoning and the Fair Share Doctrine 121-122 (2006), available at http://www.lgc.state.pa.us/deskbook06/Issues_Land_Use_04_Exclusionary_Zoning.pdf. Inclusionary Zoning Description of the Zoning Philosophy Goals of this Type of Zoning Examples of Classifications Pros of this Type of Zoning Cons of this Type of Zoning “Inclusionary Zoning” is not a true type of zoning, rather it refers to zoning language, requirements or practices that mandate or encourage certain uses. The idea was a response by planners to challenges concerning exclusionary zoning requirements as they relate to housing or commercial businesses. For example, developers of new residential projects may be required or encouraged to set aside a certain percentage of residential units for households of low or moderate income. A mandatory program requires the inclusion of a certain number of units. Some programs allow a developer to give cash in lieu of providing additional units. A voluntary program offers incentives for the inclusion of affordable housing units. These incentives can include fee waivers, fast tracked permits, exceptions, bonus densities or other incentives or rewards. Inclusionary zoning can be incorporated into an ordinance, zoning code, policy statement, jurisdictional housing element or public financing program. Most courts have not conclusively decided upon the legality of inclusionary zoning. However, in Minnesota, Attorney General Lori Swanson wrote a 2007 opinion which seems to indicate it is legal in Minnesota under Minn. Stat. §§ 462.358 and 473.859. (See reference below.) Encouraging the provision of affordable housing or business space when new development occurs and providing for housing and building space affordability to continue into the future. A certain percentage of residential units set aside for affordable housing or affordable business space, affordability criteria based on median income to ensure future affordability, and future sales prices to project affordability even further into the future. Provisions in the ordinance for density bonuses, low income housing tax credits, incentives for expedited zoning and approval, decreased lot sizes for low to moderate income housing, or zoning variances for low to moderate income housing. May promote affordable housing or affordable business space for people of low to moderate income at little or no cost to the LUG. This may in turn promote future affordability and Smart Growth Principles. Adds a degree of flexibility and may combat exclusionary zoning practices by creating income integrated communities. Can be incorporated into existing zoning. Has the potential to reduce transportation dependence if affordable homes are created near jobs. Give and take: the community benefits but so does the developer. Most courts have not decided on the legality of Inclusionary Zoning; legality of mandatory programs are often challenged Developer may incur higher costs, in return raising the price of market-rate housing and may actually reduce the housing supply. May shift the cost of affordable housing or business space to other groups May cause unwanted growth in areas that otherwise would not have grown as much. This may in turn burden the provision of local governmental services. 6 Does this Type of Zoning Support Sustainability? Zoning Code Example Citations & References Failure by a municipality to include any incentives could cause developers to choose to build in areas more profitable to them. Yes Inclusionary Zoning can promote sustainability in the area of providing equitable and affordable housing or business space. Having affordability criteria and/or pricing criteria for future sales may help ensure that housing remains affordable in the future. Additionally, by providing affordable housing, people might be able to afford a home in the same area in which they work which could reduce dependence on transportation. LUGs could utilize inclusionary zoning practices in areas of redevelopment by building new housing on existing lots or transforming larger older buildings into affordable apartments or lofts. The City of Chaska, MN has included inclusionary zoning into its ordinancehttp://www.chaskamn.com/new_resident/zone_pdf/Intent%20of%20Districts.pdf. It wanted to provide affordable, mixed income housing and preserve the small town feel of their community yet welcome future growth. CURRENT TRENDS AND PRACTICAL STRATEGIES IN LAND USE LAW AND ZONING 145-146, 150, 154155 (Patricia E. Salkin, ed., ABA Section of State and Local Government Law) (2004); Alastair McFarlane, Inclusionary Zoning and the Development of Urban Land 1-2 (U.S. Dept. of Housing and Urban Development, Working Paper No. REP 09-02, 2009); Field Guide to Inclusionary Zoning, NATIONAL ASSOCIATION OF REALTORS WEBSITE (April 2011), http://www.realtor.org/library/library/fg806; TWIN CITIES HOUSING POLICY WEBSITE , http://www.tchousingpolicy.org/ (last visited July 10, 2011); MINN. STAT . §§ 462.358, 473.859 (2010); Opinion Letter from Attorney General Lori Swanson on MINN. STAT. §§ 462.358, 473.859-available at http://www.tchousingpolicy.org/_uls/resources/articles/AG_Opinion_on_IZ.pdf (2007). Contract Zoning/Conditional Zoning/Development Agreements Description of the Zoning Philosophy Contracts or agreements between cities and developers are not individual zoning types but are used in a variety of instances to achieve desired results for both parties such as re-zoning, restrictions on the land or development, public financing or infrastructure development. The terms are often interchanged or a state or region may adopt one term. In Minnesota, “development agreement” is the most commonly used term which states the “understanding between the developer and the city regarding the design and construction of the particular project. It establishes the parameters under which the development will proceed, as well as the rights and the responsibilities of the developer and the city. Issues resolved in a development agreement include: The design, installation and financing of public improvements; security for completion of improvements installed by developer, a cash deposit, certified check, irrevocable letter of credit, bond, or other financial security; design of lighting, landscaping, sidewalks, underground utilities and other site plans issues; and coordination of construction with the installation of various utility improvements.” Conditional Zoning, a term used outside Minnesota, should not be confused with “Conditional Use Permits” which are used in Minnesota. Conditional Use Permits are discussed briefly below and will also be examined in more detail in the next memo due October 1, 2011. Development agreements are negotiated agreements between a developer and a LUG. A “Community Benefits Agreement” is a “legally enforceable contract, signed by 7 Goals of this Type of Zoning Examples of Classifications Pros of this Type of Zoning Cons of this Type of Zoning Does this Type of Zoning Support Sustainability? Zoning Code Example References 1 community groups and by a developer setting forth a range of community benefits that the developer agrees to provide as part of a development project”1 in exchange for community support for the project and other negotiated consideration. Benefits typically include local hiring aspirations or requirements, measures to mitigate traffic and parking concerns, affordable housing and land set aside for public use. Mutual agreement between developers and municipalities. Accommodation of uses that would not be harmful but would not be generally allowed in an area. Obtain community or public benefits from a private development. A LUG’s zoning code is for residential use but a business wants to use it commercially. The business makes an agreement with the LUG to re-zone the area as commercial. In return the business restricts its use to avoid certain uses that are objectionable to the residents. Courts are more recently open to this type of zoning, especially in the context of a Planned Unit Development. May be used to address conditions that are not specified in a zoning or subdivision ordinance. May be used to obtain public or community benefits in exchange for public subsidies or financing. May allow the city and developer to specify project details. Historically considered illegal abrogation or delegation of police powers or a takings without just compensation, and therefore invalid. Jurisdictions desiring development may forego a demand for a “quid pro quo”, leading to a project only beneficial to the developer and not to the community. Implementation may be arbitrary and subject to legal challenge Contract Zoning, Conditional Zoning, and Development Agreements can be used to align local planning goals and investment resources to achieve sustainable communities. CBAs enable community participation in the decision-making process. Development Agreements and CBAs can be used to help reduce social and economic disparities for lowincome and communities of color, and to minimize displacement in neighborhoods with significant disadvantaged populations. By incorporating affordable housing requirements into the agreement, a jurisdiction can increase the proportion of low and very lowincome households near transit lines, job centers parks, schools and other vital amenities. or job centers. However, the contract or agreement must specifically target these goals. The provisions would be limited to the specific project and would promote overall sustainability in a jurisdiction. Therefore, these types of contracts, conditions or agreements must be used in combination with other tools in order to achieve sustainability goals. I haven’t found any examples of “contract zoning” in Minnesota, but two things should be noted: According to the Minnesota Land Planning Act, any rezoning of a parcel of land must be consistent with the comprehensive plan. Also, Minnesota uses Development Agreements which incorporate many of the features of “contract zoning”. An example is using Development Agreements for the development of toll facilities. MINN. STAT. §160.85, subd. 4 (2010). LUGs can also include language concerning development agreements in their subdivision ordinances requiring Development Agreements prior to approval of a final plat of a proposed subdivision. Ex. Crow Wing County, Minnesota (see below for reference) PETER K. BECK ET AL ., NATIONAL BUSINESS INSTITUTE , PRACTICAL GUIDE TO ZONING AND LAND USE LAW IN MINNESOTA 108-110 (2004); Minnesota Land Planning Act, Minn. Stat. § 473.858, subdiv. 1 (2010); Handbook for Minnesota Cities, LEAGUE OF MINNESOTA CITIES ~ Julian Gross, HANDBOOK: COMMUNITY BENEFITS AGREEMENTS: MAKING DEVELOPMENT PROJECTS ACCOUNTABLE (2005) 8 WEBSITE (December 2010), http://www.lmc.org/page/1/handbook-for-mn-cities-TOC.jsp; MINN. STAT. §160.85, subd. 4 (2010); Crow Wing County, Minn., Subdivision Ordinance, Art. 6.1 (Aug. 8, 2006) available at http://www.co.crowwing.mn.us/planning___zoning/docs/Subdivision_Ordinance_cleaned_up_9_23_10.pdf; Jed Burkett, League of Minnesota Cities Risk Management Information, Subdivisions, Plats, and Development Agreements-Oh My! (April 2008). A copy of this report is also available in the Client File at the William Mitchell Rosalie Wahl Legal Practice Center. BRIAN W. OHM, DEPARTMENT OF URBAN & REGIONAL PLANNING UNIVERSITY OF WISCONSINMADISON/EXTENSION, GUIDE TO COMMUNITY PLANNING IN WISCONSIN 2.5, 2.3 (1999) available at http://www.lic.wisc.edu/shapingdane/resources/planning/library/book/other/title.htm; Shelby D. Green, Development Agreements: Bargained-for Zoning That is Neither Illegal Contract nor Conditional Zoning, Pace Law Faculty Publications, Paper 432. (2004). available at http://digitalcommons.pace.edu/lawfaculty/432. Conditional Use Zoning Description of the Zoning Philosophy Goals of this Type of Zoning Examples of Classifications Pros of this Type of Zoning Cons of this Type of Zoning Does this Type of Zoning Support Sustainability? Zoning Code Example Citations & References Conditional uses are activities or uses allowed by a zoning ordinance if certain conditions detailed in the zoning ordinance are met. The LUG issues a conditional use permit (CUP) to the landowner if the landowner applying for the permit satisfies the conditions. CUPs are effective indefinitely as long as the conditions continue to be met. As long as the landowner can prove the conditions are met, the LUG must approve the application for a CUP. To allow a LUG to consider certain uses or activities that may be either essential or desirable to its community, but that are not allowed as a matter of right within one of the zoning districts. Likewise, a LUG can use a CUP to control certain uses or activities that might have a detrimental effect on its community. To provide flexibility within a zoning ordinance. Each LUG may include in its zoning ordinance a wide variety of uses or activities which are allowed with a conditional use permit. (Ex. Churches commonly must obtain a CUP in order to build a church in a residential area.) May provide flexibility within a zoning ordinance by allowing uses or activities under certain conditions that would otherwise not be allowed. Landowners might be able to use their land in the manner they desire. The jurisdiction must draft the conditions carefully to avoid unintended consequences which would have a negative impact on the area or community Granting too many CUPs could lead to inconsistency in the zoning of an area or community-This would give the appearance that everyone is not treated equally. CUPs could be used to promote sustainability by incorporating conditions that support sustainability. This includes using CUPs to promote more mixed use communities in areas traditionally limited to only one type of use while at the same time using the conditions to control the impact of the use on the community or environment. CUP’s would also be somewhat piecemeal as a developer may choose to create a permitted use rather than incorporating the conditions required for a conditional use permit. CUPs would likely be far less efficient in promoting sustainability goals overall in a jurisdiction. The majority of zoning ordinances in Minnesota allow for CUPs. Two examples are Cass County, Minnesota and the City of Lake Shore, Minnesota. (See below for references.) PETER K. BECK ET AL ., NATIONAL BUSINESS INSTITUTE , PRACTICAL GUIDE TO ZONING AND LAND USE LAW IN MINNESOTA 108-110 (2004); MINN. STAT. §462.3595 (2010); Handbook for 9 Minnesota Cities Ch. 14, LEAGUE OF MINNESOTA CITIES WEBSITE (December 2010), http://www.lmc.org/page/1/handbook-for-mn-cities-TOC.jsp; State of California Governor’s Office of Planning and Research, The Planner’s Training Series: The Conditional Use Permit (August 1997). available at http://ceres.ca.gov/planning/cup/condition.htm; CASS COUNTY, MINN., LAND USE ORDINANCE #2005-1, 16-19 (Amended by #2009-07) (Effective Jan. 10, 2010), available at http://www.co.cass.mn.us/ordinances/200501_landuse.pdf; City of Lake Shore, Minn., Land Use and Subdivision Ordinance 123-126 (Jul. 27, 2009), available at http://cityoflakeshore.com/media/Document_34.pdf. Modular/Composite Zoning Description of the Zoning Philosophy Goals of this Type of Zoning Examples of Classifications Pros of this Type of Zoning Cons of this Type of Zoning Modular or Composite Zoning is incorporated into an existing ordinance rather than used as a basis for a stand-alone zoning code. It creates separate zoning districts for fundamental elements such as permitted uses, dimensional standards, design standards, and development standards. Then those districts can be combined in different ways to create customized combinations. It is similar to Overlay Districts, discussed below under Smart Zoning. The difference is that Overlay Districts are adaptations or add-ons to an already existing code where Modular or Composite Zoning is incorporated into the code itself. Modular or Composite Zoning was used more before traditional Euclidean Zoning gained popularity. Today, some cities are using Modular or Composite Zoning to modernize their ordinances and add flexibility. Encouraging flexibility (can request a zoning amendment to a module, rather than the whole code). More closely tailoring zoning regulations to specific neighborhood character (can combine a use module that matches the character of an area with a size module that also matches). Similar to Euclidean but combines uses with other considerations such as densities and lot requirements into the classifications. For example, the module RS-2-2: R=Residential S= single family The first number indicates density=In this example the number 2 is associated with a medium density The second number indicates lot size=In this example, the number 2 is associated with a lot size of 6,000 sq. ft. May create predictability for neighborhoods and increase the detailed tailoring of a development to match the character of a neighborhood. May lessen need for zoning to drastically change over time because it specifically regulates the character of the neighborhood. May increase flexibility because there are many potential combinations to choose from to fit the municipality. May improve the effectiveness of zoning because it takes more than just use into account as a basis for the zoning classifications or districts May add quite a bit more complexity to zoning codes because there are so many combinations possible for the modules May require time consuming research to determine how to group modules. This in turn requires more staff and more public education. There may be a higher potential for unintended consequences. The modules may look good on paper but be impossible in practice. Complexity of modules may reduce public comprehension of the zoning ordinance and increase costs for a developer. 10 Does this Type of Zoning Support Sustainability? Zoning Code Examples Citations & References Modular or Character-based zoning may create uncertainty or lead to arbitrary application May be considered a misuse of discretion on the part of the LUGs depending on the state one is in. Yes, however, how successful it can be in achieving sustainability really depends on how the modules are set up and what they are designed to accomplish. Modules can be used to promote mixed use, livable communities but they just as easily be used in a way which separates uses and increases dependence on transportation. If used to promote sustainability Modular or Composite Zoning helps to value neighborhoods and communities by providing developers and landowners more options for aesthetics, for and design. Uses can be mixed where appropriate and communities can be laid out in a fashion that promotes the interaction of people with their communities. Compatible uses can potentially be placed more easily next to each other. This provides the opportunity to still separate incompatible uses but not have such strict use segregation as one sees under traditional Euclidean zoning. This in turn may promote development patterns that are less dependent on the need for private transportation and could encourage the provision of more public transportation options. City of Leander, Texas-Composite Zoning Ordinancehttp://www.leandertx.org/pdfs/CompositeZoningOrdinance06.02.2011.pdf; City of Boulder, Colorado-Revised Code Title 9, Land Use Regulationhttp://www.colocode.com/boulder2/title9.htm. Zoning Matters: The Official Site of the Philadelphia Zoning Code Commission, http://zoningmatters.org/facts/trends (last visited July 10, 2011); CLARION ASSOC., DUNCAN ASSOC., PHILADELPHIA: ZONING CODE COMMISSION, NEW PHILADELPHIA ZONING CODE: BEST PRACTICES REPORT 28-31 (June 2009); Lindsey E. Allen, Philadelphia Neighborhood Conservation: Using Public Policy to Protect Historic and Threatened Residential Neighborhoods (Jan. 1, 2010) (Unpublished M.A. Thesis, University of Pennsylvania) (available at http://repository.upenn.edu/hp_theses/137). Performance Based Zoning Description of the Zoning Philosophy Goals of This Type of Zoning Examples of Classifications Pros of this Type of Zoning Performance Based Zoning regulates the impacts of land uses by providing standards that limit certain nuisance-like activities that aren’t effectively regulated under traditional zoning. It is not really a true zoning type, rather an add-on to an existing code to allow for more controls over certain activities. The focus is on the effects and impacts of land use rather than on specific land use classifications. This is accomplished by including standards in codes or ordinances that address the operation (performance) of a use. These performance standards are often included in a zoning ordinance or can also be incorporated as part of a separate nuisance ordinance. Performance standards can also establish review parameters for proposed development projects. As a result, this would allow a developer to build almost any building as long as it meets the performance standards. Performance standards can be imposed during the permitting process or as a corrective action should a problem arise after the fact. Limit conflicting or incompatible uses; prevent one land use from adversely affecting adjacent uses; regulate the effects and impact of land use; promote environmental protection. Noise, vibration, smoke, dust, odor, glare, refuse or wastes, explosive or other hazards, traffic flow, access to light and air, parking, stormwater, open space protection, etc. Considers elements of municipal planning that are not generally addressed by traditional Euclidean zoning 11 Cons of this Type of Zoning Does this Type of Zoning Support Sustainability? Zoning Code Examples Citations & References Very flexible and rational when it is a major component of a zoning code. Developers and landowners have lots of options as long as they comply with the standards. Transparency and accountability-One can see what is expected of them and can readily be held accountable for compliance with the standards. May be used to include environmental protections and sustainability goals May be difficult to administer or enforce because it requires a higher level of discretionary activity on the part of the supervising authority which may not be a possible in smaller or economically challenged municipalities. Not yet widely adopted in the United States, however many of the zoning codes in the Region Five area have Performance Standards added in. Must be designed to address the real concerns of the community otherwise they are ineffective. With flexibility comes less certainty of requirements for the general public as well as the potential for arbitrary application or decisions on the part of the jurisdiction. Yes especially concerning the environment and attractiveness of an area to residents and businesses. This is because it takes into account many aspects that need to be considered to protect the environment and provide a clean and healthy area for the general public and businesses to use. Performance standards can be used to protect natural resources in addition to promote public health and welfare buy placing more controls on what are thought to be nuisance-like activities. Performance standards can also take into account roads and other infrastructure. Therefore they can both enhance the value of a community, and support existing communities. No municipality has an entirely performance based code, rather cities utilizing this zoning type have a hybrid code which includes Euclidean and perhaps even other zoning types rolled into one. A couple of Region Five examples are the City of Brainerd’s Zoning Code (http://www.ci.brainerd.mn.us/docs/zoningcode/) and the City of Lake Shore (http://cityoflakeshore.com/index.cfm?planning-zoning). Zoning Matters: The Official Site of the Philadelphia Zoning Code Commission, http://zoningmatters.org/facts/trends (last visited July 10, 2011); DOUGLAS R. PORTER ET AL ., THE URBAN L AND I NSTITUTE , FLEXIBLE ZONING: HOW IT WORKS 3-5, 8-10, 11-13, 95-96 (2d ed. 1991); VERMONT LAND USE EDUCATION AND TRAINING COLLABORATIVE , PERFORMANCE STANDARDS 21.1-21.4 (2007). http://www.vpic.info/pubs/implementation/. Form Based Zoning Description of the Zoning Philosophy Goals of this Type of Zoning Examples of Classifications Zoning that places more emphasis on regulating the form and scale of buildings and their placement along or within public spaces. It addresses the relationship between building facades and the public realm, the form and mass of buildings in relation to each other, and the scale and types of city blocks. It regulates the form land use might take rather than the type of land use. Form based zoning can be included into existing codes or it can stand alone as a new code to replace an old or outdated one. It is also sometimes associated with Smart Growth or Smart Zoning ideas. Regulations and standards are presented in diagrams and words and keyed to a regulatory plan that designates the appropriate form and scale of development rather than only distinguishing land use types. To curb urban sprawl, promote pedestrian safety and preserve the fabric of historic neighborhoods. Create a plan that reflects specific community intentions. To promote livable communities and reduce dependence on transportation. Standards to manage sidewalks and on-street parking. Building form standards, architectural or landscaping standards, signage standards. Environmental resource 12 Pros of this Type of Zoning Cons of this Type of Zoning Does this Type of Zoning Support Sustainability? Zoning Code Example Citations & References standards such as stormwater runoff. May have the potential to achieve predictable types or patterns of development Use of graphics makes Form Based Codes potentially easier to understand with often less need to argue interpretation. If properly written, form based codes may provide a clear form and intent which may make them more efficient to implement and administer. May help create aesthetics in neighborhoods and supports mixed uses and livable communities while reducing dependence on transportation. May encompass ideas that traditional zoning does not including a community vision of what the community may want. If well written, the details can be taken care of up front resulting in shorter processing time. May require fewer elements than traditional zoning because the focus is not on providing for every contingency rather focusing on what is most important. May focus on buildings rather than the environment Most codes are only as good as they are written. This is especially true of Form Based Codes because if the basics are not clear then it could create to confusion and misinterpretation. May requires the willingness of LUGs to think outside the box and to include the public’s interest May have up-front costs in getting the needed information and preparation for implementing the code. Can also be difficult to administer. May be seen as being too specific to an area especially in light of the costs of implementation. Yes, because it has the potential to embody the ideas of mixed use, livable communities, increase aesthetics and reduce dependence on transportation. This in turn may be attractive to both present and future residents and businesses. Form based codes also can be designed to support existing communities because the focus is less on density and use and instead placed on the form of the buildings. This may allow for the use of a building to change over time which encourages re-use of existing buildings. Attention to the form and design of buildings and streets and how they interact with the public realm may promote more community interaction and a sense of pride in one’s community. Form based codes also may promote livable or mixed use communities by incorporating them from the start in the code. Few cities have entirely form-based codes, but they are on the rise. Many cities utilize this zoning type by creating a hybrid code which also includes Euclidean and other zoning types. One of the most interesting examples is the Zoning and Design Rules for the Minnesota State Capitol Area (St. Paul, MN) (http://www.caapb.state.mn.us/PDF/CapitolZoningRulesfinal.pdf). Zoning Matters: The Official Site of the Philadelphia Zoning Code Commission, http://zoningmatters.org/facts/trends (last visited July 10, 2011); Form Based Codes Institute Website, http://www.formbasedcodes.org (Last visited July 11, 2011); Jason T. Burdette, Form-Based Codes: A Cure for the Cancer Called Euclidean Zoning? (Apr. 10, 2004) (Unpublished MUP thesis, Virginia Polytechnic Institute and State University) (available at http://scholar.lib.vt.edu/theses/available/etd-05122004-113700/); Phoenix Planning Commission Subcommittee, Form Based Zoning White Paper 1-12 (January 2006) (available at http://phoenix.gov/urbanformproject/wp10.pdf). 13 Zoning Tools That Support Smart Growth Description of the Zoning Philosophy This type of zoning encompasses several different techniques. (The main ones are included here) Goals of this Type of Zoning Examples of Classifications Floating Zones-There is an ordinance that describes the character and requirements for the zone’s establishment but the location is not designated until the zoning board decides a situation exists where they zone is needed. When the criteria are met, the floating zone ceases to float because it is adopted by a zoning amendment. Floating zones must either be permitted in the Master Plan or at least must not conflict with it. The criteria and standards must not be arbitrary or unreasonable. Cluster Zones-Permits residential uses to be clustered more closely together than normally allowed which leaves substantial land area to be devoted to open space. Planned Unit Developments (PUD’s)-Also appears as part of a Form-Based Zoning effort. A type of cluster/floating zone that allows for mixed uses in order to blend together a traditional downtown environment at a suburban scale. Some courts consider PUD’s to be an arbitrary and capricious abuse of the police power, however they have been adopted in many zoning codes in Minnesota. Incentive Zoning- This type of zoning offers an incentive to a developer who does something extra that is in the community's interest or promotes a public goal, but that is normally not required. In exchange, the developer is granted something or allowed to do something not otherwise permitted to do. Examples of these include increased density, increased size, more open space, and more affordable housing. It provides a reward based system to encourage development that meets established urban development goals. (Base scale of limitations + Reward scale to entice developers) Overlay Districts- Another tool used by some cities in Minnesota is the "overlay district" which allows for an additional layer of controls to address specific or neighborhood concerns. The overlay district tool allows for micro-management of an area, specifying additional controls in critical areas. This tool is used to manage parking (ex, City of St. Paul, State Fair Parking overlay district), preserve the character of an area (ex. City of Saint Paul, Shepard Davern Commercial and Residential Redevelopment area) or impose design and operation restrictions (ex. City of Minneapolis Zoning Code, Article III, Linden Hills neighborhood overlay district which prohibits four uses including drive-through facilities and video stores larger than 2,000 square feet and limits fast food restaurants) to address parking, vehicle speed, congestion or other concerns. To reform or replace an existing code. To accomplish conventional separation of uses and more environmentally responsible and sustainable neighborhood development. To concentrate growth in compact urban centers that promote walking. To reduce urban sprawl. To provide flexibility in zoning ordinances that is not accounted for through traditional Euclidean Zoning. Floating Zones-A LUG could have R-1, and R-2 zones which are traditional residential zones and are already defined and incorporated into the zoning map. The LUG could designate R-3 as a floating zone in the ordinance and leave the definition of the zone and placement on the zoning map to be added later by amendment when the need arose. PUD’s-A LUG could have a PUD defined in its zoning ordinance just like any other classification. Incentive Zoning- 1) Density bonus on a new development in exchange for the developer providing a certain community amenity. 2) A baseline height limit or Floor 14 Area Ratio (FAR) limit in exchange for the developer providing a public benefit of some kind. Overlay Districts-See above for examples. Pros of this Type of Smart Zoning concepts can be added in piecemeal to a code to enhance an already Zoning existing code. Smart Zoning can also be used to create an entirely new code. Has the potential to value long-range, regional considerations of sustainability over a short-term focus- Smart Zoning techniques have the potential to be used together to encompass planning issues from all angles. Has the potential to be highly flexible because a LUG can choose which of the Smart Zoning concepts to use to fit the needs of its jurisdiction or small areas within its jurisdiction. Cons of this Type Criticized because it may be difficult to administer due to the many possibilities and of Zoning components. May add a lot of complexity to zoning codes if too many techniques are used at once which in turn reduces public comprehension of the code and increase the cost to developers. May restrict property rights without accomplishing enough of its goals If not carefully crafted, these types of techniques may cause the problems they are trying to avoid Does this Type of Yes because these techniques are based off a school of thought known as Smart Growth Zoning Support which promotes sustainability at all levels of municipal planning and development, not Sustainability? just zoning. (See definitions above for more explanation of Smart Growth Principles.) The idea for Smart Growth is very similar to the goals and ideals Region Five is attempting to create in its HUD Sustainability Project. The more comprehensive the Smart Zoning, the more sustainability goals could be met. Zoning Code City of Northfield, MN (PUD, Floating)= http://www.ci.northfield.mn.us/assets/f/FINAL-Examples OF-LDC-4-7-2011.pdf (check to see if passed); City of Mankato, MN (PUD, Floating, Incentive)= http://www.mankato-mn.gov/CityCode/Chapter-10.aspx; City of Baxter , MN (Special Residential District that is a Cluster Zone)http://www.sterlingcodifiers.com/codebook/index.php?book_id=529 ; City of East Gull Lake, MN (Off Water Resort Overlay District which is a Floating Zone) http://www.eastgulllake.govoffice.com/vertical/Sites/%7BF4DD0CCB-CB33-4568-A2AD0D17E332F9F8%7D/uploads/%7BBC162176-EBE5-4724-AD69-4C700F687140%7D.PDF See also examples in description of Overlay Districts above Citations & Alejandro E. Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering References Equality, Community Involvement and Adaptive Planning in Land Use Decisions, 24 STAN. ENVTL. L.J. 17-19 (Installment 1, 2005); INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION, AN ICMA GREEN BOOK: LOCAL PLANNING C ONTEMPORARY PRINCIPLES AND PRACTICE 287-291, 298-307 (Gary Hack et al. eds., 2009); Chad D. Emerson, Making Main Street Legal Again: The SmartCode Solution to Sprawl, 71 MO. L. REV. 639-645 (2006); Seattle Planning Commission, Incentive Zoning in Seattle: Enhancing Livability and Housing Affordability White Paper 1-12 (Feb. 2007) (available at http://www.seattle.gov/planningcommission/docs/SPC_IncZon.pdf); Lindsey E. Allen, Philadelphia Neighborhood Conservation: Using Public Policy to Protect Historic and Threatened Residential Neighborhoods (Jan. 1, 2010) (Unpublished M.A. Thesis, University of Pennsylvania) (available at http://repository.upenn.edu/hp_theses/137); VERMONT LAND USE EDUCATION AND TRAINING COLLABORATIVE , PLANNED UNIT DEVELOPMENT 22.1-22.4 (2007); J. Spencer Clark, Rocking the Suburbs: Incentive Zoning as a Tool to Eliminate Sprawl, 22 BYU J. PUB. L. 258-260, 264-266 (2007); Andres Duany, Emily Talen, Making the Good Easy: The Smart Code Alternative, 29 FORDHAM L. REV. 1451-1453, PAUL BEYER, NEW YORK STATE OFFICE FOR THE AGING, LIVABLE NEW YORK RESOURCE MANUAL : 15 CLUSTER ZONING/CONSERVATION ORIENTED DEVELOPMENT II.2.b1-II.2.b3 (rev. ed. 2011). 16 APPENDIX B: The 11 Recommendations from the Feb. 9 to Mar. 10, 2010 LUG Interviews The following actions were recommended to further the goals of the Gull Lake Micropolitan Project: 1. Draft one subsurface sewage treatment system (SSTS) ordinance and one set of forms and procedures for all jurisdictions 2. Develop stormwater standards and best management practices (BMP’s) to be applied to new and existing development 3. Review and exchange planning terms and definitions 4. Complete an interconnected trail network around Gull Lake linked to the Paul Bunyan Trail—identify key properties and acquire or secure rights 5. Coordinate technical service--development review teams, technical standards, joint training 6. Create a regional future land use map to help guide a community-based conservation planning program 7. Develop a cooperative communication strategy—web sites, web newsletters, customer surveys 8. Merge selected administrative functions—zoning administration, septic system inspection, municipal sewage treatment system administration, maintenance 9. Develop and sign formal memorandums of agreement on what is agreed to--notify each other when you change things 10. Designate one organization to be in charge of holding us accountable -- schedule public events at which LGU’s report on their mutual progress. 11. Convene 4 taskforces—stormwater, wastewater, recreation and trails, and planning and development to develop implementation strategies and action plans (see Appendix D) John M. Sumption, Gull Lake Micropolitan Project: Local Unit of Government Survey Report 16 (March 29, 2010), http://www.explorebrainerdlakes.com/chambers/training/regional-planning.htm#Background (last visited Aug. 23, 2011). APPENDIX D: Model Subsurface Sewage Treatment System Ordinance DRAFT FOR REVIEW ORDINANCE # 1** SUBSURFACE SEWAGE TREATMENT SYSTEM (SSTS) ORDINANCE FOR _____________ COUNTY, MINNESOTA EFFECTIVE DATE: March 15, 2010 SSTS ORDINANCE FOR ___________ COUNTY, MINNESOTA TABLE OF CONTENTS TITLE ............................................................................................................................................................2 100 PURPOSE, AUTHORITY, AND GENERAL PROVISIONS ...............................................................2 101 PURPOSE .................................................................................................................................................................. 2 TITLE This ordinance shall be known as the ________________ COUNTY SUBSURFACE SEWAGE TREATMENT SYSTEMS ORDINANCE and herein referred to as the ordinance. 100 PURPOSE, AUTHORITY, AND GENERAL PROVISIONS 101 PURPOSE The purpose of the Subsurface Sewage Treatment System Ordinance shall be to provide minimum standards for and regulation of Individual Sewage Treatment Systems (ISTS) and Midsized Sewage Treatment Systems (MSTS) and septage disposal including the proper location, design and construction; their necessary modification and reconstruction; their operation, maintenance and repair to protect surface water and groundwater from contamination by human sewage and waterborne household and commercial wastes; to protect the public's health and safety, and eliminate or prevent the development of public nuisances pursuant to the authority granted under Minn. Stat. Chapters 115 and 145A, Minnesota Rules Chapter 7080, 7081, 7082, and 7083 as amended, and the ________________ County Comprehensive Land Use Plan that may pertain to sewage and wastewater treatment. 102 AUTHORITY The ________________ County Subsurface Sewage Treatment Ordinance is adopted pursuant to Minnesota Statutes, Sections 115.55, 145A.01 through 145A.08, and 375.51 or successor statutes, and also Minnesota Rules, Chapters 7080, 7081, and 7082 or successor rules. 103 JURISDICTION The jurisdiction of this ordinance shall include all lands in the unincorporated areas of ________________ County, Minnesota and all incorporated areas of ________________ County that do not administer a SSTS program with an ordinance at least as restrictive as this ordinance. 104 EFFECTIVE DATE This ordinance shall become effective on _________________________, 2010. 105 SCOPE 2 This ordinance shall regulate the design, construction, operation, repair, and maintenance of all ISTS and MSTS and the land application of septage. 106 OBJECTIVES The principal objectives of this Ordinance shall include the following: A. The protection of ________________ County’s lakes, wetlands, rivers and streams and supplies of groundwater essential to the promotion of public health, safety and welfare; the protection of the County’s environment and its socioeconomic growth and development of the County in perpetuity. B. Given the extensive resources and numerous supplies of surface water and groundwater and their susceptibility to contamination, regulation of proper SSTS construction, reconstruction, repair and maintenance and proper septage disposal is essential to prevent the entry and migration of contaminants, thereby ensuring the non-degradation of surface water and groundwater; C. The provision of establishing minimum standards for SSTS placement, design, construction, re-construction, repair and maintenance to prevent contamination and, if contamination is discovered, to identify and control its consequences and abate its source and migration. D. The provision of establishing minimum standards for septage removal, transport, treatment and disposal; E. The utilization of privy vaults and other non-water carried ISTS; F. The prevention and control of water-borne disease, lake degradation, groundwater related hazards, and public nuisance conditions through plan reviews, inspections, ISTS surveys and complaint investigation, as well as through technical assistance and education; G. The provision establishing enforcement of these requirements. 107 DEFINITIONS See ________________ County Environmental Definitions Ordinance #2007-04. If not specifically defined in the ________________ County Environmental Definitions Ordinance, terms used in this ordinance shall have the same meaning as provided in the standards adopted by reference. 108 FEES The County Board shall establish fees for permits and also for activities undertaken by the Department pursuant to this ordinance. Fees shall be due and payable at a time and in a manner to be determined by ________________ ESD. 109 CONFLICTING REGULATIONS Whenever any provision of this ordinance is found to be in direct conflict with the provisions of another County Ordinance, the ordinance containing the most restrictive requirements shall govern. 110 ABROGATION AND GREATER RESTRICTIONS It is not intended by this ordinance to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance imposes greater restrictions, 3 the provisions of this ordinance shall prevail. All other ordinances inconsistent with this ordinance are hereby repealed to the extent of the inconsistency only. 111 INTERPRETATION In their interpretation and application, the provisions of this ordinance shall be held to be minimum requirements and shall be liberally construed in favor of the County and shall not be deemed a limitation or repeal of any other powers granted by Minnesota Statutes. 112 SEVERABILITY If any section, clause, provision, or portion of this ordinance is adjudged unconstitutional or invalid by a court of law, the remainder of this ordinance shall not be affected and shall remain in full force. 113 REPEALOR The adoption of this ordinance repeals ________________ County Individual Sewage Treatment Systems Ordinance effective ____________________________. 200 ADMINISTRATION 201 COUNTY ADMINISTRATION A. The ________________ County Environmental Services Department shall administer the SSTS program and all provisions of this ordinance. B. County Duties and Responsibilities shall include but not be limited to the following; 1. Review all applications for ISTS and MSTS 2. Review all proposals for sites to land apply septage 3. Issue all permits required by this ordinance 4. Inspect all work regulated in this ordinance 5. Investigate all complaints regarding ISTS, MSTS, and septage disposal 6. Issue certificates of compliance or notices of noncompliance where applicable 7. Enact enforcement provisions of this ordinance as necessary 8. Refer unresolved violations of this ordinance to the County Attorney 9. Maintain current records for each permitted ISTS and MSTS including all site evaluation documents, design documents, inspection documents, and other applicable documents and also all approved septage sites. 10. Submit annual reports to MPCA as required. 202 STATE ADMINISTRATION When a single SSTS or group of SSTS under single ownership within one-half mile of each other, have a design flow greater than 10,000 gallons per day or has a measured daily flow for a consecutive seven day period which equals or exceeds 10,000 gallons per day, the owner shall make application for and obtain a State Disposal System permit from the MPCA. 203 CITIES AND TOWNSHIPS ADMINISTRATION Any jurisdiction within the County that regulates SSTS must comply with the minimum standards and requirements of this ordinance. 4 204 SSTS STAKEHOLDERS GROUP Any proposed amendment to this ordinance shall first be considered by the SSTS stakeholders group. The membership of this group is open to any interested person who requests to be a part of this group. ________________ County ESD shall maintain an interested persons list which includes all of the following groups of people who ask to be on the list; licensed SSTS professionals, city officials, township officials, state officials, and property owners in ________________ County. The SSTS stakeholders group is designed to be an informal committee of interested persons who will give input on issues at the county’s request. 205 CONFLICT RESOLUTION A. All professional conflicts between licensed professionals must be first brought to the Department. The Department will determine which professional judgment is correct. If a soils conflict exists and the professional does not agree with the Department’s determination, they may at their own expense, contract a board licensed professional soil scientist to determine who is correct. B. The department may refer any conflict to the SSTS Stakeholders Group for an opinion but the Department will make the final determination. C. Any conflict between a licensed professional and the Department shall be referred to the Stakeholders Group for an opinion. If the conflict is not resolved after receiving input from the SSTS Stakeholders Group, the professional may appeal the Department’s decision according to the appeals process established in the Land Use Ordinance. 300 PERMITTING A. It shall be unlawful for any person to construct, install, modify, repair, replace, or operate a SSTS without the applicable permit from ________________ County ESD. The issuing of any permit or variance under the provisions of this ordinance shall not absolve the applicant or property owner of responsibility to obtain any other required permit. B. All permit applications for SSTS must include a site evaluation, design, and management plan prepared by a state licensed designer or a signed winter agreement, the applicable fee, and any other applicable forms or information. Any application that does not include all of the required items will be considered incomplete and returned to the applicant. C. No permits will be issued to property owners or on property where there are unresolved violations unless that permit is part of an approved plan to resolve the violation. D. All SSTS permits issued prior to the effective date of this ordinance shall be effective for one year. E. All SSTS permits approved after the effective date of this ordinance shall be valid for a period of two years from the date of issuance. F. The construction card shall be posted on the property in such a location and manner so that the construction card is visible and available for inspection until construction is completed and inspected. 301 ACTIVITIES NOT REQUIRING A PERMIT Permits shall not be required for the repair or replacement of pumps, floats, electrical devices germane to the pump, replacement baffles, and general repair to inspection pipes and manholes. 302 APPEALS 5 The applicant or property owner can appeal the denial of a SSTS permit or an administrative decision in accordance with the procedures established in the ________________ County Land Use Ordinance for appeals of administrative decisions after all other conflict resolution procedures have been exhausted. 303 OPERATING PERMITS A. An operating permit shall be required for any of the following; i. Non-residential systems with a design flow of more than 500 gallons per day ii. systems with high strength waste iii. systems serving three or more connections iv. holding tanks v. all type III, IV and V systems vi. any system designed under chapter 7081 vii. any system deemed by the department to require operational oversight B. Operating permits shall be a signed agreement between the Department and the property owner and shall include monitoring, performance, mitigation, and reporting requirements. 400 INSPECTION REQUIREMENTS 401 GENERAL REQUIREMENTS A. Upon request of the Department, the applicant or owner shall allow access to enter a property at any reasonable time to inspect and/or monitor the SSTS system. B. No person shall hinder or otherwise interfere with the Department’s employees, or its agents, in the performance of their duties and responsibilities pursuant to this Ordinance. Refusal to allow reasonable access to the property by the Department shall be deemed a separate and distinct offense. 402 COMPLIANCE INSPECTIONS A. All compliance inspections must be conducted by a licensed inspector independent of the installer and the owner. B. A valid operating permit for a SSTS may be accepted in lieu of requiring a compliance inspection for property transfers and for permit applications to the Department. C. A signed winter agreement may be accepted in lieu of a compliance inspection for property transfers and for permit applications to the Department between November 15 and April 15. Failure to fulfill all of the obligations of the winter agreement shall be a violation of this ordinance. 402 INSPECTION REQUIREMENTS FOR NEW OR REPLACEMENT SSTS A. The applicant or owner shall request an inspection for all new or replacement SSTS at least 24 hours in advance of completing and covering up the SSTS. B. The construction of the SSTS shall be in accordance with the approved permit. Any significant alteration from the approved permit is required to be documented by a licensed designer and approved by ________________ ESD prior to installation. C. If the applicant or owner provides proper notice and the Department does not appear for an inspection within one hour after the designated time, the installation may be completed. The applicant or owner shall then file a signed as-built, including photographs of the system prior to covering, with the Department within 5 working 6 days. The as-built shall include a certified statement from the installer that the work was installed in accordance with the approved permit. D. A certificate of compliance will be issued by ________________ ESD after the Department receives reasonable assurance that the system was built in accordance with the applicable requirements as specified in the construction permit. E. A certificate of compliance issued for a new or replacement system shall be valid for a period of 5 years unless there is evidence of noncompliance. 403 INSPECTION REQUIREMENTS FOR EXISTING SSTS A. Compliance inspections are required for any of the following; a. At any time of replacement, alteration, or repair work which requires a permit, b. At transfer of property in accordance with this ordinance, c. At time of any permit applications with ________________ County ESD, d. At any time the department receives a complaint or other information regarding the failure of an SSTS, B. Within 30 days of completing a compliance inspection, the inspector shall submit a copy of the compliance inspection to the property owner and ________________ ESD. C. A certificate of compliance for existing systems shall be valid for a period of 3 years unless there is evidence of noncompliance. D. If a notice of noncompliance is issued for failure to be protective of groundwater, the system must be brought into compliance or it’s use discontinued within 12 months of the issuance of the notice of noncompliance. E. If the system is deemed to be an imminent threat to public health, the use of the system must discontinue immediately and a temporary plan to eliminate the threat to public health must be submitted to ________________ ESD within 48 hours of declaration of an imminent threat to public health. A plan to bring the SSTS into compliance must be submitted to the Department within 30 days of inspection or declaration of imminent threat to public health. The SSTS must be brought into compliance within 10 months of inspection or declaration of imminent threat to public health. 404 TRANSFER OF PROPERTY A. A. Any individual sewage treatment system located on real property lying within ________________ County shall be brought into compliance with the requirements of the current individual sewage treatment systems(ISTS) standard promulgated by the Minnesota Pollution Control Agency (MPCA) in Minn. Rules, Chapter 7080, hereinafter known as “Chapter 7080”, or the ________________ County Individual Sewage Treatment System Ordinance, hereinafter known as “the Ordinance”, whichever is most restrictive, upon conveyance of said real property. B. Prior to the conveyance of any real property, the seller shall disclose in writing to the buyer information about the status and location of all known ISTS on the property by delivering to the buyer either a sworn affidavit by the seller that no ISTS exists on the property to the best of their knowledge after diligent investigation, or a certificate of compliance or notice of non-compliance meeting all provisions of Chapter 7080 being the result of a compliance inspection conducted by a Minnesota state registered inspector holding a Designer I or Inspector certification. A certificate of compliance (certificate of compliance) or notice of noncompliance (notice of noncompliance) meeting all provisions of Chapter 7080 shall be submitted to the ________________ County Environmental Services Department and the seller within 30 days after the compliance inspection. 7 C. If the seller fails to provide a Certificate of Compliance, the seller shall provide the buyer sufficient security in the form of an escrow agreement to assure the installation of a complying ISTS. The security shall be placed in an escrow with the Department. The amount escrowed shall be equal to 125% of a written estimate to install a complying ISTS provided by a licensed and certified installer. The buyer may, by mutual written agreement with the seller, assume the responsibility to fund the escrow. The seller or buyer may, by written agreement, assign a third party to receive the disbursement from the escrow account. After a complying ISTS has been installed and a certificate of compliance issued, the ________________ County Environmental Services Department shall cause the escrow to be released to the maker of the escrow or their assigns. D. At the time of recording the conveyance of any real property within the unincorporated areas of ________________ County, the seller shall provide to the Department or the County Recorder one of the following: (1) a sworn affidavit by the seller certifying that no individual sewage treatment system exists on said property to the best of their knowledge after diligent investigation (affidavit), or (2) a Certificate of Compliance on forms approved by the Environmental Services Department (certificate), or (3) a packet consisting of the following documents to be referred to as an escrow packet: a) an escrow agreement as provided by subdivision “C” of this section, b) an attached written estimate to install a complying ISTS provided by a licensed and certified installer ; and, c) an attached ISTS permit for the installation of the ISTS (packet), or (4) an ISTS permit application and ISTS Compliance Inspection Agreement for conveyances which take place between November 15th and April 15th when compliance cannot be determined (winter agreement). Failure to comply with a requirement of this subdivision does not impair the validity of the deed. Failure to present to the Department or County Recorder an affidavit, certificate of compliance, escrow packet, or a winter agreement as outlined in this subdivision shall constitute a misdemeanor and shall be punishable as defined by Minnesota State Statutes. E. Liability for Failure to Disclose: Unless the buyer and seller agree to the contrary in writing before the closing of the sale, a seller who fails to disclose the existence of an individual sewage treatment system at the time of sale and knew or had reason to know of the existence of an individual sewage treatment system is liable to the buyer for costs relating to bringing the individual sewage treatment system into compliance with the ________________ County Individual Sewage Treatment System Ordinance, and reasonable attorney’s fees for collection of costs from the seller, if the action is commenced within two (2) years after the date the buyer closed the purchase of the real property where the individual sewage treatment system is located. Said civil liability shall in no way impair a criminal prosecution for the same violation. G. In accordance with section D, (4) above, all property conveyances subject to this ordinance occurring during the period between November 15th and April 15th when ISTS compliance cannot be determined due to frozen soil conditions shall require a winter agreement, which includes an application for an ISTS permit and an ISTS Compliance Inspection Agreement. The compliance inspection shall be completed by following June 1st by a state-licensed compliance inspector. If upon inspection the ISTS is found to be in compliance, the permit fee will be refunded. If upon inspection the system is found to be failed, an escrow agreement shall be established in accordance with section C, above, and the system shall be upgraded. 500 LICENSED PROFESSIONALS 501 LICENSE REQUIRED A. No person shall engage in the evaluation, inspection, design, installation, construction, alteration, extension, repair, maintenance, or pumping of a SSTS without first obtaining a license to perform such tasks from the MPCA except as exempted in 7083.0700 with the following exception; 8 a. No person or business may install a SSTS without first obtaining a license from the MPCA. 600 GENERAL REQUIREMENTS 601 ALL SSTS A. Any structure where sewage is generated and is served by a pressurized water supply system must be served by a compliant SSTS or a MPCA permitted facility. B. All permitted residential structures must be served by a compliant SSTS or a MPCA permitted facility. C. Sewage exiting a structure via plumbing must be treated by a compliant SSTS or a MPCA permitted facility. D. All sewage generated in the County shall be treated and dispersed by a SSTS that complies with the provisions of this ordinance or by a system that has been permitted by the MPCA 602 EXISTING SSTS WITHOUT PERMITS B. Existing SSTS with no permits of record shall require a permit and be brought into compliance with the requirements of this ordinance regardless of the date they were originally constructed. 600 SSTS CAPACITY EXPANSIONS C. Expansion of an existing SSTS must include any system upgrades that are necessary to bring the entire system into compliance with the provisions of this ordinance at the time of expansion. 600 BEDROOM ADDITIONS A. Any land use permit application for a proposed bedroom addition to a structure served by an SSTS must be accompanied by evidence that the SSTS is adequately sized to accommodate the bedroom addition, a plan to increase the capacity of the SSTS as required in 7080, or an application for an operating permit with plans showing how the system will be operated as a Type III system. B. The upgrades to the SSTS must be completed within 2 years of approval of the bedroom addition or the actual addition, whichever is first. 601 SYSTEM ABANDONMENT A. Any SSTS, or and component thereof, which is no longer intended to be used, must be abandoned in accordance with MN Rules, Chapter 7080.2500 602 CLASS V INJECTION WELLS A. All owners of new or replacement SSTS that are considered to be Class V injection wells, as defined in the Code of Federal Regulations, title 40, part 144, are required by the Federal Government to submit SSTS inventory information to the Environmental Protection Agency as described in CFR40 part 144. Further, owners are required to identify all Class V injection wells in property transfer disclosures. 603 SURFACE DISCHARGE PROHIBITED 9 A. It is unlawful for any person to construct, maintain, or use any SSTS that results in raw or partially treated sewage seeping to the ground surface or flowing into any surface water. Any surface water discharging system must be permitted by the MPCA. 700 SSTS TECHNICAL STANDARDS A. ________________ County hereby adopts by reference Minnesota Rules, Chapters 7080 and 7081 in their entirety as now constituted and from time to time amended, with the exception of those standards as identified in section 701 of this ordinance. This adoption does not supersede the County’s right or ability to adopt local standards that are in compliance with Minnesota Statute 155.55. B. Add in a reference to 503 regs? 701 AMENDMENTS TO ADOPTED STANDARDS A. All new residential structures shall be considered Class I structures. B. Only allow Class I or II sizing for replacement SSTS. C. The minimum size septic tank for structures with 5 bedrooms or less is 1500 gallons. D. Minimum size septic tank for additions of garbage disposals and sewage pumping shall be based on the minimum size septic tanks as required in 7080.1930. E. 702 DETERMINATION OF HYDRAULIC LOADING RATES AND SSTS SIZING A. The hydraulic loading rate for new SSTS permit applications submitted to ________________ ESD after the effective date of this ordinance shall be established by using either table IX or table IXa of MN Rules Chapter 7080.2150. 703 COMPLIANCE CRITERIA FOR EXISTING SSTS A. The required vertical separation distance as identified in Minnesota Rules Chapter 7080.1500 subpart 4, D, may be reduced by up to 15% for determination of compliance due to vertical separation. B. HOLDING TANKS A. Holding tanks shall be allowed. B. All holding tanks, regardless of date of installation, must be issued an operating permit and comply with the conditions required. Failure to comply with the provisions established in the operating permit shall constitute a violation of this Ordinance. C. The minimum tank size for a holding tank for a residential structure shall be 1,000 gallons. D. A method of metering the water used in the structure must be installed. 704 705 PRIVIES A. All applications to construct a privy must be accompanied by a design for that privy conducted by a licensed designer and shall include the following; i. A minimum of one soil boring if the privy is not vaulted. ii. The pit or vault shall have a minimum of 200 gallons of storage capacity or 25 cubic feet. iii. The placement or construction of privies must be inspected according to the provisions in this ordinance for new systems. 10 706 VARIANCES A. Variance requests for reduced setbacks from a SSTS to property lines without the neighbor’s consent and also for reduced setback to protected waters that results in a SSTS being located within 75 feet of a protected water shall be heard by the ________________ County PAC/BOA. B. All other SSTS related variance requests may be decided by ________________ ESD as an administrative decision or referred to the ________________ County PAC/BOA. 800 SEPTAGE MANAGEMENT All septage disposal sites shall be preapproved by the Department. 801 Separation Requirements For Land Application Of Septage Domestic septage disposal and treatment standards shall comply with U.S. Environmental Protection Agency rules as found in 40 CFR Part 503 entitled "Standards for the Use or Disposal of Sewage Sludge," and Minnesota Pollution Control Agency guidelines as stated in " Land Application of Septage. " A. The land spreading site shall be located such that the following minimum separation distances are maintained: 1. 2. 4. 5. Private water wells Municipal well Occupied residential structure Residential Districts, Commercial Developments,Recreational areas 6. Property lines 7. Public Road Right-of-Ways 8. OHW of Protected Waters 200 feet 1000 feet 600 feet* 600 feet 50 feet 50 feet 200 feet B. Separation distances from protected waters, wetlands, intermittent streams, and agricultural drainage ditches shall be observed as follows: SITE SLOPE 0-2% 2-6% 6-12% SEPARATION DISTANCES FROM PROTECTED WATERS May-Oct Nov-April 200 ft. 600 ft. 400 ft.* not allowed 600 ft.** not allowed All of the above setbacks must be doubled if the site drains to the protected water. SITE SLOPE 0-2% 2-6% 6-12% SEPARATION DISTANCES FROM ALL OTHER UNCLASSIFIED WATERS May-Oct Nov-April 200 ft.* 600 ft. 400 ft.* not allowed 300 ft.** not allowed *--Separation distances may be reduced by 50% if septage is injected. **-- Land Spreading not allowed without injection. 11 Surface application of septage on frozen soil is prohibited unless slopes are 2% or less. 802 Land Suitability For Land Application Of Septage A. Soil Suitability To be suitable for land spreading, the soil must meet the following criteria: 1. Have medium or fine surface textures (no sandy or peaty surface textures). 2. Have a 3 foot vertical separation distance as outlines in chapter 7080.0110. 3. Have 6 inches of available water holding capacity between the application depth and redoxomorphic features. 4. Have at least one horizon in the upper 5 feet that has a permeability of less than 6 inches per hour. 5. Have surface permeabilities slower than 20 inches/hour or faster than 0.2 inch/hour. 6. Have a slope of 12% or less. B. Physical Criteria 1. Septage must not be spread where a monitor well or designated monitor well exceeds 10 ppm nitrate count. 2. Septage shall be land spread on cropland in such quantity so as not to exceed the agronomic rates as approved by the Agency and Department. 3. Septage shall be spread evenly across an approved land spreading site and not concentrated. 4. Septage land spreading sites must not be used for growth of crops,which will be consumed directly by humans for three years after the last septage application. The grazing or harvesting of foraged materials on septage land spreading sites must not occur for at least three weeks after the last spreading date. 5. Septage shall be incorporated as necessary to prevent nuisance conditions and excessive accumulation of septage solids on the soil surfaces. 6. In order to comply with the requirements for pathogen reduction and vector attraction reduction, the pH of septage to be land applied shall be raised and held at 12 or more for a minimum of 30 minutes. All other methods of pathogen reduction and vector attraction reduction methods must be approved in writing by the Department prior to land application. C. Daily Liquid Loading Limits Soil Texture Coarse Medium Fine Gallons/Acres/Day 25,000 15,000 10,000 D. Annual Nitrogen Application for Non-Cropped and Non-Harvested Land Soil texture Nitrogen 1. High Density Ibs. per acre Gal/acre/Year Surface applied Vegetative cover -50% cover 12 Coarse Medium Fine 75 100 125 34,000 49,000 65,000 2. Low Density Vegetative Cover- 25-50% Cover Coarse Medium Fine 50 75 100 25,000 34,000 49,000 3. Fallow Land - 25 % Cover Coarse Medium Fine 0 50 75 0 25,000 34,000 803 Additional General Requirements A. Pumpers shall obtain approval from the owner of the land area used for septage disposable. B. Disposal of septage must meet all applicable federal, state, county or local zoning regulations. C. Disposal of septage within incorporated cities requires prior written approval from the city. C. Alternative Disposal- Any alternative disposal of septage must meet the applicable standards of the Department and the Agency. Any alternative disposal requires written approval form the Department prior to the disposal. 900 ENFORCEMENT A. Any person, firm, agent, or corporation who violates any provisions of this ordinance, or who fails, neglects, or refuses to comply with the provisions of this ordinance, including violations of conditions and safeguards, or who knowingly makes any material false statement or knowing omission in any document required to be submitted under the provisions hereof, shall be guilty of a misdemeanor and upon conviction thereof, shall be punishable as defined by Minnesota State Statutes. Each day that a violation exists shall constitute a separate offense. B. ________________ ESD and the ________________ County Sheriff shall have the power to enforce this ordinance by issuing citations for criminal violations of this ordinance upon the owner of a property and/or their agent. C. ________________ County, through ________________ ESD may sue for injunctive relief on any violation, including restoration of the premises to its condition existing prior to the violation. 901 DUTY TO ENFORCE It shall be the duty of the County Attorney and County Sheriff to perform such duties as may be necessary to enforce the provisions of this ordinance. 13 902 PROSECUTION A. ________________ ESD may enforce the provisions of this ordinance whether through criminal prosecution, civil remedy, or both. B. Utilization of a civil remedy shall not prevent a criminal prosecution for the same violation. C. A criminal prosecution shall not be a bar to a civil remedy. 903 CEASE AND DESIST A. Cease and desist orders may be issued when ________________ ESD has probable cause that an activity regulated under this or any other County ordinance is being or has been conducted without a permit, in violation of a permit, or in violation of standards enacted in County ordinances where permits are not required. When work has been stopped by a cease and desist order, it shall not again be resumed until the reason for the work stoppage has been completely satisfied, any administrative fees paid, and the cease and desist order lifted. 904 ADMINISTRATIVE FEES AND RESTORATION A. Any application for a permit that is made after the work has commenced and which requires a permit or is done in violation of a permit shall be charged an additional administrative fee. In addition, ________________ ESD may require correction and/or restoration of the property to its original state should the application for a permit be denied or of the action permitted does not include all or part of the work commenced prior to approval of said permit. 905 FINANCIAL ASSURANCE A. ________________ ESD may require a surety bind, cash escrow, or letter of credit prior to the issuing of any permit or initiation of work on the proposed improvements or development. Said security shall be irrevocable, conditioned in favor of ________________ County, and shall guarantee conformance and compliance with the conditions of the permit or variance and the Ordinance of the County. The amount of the bond may be set up to 150% of the estimated cost of soil stabilization, water quality protection, and pollution control measures. 906 STATE NOTIFICATION OF VIOLATIONS A. Any inspection, design, construction, alteration, or repair of a SSTS or any pumping and disposal of septage done in violation of the provisions of this Ordinance shall be cause for notification to the MPCA. 1000 ADOPTION THE ________________ COUNTY SUBSURFACE SEWAGE TREATMENT SYSTEM ORDINANCE IS HEREBY ADOPTED BY THE ________________ COUNTY BOARD OF COMMISSIONERS ON THIS 14 Day of , 2010. . Chairman, ________________ County Board of Commissioners ATTEST: . EFFECTIVE DATE: , 2010. 15 APPENDIX C: Common Definitions List Gull Lake Micropolitan Project COMMON DEFINITIONS LIST Abandoned Building: A building as defined hereafter on public or private property which no longer serves a practical use and is considered a safety hazard in the opinion of the Zoning Administrator due to its location or structural condition. Access lot: A parcel of land that provides access to public waters, including controlled access lots and alternative access lots. Access Path: an area designated to provide ingress and egress to public waters. Accessory Structure: means any building, structure, or improvement subordinate to and on the same lot as the principal structure or use, including sheds, storage shelters, gazebos, hot tubs, swimming pools, pole buildings, detached garages, decks, patios, and similar structures. Accessory Use: A use naturally and normally incident and subordinate to the main use of the premises. An accessory use cannot, by definition, exist without the establishment of a primary use. Addition: A physical enlargement of an existing structure, or an increase in living space. Agent: Any person acting on behalf of a landowner in dealing with activities under the jurisdiction of the Ordinance, including but not limited to realtors, contractors or attorneys. Agricultural Use: has the meaning as defined in Minnesota Statutes, chapter 40A. Airport: Any premises used or intended for use for the landing and taking off of aircraft including any structures used or intended for use for aircraft services. Alternative Access Lot: an access lot that provides access to public waters for owners of riparian lots within subdivisions. Animal, Domestic: Any animals commonly kept as household pets such as dog or cats. Animal, Farm: Cattle, hogs, horses, sheep, goats, chickens and other animals commonly kept for food production or other purposes. Animal, Wild or Exotic: Any animal not normally considered domesticated which, because of its size, vicious nature or other natural characteristics would constitute a dangerous threat to human life, property or domestic animals including but not limited to venomous reptiles; bird species illegal to own under federal or state law; and mammals including but not limited to lions, tigers, jaguars, leopards, cougars, and bears. APPENDIX C: Common Definitions List Animal Unit: A unit of measure to compare differences in the production of animal wastes which has as a standard the amount of waste produced on a regular basis by a slaughter steer or heifer. Animal units are calculated by dividing the average animal weight for a species by one thousand (1,000) pounds. For purposes of these regulations, the following equivalents apply: Animal Unit (A.U) 1 mature dairy cow 1.4 1 slaughter steer or heifer 1.0 1 horse 1.0 1 swine over 55# 0.4 1 sheep 0.1 1 swine under 55# 0.05 1 turkey 0.018 1 chicken 0.01 Apartment: A room or suite of rooms that is designed for, intended for, or occupied as a residence by a family or individual, and is equipped with sanitary facilities. Auto or Motor Vehicle Reduction Yard: A lot or yard where one (1) or more unlicensed motor vehicles, or the remains thereof, are kept for the purpose of dismantling, wrecking, crushing, sale of parts, sale as scrap, storage, or abandonment. (See also Salvage yard). Basement: The space below the first story of a structure which is greater than four (4) feet in height. Bed and Breakfast Residence: has the meaning given under chapter 2400. ["Bed and breakfast residence" means a dwelling in which four or fewer guest rooms are rented within the principal structure on a nightly basis for less than one week and where at least one meal per day is provided in connection with the sleeping accommodations. The operator of the residence lives on the premises or in an adjacent premise] Bedroom: A room or unfinished area within a dwelling that might reasonably be used as a sleeping room as determined by the local unit of government. Best Management Practices: Erosion and sediment control and water quality management practices that are the most effective and practical means of controlling, preventing, and minimizing degradation of surface water, including avoidance of impacts, construction-phasing, minimizing the length of time soil areas are exposed, prohibitions, and other management practices that are adopted by Cass County. Bluff: means a sloped topographic feature having all of the following characteristics: A. part or all of the feature is located in a shoreland area; B. the slope rises at least 25 feet above the ordinary high water level of the waterbody or toe of the bluff. For purposes of this subpart, "toe of the bluff" means the lower point of a horizontal ten-foot segments with an average slope exceeding 18 percent; and C. the grade of the slope from the toe of the bluff to the top of bluff averages 30 percent or greater. For purposes of this subpart, "top of the bluff" means the higher point of a horizontal 10-foot segment with an average slope exceeding 18 percent. APPENDIX C: Common Definitions List Bluff, Toe: For the purpose of measuring setbacks, the point at the bottom of a bluff that is the lower end of a 10 foot segment, measured on the ground, which has an average slope of 18 percent, or is the OHW, whichever is higher. Bluff, Top: For the purpose of measuring setbacks, the point at the upper end of a bluff that is the upper end of a 10 foot segment, measured on the ground, which has an average slope of 18 percent. Bluff Impact Zone: means a bluff and land located within 20 feet of a bluff. Boathouse: has the meaning given under Minnesota Statutes, section 103G.245. [ "boathouse" means a structure or watercraft that is moored by spuds, cables, ropes, anchors, or chains that may be intended for habitation and has walls, a roof, and either an open well for boats or a floor from wall to wall and does not include watercraft that are designed and operated as motorboats;] Boat Launch: is a ramp, road, or other conveyance which allows the launching and removal of a boat with a vehicle and trailer. Boat Storage Structure: has the meaning given under Minnesota Statutes, section 103G.245. ["boat storage structure" means a structure that is used for storing boats or float planes] Buffer: means land that is used to protect adjacent lands and waters from development and more intensive land uses. The land is kept in a natural state of trees, shrubs, and low ground cover and understory of plants and functions to filter runoff, control sediment and nutrient movement, and protect fish and wildlife habitat. In areas of agricultural use, the land may be used for less intensive agricultural purposes provided its function as a buffer remains intact. Buildable Area: means the area upon which structures may be placed on a lot or parcel of land. Buildable area excludes areas to meet setback requirements, bluffs, areas with slopes greater than 25 percent, rights-of-way, historic sites, wetlands, designated floodways, land below the ordinary high water level of public waters, and other unbuildable areas. In wild, scenic, or recreational shorelands, buildable area also excludes areas with slopes greater than 18 percent. Building: means any structure with a roof and walls used or intended for supporting or sheltering any use or occupancy. Building Line:A line parallel to a lot line or the Ordinary High Water Level at the required setback beyond which a structure may not extend. Campground: means a development that is used for the purpose of providing sites for nonpermanent overnight use by campers using tents, trailers, recreation camping vehicles, or other temporary shelters. Certificate of Compliance: has the meaning given under chapter 7080 for subsurface sewage treatment systems. ["Certificate of compliance" means a document, written after a compliance inspection, certifying that a system is in compliance with applicable requirements at the time of the inspection.] Clear-Cutting: means a forest management method for regeneration or harvest that removes essentially all trees in one operation. APPENDIX C: Common Definitions List Clustering or Clustered: means a development pattern and technique whereby structures or building sites are arranged in close proximity to one another in groups. Commercial Use: means the principal use of land or buildings for the sale, lease, rental, or trade of products, goods, and services. Commissioner: means the commissioner of natural resources. Common Interest Community: has the meaning given under Minnesota Statutes, chapter 515B. ["Common interest community" or "CIC" means contiguous or noncontiguous real estate within Minnesota that is subject to an instrument which obligates persons owning a separately described parcel of the real estate, or occupying a part of the real estate pursuant to a proprietary lease, by reason of their ownership or occupancy, to pay for (i) real estate taxes levied against; (ii) insurance premiums payable with respect to; (iii) maintenance of; or (iv) construction, maintenance, repair or replacement of improvements located on, one or more parcels or parts of the real estate other than the parcel or part that the person owns or occupies. Real estate which satisfies the definition of a common interest community is a common interest community whether or not it is subject to this chapter. Real estate subject to a master association, regardless of when the master association was formed, shall not collectively constitute a separate common interest community unless so stated in the master declaration recorded against the real estate pursuant to section 515B.2-121, subsection (f)(1).] Common Open Space: means a portion of a development that: A. is permanently set aside to preserve elements of the natural landscape for public or private use; B. will not be developed or subdivide; and C. is generally owned in common by the individual owners in the development or by a permanently established management entity. Comprehensive Plan: Also referred to as Community Plan. A compilation of policy statements, goals, standards and maps for guiding the physical, social and economic development, both private ad public, of the City and its environs and may include, but is not limited to, the following items: statements of policies, goals, standards, a land use plan, a community facilities plan, a transportation plan and recommendations for plan execution. Conditional Use: has the meaning given under Minnesota Statutes, chapters 394 and 462. ["Conditional use" means a land use or development as defined by ordinance that would not be appropriate generally but may be allowed with appropriate restrictions as provided by official controls upon a finding that (1) certain conditions as detailed in the zoning ordinance exist, and (2) the use or development conforms to the comprehensive land use plan of the county and (3) is compatible with the existing neighborhood.] Condominium: has the meaning given under Minnesota Statutes, chapter 515B. ["Condominium" means a common interest community in which (i) portions of the real estate are designated as units, (ii) the remainder of the real estate is designated for common ownership solely by the owners of the units, and (iii) undivided interests in the common elements are vested in the unit owner] Conservation Easement: has the meaning given under Minnesota Statutes, chapter 84C. ["Conservation easement" means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or APPENDIX C: Common Definitions List water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property] Controlled Access Lot: is an access lot that provides access to public waters for owners of nonriparian lots within a conventional subdivision. Conventional Subdivision: means a pattern of subdivision development that is characterized by lots that are spread regularly throughout a parcel in a lot and block design. Cooperative: has the meaning given under Minnesota Statutes, chapter 515B. [ "Cooperative" means a common interest community in which the real estate is owned by an association, each of whose members is entitled by virtue of the member's ownership interest in the association to a proprietary lease.] Crawl Space: has the meaning given under Minnesota Rules, Chapter 1309. [CRAWL SPACE. Areas or rooms with less than 7 feet (2134 mm) ceiling height measured to the finished floor or grade below.] Deck: means a horizontal, unenclosed above ground level structure with or without attached railings, seats, trellises, or other features, attached or functionally related to a principal use or site. Dock: means a narrow structure extending waterward from the shoreline intended for ingress and egress for moored watercraft or seaplanes or to provide access to deeper water for swimming, fishing, or other water-oriented recreational activities. Duplex: A dwelling structure on a single lot, having two units being attached by common walls and each unit equipped with separate sleeping, cooking, eating, living and sanitation facilities. Dwelling site: means a designated location for living accommodations by one or more persons using temporary or movable shelter, including camping and recreational vehicle sites. Dwelling Unit: means any structure or portion of a structure, or other shelter designed as short- or long-term living quarters for one or more persons, including rental or timeshare accommodations such as motel, hotel, and resort rooms and cabins. Easement: An acquired legal right for the specific use of land owned by others. Essential Services: means underground or overhead gas, electrical, steam, or water distribution systems and collection, communication, supply, or sewer systems, including poles, wires, mains, drains, pipes, conduits, cables, fire alarm boxes, traffic signals, hydrants, or other similar equipment and accessories in conjunction therewith. Essential services does not including buildings, wastewater treatment works as defined in Minnesota Statutes, section 115.01, or electrical generation and transmission services. Extractive Use: means the use of land for surface or subsurface removal of sand, gravel, rock, industrial minerals, other nonmetallic minerals, and peat not regulated under Minnesota Statutes, sections 93.44 to 93.51. Feedlot: A lot or building or combination of lots and buildings intended for the confined feeding, breeding, raising, or holding of animals and specifically designed as a confinement area in which manure may accumulate, or where the concentration of animals is such that a vegetative cover APPENDIX C: Common Definitions List cannot be maintained within the enclosure. Pastures shall not be considered animal feedlots under these parts. Filling: An act of depositing any earthen material. Flood: means a temporary rise in stream flow or stage which results in inundation of the areas adjacent to the channel. Flood Frequency: means the average frequency, statistically determined, for which it is expected that a specific flood stage or discharge may be equalled or exceeded. By strict definition, such estimates are designated "exceedence frequency," but in practice the term "frequency" is used. The frequency of a particular stage or discharge is usually expressed as having a probability of occurring once within a specified number of years. See also recurrence interval in subpart 20. Flood Fringe: means that portion of the floodplain outside of the floodway. Floodplain: means the areas adjoining a watercourse which has been or hereafter may be covered by the regional flood. Floodproofing: means a combination of structural provisions, changes or adjustments to properties and structures subject to flooding primarily for the reduction or elimination of flood damages to properties, water and sanitary facilities, structures, and contents of buildings in a flood hazard area. Floodway: means the channel of the watercourse and those portions of the adjoining floodplains which are reasonably required to carry and discharge the regional flood. Forest Management or Silviculture: means the art and science of controlling the establishment, growth, composition, health, and quality of forests and woodlands to meet the multitude of purposes and values of landowners and society on a sustainable basis. Fractional Ownership Property: means the division of any real property into portions or shares. Shared or joint ownership of the property and its deed entitle shareholders to certain usage rights. Real estate that is subject to an instrument which obligates several persons owning the same described parcel of the real estate and occupying a part of the real estate pursuant to a proprietary lease or covenant for use, by reason of their ownership or occupancy, to pay for real estate taxes levied against, insurance premiums payable with respect to, maintenance of, or construction, maintenance, repair or replacement of improvements is fractional ownership property. Garage: An accessory structure which is only intended and used for vehicles and storage, and not a residential structure as defined herein. Gazebo: A freestanding accessory structure with no kitchen, sleeping, sanitary facilities or pressurized water intended as weather and insect protection for such activities as picnicking and lake viewing. Group Care Facilities: A facility which provides residential services for individuals that are handicapped, aged, disabled or undergoing rehabilitation. This includes uses such as homes for the physically handicapped, mentally retarded, chemically dependent, foster children, maternity shelters and half-way houses. APPENDIX C: Common Definitions List Hardship: has the meaning given under Minnesota Statutes, chapters 394 and 462. Height of Structure: means the vertical distance between the highest adjoining ground level at the building or ten feet above the lowest ground level, whichever is lower, and the highest point of a flat roof, the highest gable of a pitched or hipped roof, or the highest point of structure. Home-based Business: means an occuptation or business conducted by a resident within an existing dwelling or accessory structure on the property when the business is limited in extent and incidental or secondary to use of the dwelling for residential purposes and does not change the residential character of the dwelling unit or site. Impervious Surface: means a constructed hard surface that either prevents or retards the entry of water into the soil and causes water to run off the surface in greater quantities and at an increased rate of flow than prior to development, including rooftops; decks; sidewalks; patios; parking lots; storage areas; concrete, asphalt or gravel driveways; and other similar surfaces. Industrial Use: means the use of land or buildings for the production, manufacture, warehousing, storage, or transfer of goods, products, commodities, or other wholesale items. Institutional Use: means a use that provides a public service and is operated by a government, public or private utility, public or private school or college, tax-exempt organization, or a place of religious assembly. Public service includes public agency, public safety and emergency services; essential and utility services; cultural, service and religious facilities; public or private health facilities; or other similar services. Intensive Vegetation Clearing: means substantial removal of trees or shrubs in a contiguous patch, strip, row, or block. Interim Use: has the meaning given under Minnesota Statutes, chapters 394 and 462. Lot: means a parcel of land designated by plat, metes and bounds, registered land survey, auditors plat, or other accepted means and separated from other parcels or portions by said description for the purpose of use, occupancy, sale, lease, or separation. Lot Area: Square footage or acreage included within the boundaries of a parcel or platted lot. Lot Width: means the shortest distance between lot lines measured at both the ordinary high water level and at the required structure setback from ordinary high water level for riparian lots. For nonriparian lots, the lot width is the shortest distance between side lot lines as measured at the midpoint of the longest axis of the lot. Lowest Floor: means the lowermost floor of the lowest enclosed area, including basement and crawl space. An unfinished or flood resistant enclosure, used solely for parking of vehicles, building access, or storage in an area other than a basement or crawl space area, is not considered a building’s lowest floor. Maintenance: The normal upkeep of a structure including the replacement of windows, siding, roofs, nonbearing walls or interior remodeling that does not expand the footprint of the existing structure, add volume to the usable living space or intensify a non-conforming use. APPENDIX C: Common Definitions List Manufactured Home Park.: has the meaning given under Minnesota Statutes, chapter 327. ["Manufactured home park" means any site, lot, field or tract of land upon which two or more occupied manufactured homes are located, either free of charge or for compensation, and includes any building, structure, tent, vehicle or enclosure used or intended for use as part of the equipment of the manufactured home park] Marina: means a commercial mooring facility. Mining Operation: means the removal from the land of stone, sand and gravel, coal, salt, iron, copper, nickel, granite, petroleum products, or other material for commercial, industrial, or governmental purposes. Motel: A building containing guest rooms or units, each of which has a separate entrance directly from the outside of the building, or corridor and which is designed, used or intended to be used primarily for the accommodation of transient guests. Natural Drainageway: All land surface areas which by nature of their contour or configuration, collect, store and channel surface or runoff water. Natural State: means a state where: A. vegetation exists in a wild state; B. the condition of the ground and shrub layers and floristic composition of the plant community is substantially unaltered by humans; C. restoration has been consistent with commissioner guidelines or local government approved plans; or D. vegetation has been unaltered for a least one growing season. Nonconformity: has the meaning given under Minnesota Statutes, chapters 394 and 462. "Nonconformity" means any legal use, structure or parcel of land already in existence, recorded, or authorized before the adoption of official controls or amendments thereto that would not have been permitted to become established under the terms of the official controls as now written, if the official controls had been in effect prior to the date it was established, recorded or authorized.] Non-Riparian Lot: is a lot that does not abut public waters. Nuisance: By authority and direction of Minnesota Statute, 1980, Section 412.221, Subdivision 23 and 24; and Section 429.31, Subdivision 8; and Section 145.22 and 145.23, nuisance is anything that interferes with the use or enjoyment of property, endangers personal health or public safety, or is offensive to the senses such as excessive smoke, odor, noise, heat, vibration, glare, traffic generation, visual impact and other similar interferences or offenses. Open Burning: Burning of any matter whereby the resultant combustion products are emitted directly to open atmosphere without passing through a stack, duct or chimney that meets MPCA standards. Open Space, Common: A portion of a development site that is permanently set aside to preserve unprotected elements of the natural landscape and to provide areas for public or private use. Common open space may be held in common ownership by all individual owners within a development or some other permanently established management entity, and is encumbered by a conservation easement that prohibits development and prescribes allowable uses. APPENDIX C: Common Definitions List Open Space Recreational Uses: means recreation use particularly oriented to and utilizing the outdoor character of an area; including hiking and riding trails, primitive campsites, campgrounds, waysides, parks, and recreation areas. Ordinary High Water Level: has the meaning given under Minnesota Statutes, chapter 103G. Owner: Any individual, firm, association, syndicate, partnership, public or private corporation, trust or other legal entity having sufficient property interest in a property to commence and maintain proceedings under this Ordinance, or the owner of record or the person or persons who own a facility or part of a facility. Park Trailer: has the meaning given under Minnesota Statutes, chapter 168. ["Park trailer" means a trailer that: (1) exceeds 8-1/2 feet in width in travel mode but is no larger than 400 square feet when the collapsible components are fully extended or at maximum horizontal width; and (2) is used as temporary living quarters. "Park trailer" does not include a manufactured home.] Patio: is a constructed hard surface located at ground level. Permitted Use: A land use conforming to the character of a zoning district which is permitted by ordinance requiring only a zoning permit issued by the Zoning Administrator. Person: An individual, firm, partnership, association, corporation, company, including any trustee receiver, assignee or other similar representative thereof. Planned Unit Development: means a method of land use or development characterized by a unified site design for a number of dwelling units or dwelling sites on a parcel, whether for occupancy, sale, rent, or lease, and a mix of structure types and land uses. Planned unit developments may be organized and operated as residential, mixed-use development, or commercial enterprises including individual dwelling units, townhouses, condominiums, time-share condominiums, cooperatives, common interest communities, fractional ownership properties, campgrounds, youth camps, apartment buildings, recreational vehicle parks, manufactured home parks, or park trailers or any combination of these. Planned unit development includes any conversion of existing structures and land uses that utilize this method of development described in this subpart. Plat: has the meaning given under Minnesota Statutes, chapters 505 and 515B. ["Plat" means a delineation of one or more existing parcels of land drawn to scale showing all data as required by this chapter, depicting the location and boundaries of lots, blocks, outlots, parks, and public ways.] Preliminary Plat or Plan: A plan prepared in accordance with the Subdivision Ordinance depicting the proposed subdivision of property by Final Plat or Final Floor Plan. Primitive Campsite: means an area that consists of individual remote campsites accessible only by foot or water. Principal Use: The main use of land or buildings as distinguished from subordinate or accessory use. A "principal use" may be either permitted or conditional. APPENDIX C: Common Definitions List Public Waters: means any waters as defined in Minnesota Statutes, section 103G.005, subdivisions 15, and public water wetlands as defined under Minnesota Statutes, section 103G.005, subdivision 15a. [a) "Public waters" means: (1) water basins assigned a shoreland management classification by the commissioner under sections 103F.201 to 103F.221; (2) waters of the state that have been finally determined to be public waters or navigable waters by a court of competent jurisdiction; (3) meandered lakes, excluding lakes that have been legally drained; (4) water basins previously designated by the commissioner for management for a specific purpose such as trout lakes and game lakes pursuant to applicable laws; (5) water basins designated as scientific and natural areas under section 84.033; (6) water basins located within and totally surrounded by publicly owned lands; (7) water basins where the state of Minnesota or the federal government holds title to any of the beds or shores, unless the owner declares that the water is not necessary for the purposes of the public ownership; (8) water basins where there is a publicly owned and controlled access that is intended to provide for public access to the water basin; (9) natural and altered watercourses with a total drainage area greater than two square miles; (10) natural and altered watercourses designated by the commissioner as trout streams; and (11) public waters wetlands, unless the statute expressly states otherwise. (b) Public waters are not determined exclusively by the proprietorship of the underlying, overlying, or surrounding land or by whether it is a body or stream of water that was navigable in fact or susceptible of being used as a highway for commerce at the time this state was admitted to the union.] Public Waters Wetland: has the meaning given under Minnesota Statutes, section 103G. [Public waters wetlands. "Public waters wetlands" means all types 3, 4, and 5 wetlands, as defined in United States Fish and Wildlife Service Circular No. 39 (1971 edition), not included within the definition of public waters, that are ten or more acres in size in unincorporated areas or 2-1/2 or more acres in incorporated areas.] Reach: means the hydraulic engineering term used to describe longitudinal segments of a stream or river influenced by a natural or human-made obstruction. In an urban area, the segment of a stream or river between two consecutive bridge crossings would typically constitute a reach. Recreation Use Area: is the area within the shore impact zone where a shoreline buffer need not exist. APPENDIX C: Common Definitions List Recreational Camping Area: has the meaning given under Minnesota Statutes, chapter 327. [ "Recreational camping area" means any area, whether privately or publicly owned, used on a daily, nightly, weekly, or longer basis for the accommodation of five or more tents or recreational camping vehicles free of charge or for compensation. "Recreational camping area" excludes: (1) children's camps; (2) industrial camps; (3) migrant labor camps, as defined in Minnesota Statutes and state commissioner of health rules; (4) United States Forest Service camps; (5) state forest service camps; (6) state wildlife management areas or state-owned public access areas which are restricted in use to picnicking and boat landing; and (7) temporary holding areas for self-contained recreational camping vehicles created by and adjacent to motor sports facilities, if the chief law enforcement officer of an affected jurisdiction determines that it is in the interest of public safety to provide a temporary holding area.] Recreational Vehicle: means: A. a recreational vehicle as defined under Minnesota Statutes, chapter 168; and B. a recreational camping vehicle as defined under Minnesota Statutes, chapter 327. [ (a) "Recreational vehicle" means travel trailers including those that telescope or fold down, chassis-mounted campers, motor homes, tent trailers, and converted buses that provide temporary human living quarters. (b) "Recreational vehicle" is a vehicle that: (1) is not used as the residence of the owner or occupant; (2) is used while engaged in recreational or vacation activities; and (3) is either self-propelled or towed on the highways incidental to the recreational or vacation activities.] Recreational camping vehicle" when used in sections 327.14 to 327.28 includes the following: (a) any vehicular, portable structure built on a chassis, designed to be used as a temporary dwelling for travel, recreational, and vacation uses; (b) any structure designed to be mounted on a truck chassis for use as a temporary dwelling for travel, recreation, and vacation; (c) any portable, temporary dwelling to be used for travel, recreation, and vacation, constructed as an integral part of a self-propelled vehicle; and (d) any folding structure, mounted on wheels and designed for travel, recreation, and vacation use.] Redevelopment: means development on a previously developed parcel. APPENDIX C: Common Definitions List Regional Flood: means a flood which is representative of large floods known to have occurred generally in Minnesota and reasonably characteristic of what can be expected to occur on an average frequency in the magnitude of the 100-year recurrence interval. Residential Use: means use as a dwelling, whether for use as principal or secondary residences, but not transient use. Resort: has the meaning given under Minnesota Statutes, chapter 103F. [103F is Protection of Water Resources] Right-of-Way: An area of land that is surveyed and recorded for the provision of access. Riparian Lot: is a lot that abuts public waters. Rivulet: means a channel between defined banks created by the action of surface water, which is characterized by the lack of terrestrial vegetation or by the presence of a bed, devoid of topsoil, containing waterborne deposits or exposed soil, parent material or bedrock; and that is connected hydrologically with other water bodies. A rivulet is a permanent or intermittent stream that has a total drainage two square miles or less. Rivulets include those watercourses altered or modified by ditching. Rivulet does not include rills or gullies forming because of accelerated erosion in disturbed soils where the natural vegetation cover has been removed by human activity. This definition only applies to that portion of the stream located within a shoreland overlay district. Scenic Easement: has the meaning given under Minnesota Statutes, section 103F.311. ["Scenic easement" means an interest in land, less than the fee title, that limits the use of the land to protect the scenic, recreational, or natural characteristics of a wild, scenic, or recreational river area. Unless otherwise expressly and specifically provided by the parties, the easement must be: (1) perpetually held for the benefit of the people of the state; (2) specifically enforceable by its holder or any beneficiary; (3) binding upon the holder of the servient estate, and the holder's heirs, successors, and assigns; and (4) restricted so as not to give the holder or any beneficiary the right to enter on the land except for enforcement of the easement.] Selective Cutting: means a forest management method for regeneration or harvest that removes individual trees. Semipublic Use: means the use of land by a private, nonprofit organization to provide a public service that is ordinarily open to some persons outside the regular constituency of the organization. Sensitive Resource Management: The preservation and management of areas unsuitable for development in their natural state due to constraints such as shallow soils over groundwater or bedrock, highly erosive or expansive soils, steep slopes, susceptibility to flooding or occurrence of flora or fauna in need of special protection. APPENDIX C: Common Definitions List Sensitive Shoreland Area: means shoreland designated as a special protection shoreland overlay district pursuant to part 6120.3200 or shoreland riparian to any of the following types of public waters: A. Bays of lakes or lakes classified as natural environment pursuant to part 6120.3050; B. Trout lakes and streams designated pursuant to part 6264.0050; C. Wildlife lakes designated pursuant to Minnesota Statutes, section 97A.001, subdivision 2; D. Migratory waterfowl feeding and resting lakes designated pursuant to Minnesota Statutes, section 97A.095, subdivision 2, and part 6240.2100; or E. Outstanding resource value waters designated pursuant to part 7050.0180. Setback: means a separation distance measured horizontally. Sewage: has the meaning given under chapter 7080. ["Sewage" means waste produced by toilets, bathing, laundry, or culinary operations or the floor drains associated with these sources, and includes household cleaners, medications, and other constituents in sewage restricted to amounts normally used for domestic purposes.] Sewer System: pipelines or conduits, pumping stations, and force main, and all other constructions, devices, appliances, or appurtenances used for conducting sewage or industrial waste or other wastes to a point of ultimate disposal. Sewage Treatment System: A septic tank and soil absorption system or other individual or cluster type sewage treatment system as described and regulated in Chapter 7080 through 7083 of the State Rules and Regulations. Shore Impact Zone: means land located between the ordinary high water level of public waters and a line parallel to it at a setback of 50 percent of the required structure setback, but not less than 50 feet. This zone serves as all or part of the shoreline buffer. Shoreland: has the meaning given under Minnesota Statutes, chapter 103F.205, except the shorelands for rivers in the wild and scenic rivers system means those lands within the boundaries of the management plan for each designated river consistent with Minnesota Statutes, section 103F.321. ["Shoreland" means land located within the following distances from the ordinary high water elevation of public waters: (1) land within 1,000 feet from the normal high watermark of a lake, pond, or flowage; and (2) land within 300 feet of a river or stream or the landward side of a floodplain delineated by ordinance on the river or stream, whichever is greater.] Shoreland Conservation Subdivision: means a method of subdivision of shorelands characterized by natural areas and open space amenities for homeowners and protection of natural resources and riparian areas. Site designs incorporate standards of low impact development, such as the use of narrower residential streets and preservation of trees, shoreline, unique resources, and scenic vistas, and these developments use stormwater designs that emphasize on-site retention and infiltration through the preservation of native vegetation within the shore impact zone, use of pervious surfaces, rain gardens, filtration, and swales. Shoreline Buffer: means the land abutting public waters consisting of trees, shrubs, and low ground cover and understory of plants in a natural state. APPENDIX C: Common Definitions List Sign: Shall mean a name, identification, description, display, illustration or device which is affixed to or represented directly or indirectly upon a building, structure or land in view of the general public and which directs attention to a product, service, place, activity, person, institution or business. Significant Historic Site: means any archaeological site, standing structure, or other property that is: A. listed in the National Register of Historic Places or the State Register of Historic Sites; B. determined to meet the qualifications for listing in the National Register of Historic Places or State Register of Historic Sites after review by the Minnesota state archaeologist or the director of the Minnesota Historical Society; or C. an unplatted cemeteries to which Minnesota Statutes, section 307.08, applies. Sketch Plan: A preliminary site concept plan prepared for the administrative review, suggesting land use, property configurations and proposed improvements. Steep Slope: means land having average slopes over 12 percent, as measured over horizontal distances of 50 feet or more, that are not bluffs. Stormwater: has the meaning given under chapter 7090. ["Storm water" or "stormwater" means storm water runoff, snow melt runoff, and surface runoff and drainage. It includes the term "stormwater" as used in agency documents.] Structure: means a building or appurtenance, including decks, carports, roof overhangs, and solar panels. A local government may consider a nontransient recreational vehicle to be a structure. Structure does not include sewer, electric, communication, gas lines, towers, poles, and other supporting facilities for aeiral or underground utility lines. Subdivider: Any individual, firm, association, syndicate, co-partners, corporations, trust or other legal entity having sufficient proprietary interest in the land sought to be subdivided to commence and maintain proceedings to subdivide the same under this ordinance. Subdivision: means land that is divided for the purpose of occupancy, sale, rent, or lease, including planned unit development. Subsurface Sewage Treatment System: has the meaning given under chapter 7080. ["Subsurface sewage treatment system" or "SSTS" is either an individual subsurface sewage treatment system as defined in subpart 41 or a midsized subsurface sewage treatment system as defined in part 7081.0020, subpart 4, as applicable.] Suitable Area: is the area remaining on a lot or parcel of land after bluffs, areas with slopes greater than 25 percent, rights-of-way, existing roads, historic sites, wetlands, designated floodways, and land below the ordinary high water level of public waters are subtracted. Surface Waters: means waters of the state, excluding groundwater as defined in Minnesota Statutes, section 115.01, subdivision 6. Surface waters include lakes, reservoirs, ponds, marshes, rivers, tributary streams, watercourses, waterways, springs, and all other bodies or accumulations of water. Surface Water-Oriented Commercial Use: means the use of land for commercial purposes, where access to and use of a surface water feature is an integral part of the normal conductance of APPENDIX C: Common Definitions List business, including marinas, resorts, restaurants with transient docking facilities, and other surface water-oriented businesses. Transient Use: means the temporary occupancy of a dwelling unit or site. Travel Trailer: has the meaning given under Minnesota Statutes, chapter 168. ["Travel trailer" means a trailer, mounted on wheels, that: (1) is designed to provide temporary living quarters during recreation, camping, or travel; (2) does not require a special highway movement permit based on its size or weight when towed by a motor vehicle; and (3) complies with sections 169.80, subdivision 2, and 169.81, subdivision 2.] Variance: has the meaning given under Minnesota Statutes, chapters 394 and 462. ["Variance" means any modification or variation of official controls where it is determined that, by reason of exceptional circumstances, the strict enforcement of the official controls would cause unnecessary hardship or practical difficulty.] Walkway: A linear area designed and used for pedestrian access which may be used in a natural state or be covered with an artificial surface. Water-Oriented Accessory Structure: means a small, building or other improvement, except stairways, fences, docks, and retaining walls, that, because of the relationship of its use to a surface water feature, reasonably needs to be located closer to public waters than the normal structure setback. Water-oriented accessory structure includes gazebos, screen houses, fish houses, pump houses, and detached decks and patios. Wetland: has the meaning given under Minnesota Statutes, chapter 103G. [) "Wetlands" means lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. For purposes of this definition, wetlands must have the following three attributes: (1) have a predominance of hydric soils; (2) are inundated or saturated by surface or ground water at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and (3) under normal circumstances support a prevalence of such vegetation. (b) For the purposes of regulation under this chapter, the term wetlands does not include public waters wetlands as defined in subdivision 15a.] Youth Camp: has the meaning given under Minnesota Statutes, chapter 144.71. [outh camp is defined as a parcel or parcels of land with permanent buildings, tents or other structures together with appurtenances thereon, established or maintained as living quarters where both food and beverage service and lodging or the facilities therefor are provided for ten or more people, operated continuously for a period of five days or more each year for educational, recreational or vacation purposes, and the use of the camp is offered to minors free of charge or for payment of a fee.] APPENDIX C: Common Definitions List Zoning District: An area of (enter jurisdiction) defined on the zoning map, having uniform zoning provisions. Zoning Map: The map of (enter jurisdiction), amended from time to time, which defines the boundaries of the zoning districts. APPENDIX E: DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS 1.1 POLICY Residential developments in _____________ should provide a choice of housing types and a variety of recreational opportunities. These standards address the following policies and strategies from the _________________ Comprehensive plan: A. . B. . C. . 1.2 PURPOSE AND APPLICABILITY A. The purpose of this part is to allow for greater flexibility and creativity in the design of residential subdivisions; facilitate the construction of streets, utilities, and public services in a more economical and efficient manner; and promote conservation subdivisions to ensure that citizens in residential developments and the public benefit from the conservation of natural features of the land, including wetlands, forests, shorelines, steep slopes, plants, wildlife, historic sites, and scenic areas. B. Applicability. These standards shall apply to all subdivisions of real estate in the unincorporated areas of ________________ creating four or more lots, except for minor boundary line corrections, resolution of encroachments, and additions to existing lots of record. C. Options. This Article provides for flexibility in designing new subdivisions and establishes procedures and criteria for evaluating new subdivisions by allowing two forms of development--conventional developments and conservation developments. 1. Conservation developments and conventional developments are allowed for new projects on undeveloped land, redevelopment of previously built sites, or conversions of existing buildings. 2. Conservation developments on riparian parcels shall have a minimum of three contiguous acres of suitable area and a minimum lot width of 400 feet. 1.3 DEVELOPMENT APPLICATION PROCESS Development applications shall follow the procedures established in ________________________________. 1.4 ENVIRONMENTAL REVIEW Environmental review shall be conducted pursuant to the procedures and standards in Article ________ of this ordinance. 1.5 CRITERIA FOR EVALUATION Before the Planning Commission recommends approval of a development proposal, they shall find that the following criteria are satisfied: 1 The development complies with all _____________ordinance standards. 2 The development or unit thereof is of sufficient size, composition and arrangement that its construction, marketing, and operation is feasible as a complete unit without dependence upon any subsequent unit. APPENDIX E: DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS 1.6 3 The development will not create an excessive burden on parks, schools, streets and other public facilities and utilities that serve or are proposed to serve the development. 4 Access in the form of dedicated right-of-way or easement, as appropriate, shall be provided to adjacent undeveloped properties that do not have direct access to a public road. Developers or subsequent owners may be entitled to compensation for providing such access. DESIGN CHANGES Changes made after final plat approval shall be approved as follows: A. During construction of the development, the ________________may approve minor changes in the location of buildings, design of roads, or other circumstances not foreseen at the time the development was approved. B. Changes in uses, rearrangement of lots, blocks, dwelling unit lots, or any changes in the provision of common open space shall require re-approval by the Planning Commission and Townships if applicable. 1.7 MAINTENANCE AND ADMINISTRATION REQUIREMENTS To insure the continued existence and functioning of the common open space and the development as a community, the following administrative requirements shall be met: A. Development organization and functioning for developments of 10 or more lots or dwelling unit lots. Unless an equally effective alternative community framework is approved by the Planning Commission and established, when there is common open space or any other common element, all residential developments of 10 or more lots or dwelling unit lots shall include an owners’ association with the following features: 1. Membership shall be mandatory and automatic for each lot or dwelling unit lot owner and any successive owners. 2. Require that each owner in the development have an undivided ownership in the common open space and other common elements. 3. Each member shall pay a pro rata share of the association's expenses, and unpaid assessments can become liens on units or sites. 4. Assessments shall be adjustable to accommodate changing conditions. 5. The association shall be responsible for insurance, taxes, and maintenance of all commonly owned property and facilities, and shall enforce covenants, deed restrictions, and easements. 6. The association shall have a Long-term Management Plan for any common open space and shall administer the plan pursuant to the terms of _____________________’s conservation easement on the open space. 7. Amendments or revisions to covenants or deed restrictions. Before establishing or recording any common interest community, the developer shall submit documents, including all covenants, conditions, restrictions, easements, and operating rules and procedures associated with the development, for review and approval by the Planning Commission pursuant to Minnesota Statutes, section 515 B.1-106. Such APPENDIX E: DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS documents shall provide that no amendments or revisions of covenants or deed restrictions may be made unless approved in advance by the Planning Commission. Any such amendments or revisions made without such approval shall not be effective. B. Common open space preservation. A permanent conservation easement to ensure perpetual preservation and maintenance of common open space shall be created in favor of _____________ under Minnesota Statutes, Chapter 84C. _________________, at its option, may transfer its interest in the easement to a non-profit conservation organization or other public agency. There shall be no cost to ______________ of easement acquisition, other than costs incidental to the transfer of ownership. The form of the easement shall be approved by _____________________. The instruments of the easement shall incorporate the provisions of this Article governing common open space, including without limitation all of the following protections: 1. Regulate construction impervious surfaces and/or recreation facilities pursuant to the Long-term Management Plan. 2. Prohibit beaching of motorized watercraft when used as an unauthorized mooring space. 3. Prohibit dumping, storage, or burning of solid or other wastes. 4. Allow the use of common open space for subsurface sewage treatment systems if other use of the space is restricted to avoid adverse impacts on the sewage treatment system. 5. Restrict in perpetuity the common open space from further subdivision and/or land development. C. Other common elements. Common elements such as areas designated for storage of vehicles and personal property may be designated, provided that open space requirements are met, pursuant to the Long-term Management Plan. D. Residential developments of nine or less lots or dwelling unit lots with common open space. The common open space may be retained by the landowner, owner’s association, and/or the developer, and may be sold to any subsequent landowner, provided: 1. The common open space is surveyed; and 2. The common open space remains undivided and is restricted from further development by means of a permanent conservation easement. The permanent conservation easement shall comply with the provisions of Article 1.7, B. 3. The landowner, owner’s association and/or the developer shall be responsible for insurance, taxes, and maintenance of all common open space, property and facilities, and shall enforce covenants, deed restrictions, and easements. 4. The landowner, owner’s association and/or the developer shall have and administer a Long-term Management Plan for any common open space, property and facilities. E. In the event the person or entity responsible for administration of the Long-term Management Plan fails to administer and perform all or any portion of the plan relating to common open space, the __________ may serve written notice upon such person or entity setting forth the manner in which the such person or entity has failed to administer and perform the plan. Such notice shall set forth the nature of corrections required and a reasonable time within which to complete corrective action. If corrective action is not completed within a reasonable time, the __________ may, but the __________ is not required to, assume responsibility for APPENDIX E: DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS administration and performance of the plan with respect to such failures, and in furtherance of such action the ___________ may enter the premises and take all corrective action as may be reasonable, including extended maintenance. The costs of such corrective action may be charged to the person or entity responsible for administration of the Long-term Management Plan or individual property owners who make up a homeowners' association and may include administrative costs. Such costs shall become a lien upon and assessed against the properties that have the right of enjoyment of the common open space. 1.8 CONSERVATION DEVELOPMENT STANDARDS Conservation development standards are intended to provide a relationship between buildings, and between buildings and sites, that cannot be accomplished by the one building-one lot application of the land use provisions of this ordinance. In order to encourage well designed building groups, this section provides for the development of more than one structure upon a single lot or tract as well as the integral development of one or more lots as a single tract. 1.9 CONSERVATION DEVELOPMENT DESIGN PROCESS AND CRITERIA A. Before submitting an application, applicants are required to demonstrate to the Planning Commission that the following design process was used to determine the layout of proposed streets, dwelling unit lots, and open space as shown on the site plan: 1. Step One: Identifying conservation areas: a. First, primary conservation areas such as wetlands, bluff impact zones, and structure setback areas and secondary conservation areas including unprotected elements of the natural landscape such as steep slopes, mature woodlands, prime farmland, meadows, wildlife habitats and cultural features such as historic and archeological sites and scenic views shall be identified and delineated. b. Second, the developable area shall be identified and shall consist of land completely outside primary conservation areas, and, to the maximum extent feasible, outside secondary conservation areas. 2. Step Two: Calculate the number of dwelling unit lots allowable under Article 1.10 and locate the approximate sites of individual houses within the developable area. Include the delineation of private yards and shared amenities so as to reflect an integrated community, with emphasis on consistency with the ________________ Comprehensive Plan. 3. Step Three: Aligning the streets and trails. Align streets in order to access the dwelling unit lots. Additionally, new trails should be laid out to create internal and external connections to existing and/or potential future streets, sidewalks, and trails. 4. Step Four: Draw in the lot lines. 5. Step Five: Identify on a design plan map all parts of the project parcel to be permanently protected as part of the open space. B. Conservation development design criteria: 1. At least 50% of the total project area shall be permanently preserved as common open space. Common open space shall include structure setbacks and bluff impact zones, areas with physical characteristics unsuitable for development in their natural state, and areas containing significant historic sites or unplatted cemeteries. No more than 25% of the required open space may consist of wetlands for developments in the shoreland zone not abutting public waters. APPENDIX E: DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS a. To the maximum reasonable extent all open space shall be part of a larger continuous and integrated open space system within the parcel being developed. Areas shall be considered contiguous if they are within 100 feet of each other and there are no impediments to access between the areas. b. Natural features included in open space shall generally be maintained in their natural condition, but may be managed to improve their appearance, or restore their overall condition and natural processes, as recommended by natural resource professionals and in compliance with the Long-term Management Plan approved by the ________. Permitted management activities may include: i. ii. iii. iv. v. vi. vii. viii. Woodland management. Reforestation. Meadow management. Wetlands management. Water body bank protection. Buffer area landscaping. Wildlife management Recreation management c. The common open space shall maximize common boundaries with existing or future open space on adjacent lands. d. Common open space shall properly serve and enhance all dwelling unit lots, cluster groups, and other common facilities. 2. Dwelling unit lots areas designated as common elements, all road rights-of-way, and all land covered by impervious surfaces, shall not be included in the computation of common open space. 3. Dwelling unit lots may be clustered into one or more groups located on suitable areas of the development and must meet all external property line, road, and structure setbacks. 4. The average dwelling unit lot size shall not exceed 30,000 square feet. 5. Dwelling unit lot impervious surface coverage shall meet the standards in Article ____________. 6. There shall be at least one access corridor to the structure setback as approved by the Planning Commission. The corridor shall: a. Be accessible to all residents of the conservation development. b. Have a minimum width of 50 feet. c. Provide upland access to the structure setback area without impacting wetlands. d. Have a trail and vegetation management plan addressed in the Long-term Management Plan. 7. New developments and redevelopments of existing developments shall meet vegetation management standards in Article ___________________________of this ordinance. APPENDIX E: DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS 8. No impervious surfaces shall be allowed within the shore impact zone, except, stairways, lifts or landings. Those portions of boat launching ramps greater than ten feet landward from the OHWL shall be constructed of pervious materials. 9. Roads within and serving conservation developments shall be constructed according to American Society of Civil Engineers (ASCE) standards (Residential Streets, 2001, 3rd edition or later, ASCE) and the development plan approved by the Planning Commission, and the local road authority, if applicable. 10. The boundaries of the permanent conservation easement area and the common open space shall be clearly and visibly marked. 11. Access in the form of dedicated right-of-way or easement, as appropriate, shall be created for connection to adjacent undeveloped properties or public lands that do not have direct access to a public road. Developers or subsequent owners may be entitled to compensation for providing such access. 1.10 CONSERVATION DEVELOPMENT DENSITY EVALUATION A. Shoreland District: 1. The project parcel must be divided into two tiers: a. The first tier shall consist of all areas within the following distances landward from the OHWL of public waters: Lake or River Class General Development Recreational Development lakes Natural Environment lakes Sensitive Shoreland Districts All river classes First Tier Landward in Feet 200 267 400 400 300 b. The second tier shall consist of all remaining area in the project parcel. 2. The number of dwelling unit lots allowable in each tier is calculated by dividing the suitable area in square feet within each tier by the density factor for the shoreland class in Table 1.1: 3. Table 1.1 Conservation Development Density Factors-Shoreland District Classification General development lakes and rivers Recreational development lakes Natural Environment lakes and rivers, Sensitive Shoreland Districts Cold Water At Standard Structure Setback First Tier 27,000 At 150% of Standard Structure Setback First Tier 24,000 Second Tier 22,500 34,000 32,000 30,000 68,000 64,000 60,000 72,000 67,500 67,500 APPENDIX E: DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS 4. Allowable dwelling unit lots may be transferred from the first tier to the second tier, but not from the second tier to the first tier. Dwelling unit lots may straddle tier lines. B. Non Shoreland Districts: 1. 1.11 The number of dwelling unit lots allowable is calculated by dividing the total project parcel area in square feet by: a. 43,560 in the Rural Residential-1 District; or, b. 108,900 in the Rural Residential-2.5 District; or, c. 217,800 in the Rural Residential-5 District; or, d. 435,600 in the Rural Residential-10 District; or, e. 871,200 in the Rural Residential-20 District. CENTRALIZATION AND DESIGN OF FACILITIES A Long-term Management Plan shall be submitted to and approved by the Planning Commission. In addition to other required provisions, the plan must include or provide for: A. Conservation developments shall be connected to publicly owned water supply and sewer systems, if available. Sewage treatment systems may be centralized and shall have an operating plan and third-party manager. B. A lake use and access area plan including: 1. The location and configuration of pathways, launching ramps, dock configuration and location, and other facilities within the structure setback area, if any. 2. Provisions that allow all residents of the conservation development to use the shore recreation area, exclusive of the dedicated continuous mooring spaces. 3. The size, location, and configuration of the shore recreation area, including but not limited to swimming areas, docks, launching ramps, and watercraft mooring areas, if any. a. The total width of the shore recreation area(s) shall not exceed the greater of 50 feet or a distance equal to 10% of the riparian lot width. The depth of the shore recreation area may extend to the structure setback line, subject to the stormwater plan approved by the Planning Commission. b. All such facilities shall be centralized and located in areas most suitable for them. Evaluation of suitability shall include consideration of land slope, water depth, upland and aquatic vegetation, presence of wetlands, soils, depth to groundwater, or other relevant factors. APPENDIX E: DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS c. Identification of potential safety issues created by and addressing conflicts among the uses permitted under the plan, d. All such facilities may be used by all occupants of the conservation development, subject to the provision of Article 1.11, B., 4. and 5. 4. Prohibit shore recreation facilities or uses outside of the designated lake use and access area and adjacent littoral areas. 5. The number of allowable continuous watercraft mooring spaces for conservation developments abutting public waters shall not exceed the number of allowable dwelling unit lots in the first tier. Individual docks are not allowed. 6. Unless prohibited by the conservation easement created under Article 1.7, B. launching ramp facilities, including a dock for loading and unloading equipment may be used by all occupants of the conservation development, provided that all watercraft, other than those afforded continuous mooring spaces, are stored outside the structure setback area such that they are not visible from the public water. C. Accessory structures, parking areas, storage and other facilities shall meet the required principal structure setback and be centralized, be treated to reduce visibility as viewed from Public waters and adjacent shorelands by vegetation, topography, increased setbacks, color, or other means acceptable to the _________, assuming summer, leaf-on conditions.. Vegetative and topographic screening shall be preserved, if existing, or may be required to be provided. D. Prohibit commercial uses. 1.12 CONVENTIONAL DEVELOPMENT STANDARDS, DESIGN PROCESS, AND CRITERIA Conventional development standards are intended to provide a one primary residence per lot application of the land use provisions of this ordinance. A. Conventional developments shall use the design procedures established in ______________ Subdivision Ordinance as well as the residential lot area standard for the respective land use district classification in Article _______________ of this ordinance. B. All roads within conventional developments, whether public or private, shall be constructed to meet specifications in the Article ______________ of this ordinance. C. A shoreland vegetation buffer plan shall be designed and implemented meeting the standards in Article __________ of this ordinance. D. No impervious surfaces shall be allowed within the shore impact zone, except, stairways, lifts or landings. If permitted under Article _____________, those portions of boat launching ramps greater than ten feet landward from the OHWL shall be constructed of pervious materials. E. Access in the form of dedicated right-of-way or easement, as appropriate, shall be created for connection to adjacent undeveloped properties or public lands that do not have direct access to a public road. Developers or subsequent owners may be entitled to compensation for providing such access. APPENDIX E: DRAFT MODEL RESIDENTIAL DEVELOPMENT STANDARDS F. Common Elements. Common elements such as areas designated for storage of vehicles and personal property may be designated, provided that open space requirements in Article 1.7, B are met. 1.13 CONVENTIONAL DEVELOPMENT DENSITY EVALUATION – SHORELAND AND NONSHORELAND AREAS. The number of lots allowable is calculated: A. In the Shoreland District, according to the standards in the______________ Subdivision Ordinance, as well as the residential lot area standard for the respective land use district classification in Article ___ of this ordinance, subject to the open space requirements in Article 1.7, B. B. Outside the Shoreland District, according to the standards in the _________________ Subdivision Ordinance, as well as the residential lot area standards for the respective land use district classifications in Article ______________ of this ordinance, 1.14 EROSION CONTROL, STORMWATER MANAGEMENT, AND SEDIMENT CONTROL A. All developments shall comply with the provisions of Article _______________of this Ordinance. DRAFT MODEL STORMWATER MANAGEMENT STANDARDS ____ PURPOSE AND INTENT A. The purpose of this part is to protect surface waters and private property from damage resulting from storm water runoff and erosion, ensure the annual storm water runoff rates and volumes from postdevelopment site conditions mimic the annual runoff rates and volumes from predevelopment site conditions, ensure site development minimizes the generation of storm water and maximizes storm water treatment and infiltration, and protect water quality from nutrients, pathogens, toxins, debris, and thermal stress. B. The (Unit of Govt) shall evaluate the storm water management needs of each lot in doing all reviews, approvals, and permit issuances. C. Treated storm water runoff shall use existing natural drainage ways and vegetated soil surfaces to convey, store, further filter, and retain storm water runoff before discharge to public waters. Preference shall be given to designs using surface drainage, vegetation, and infiltration rather than buried pipes and man-made materials and facilities. _____ IMPERVIOUS SURFACE STANDARDS A. Shoreland District--Shoreland Protection Zone. Impervious surface coverage shall not exceed the limits in the following table: Shoreland Protection Zone Impervious Surface Limits (First 500 feet from OHWL) Development or use Maximum impervious surface Applicable area New residential lots w/o a structure 15* Total lot area Residential lots of record 15* Total lot area Conservation Developments 30 Dwelling unit lot Resort 25** Total project area and any tier Commercial 30 Total lot area * - up to ___ percent impervious surface coverage may be allowed with a storm water management plan designed by a Minnesota-licensed professional engineer. The plan shall be approved by ________ and effectively implemented. ** - up to _____ percent impervious surface coverage may be allowed with a storm water management plan designed by a Minnesota-licensed professional engineer. The plan shall be approved by ________ and effectively implemented. B. Shoreland District--Shoreland Buffer Zone. Impervious surface coverage shall not exceed the limits in the following table: Shoreland Buffer Zone Impervious Surface Limits (Rest of shoreland district) Development or use Maximum impervious surface Applicable area New residential lots 20* Total lot area Residential lots of record 20* Total lot area Conservation Developments 30 Dwelling unit lot Resort 30 Total project area and any tier Commercial 35 Total lot area * - up to ___ percent impervious surface coverage may be allowed with a storm water management plan designed by a Minnesota-licensed professional engineer. The plan shall be approved by ________ and effectively implemented. C. Non-Shoreland Districts. Impervious surface coverage outside the Shoreland District shall not exceed the limits in the following table: Non-Shoreland Impervious Surface Limits Development or use Maximum impervious surface Applicable area New residential lots 25 Total lot area Residential lots of record 25 Total lot area Conservation Developments Resort Commercial 40 40 60 Dwelling unit lot Total project area and any tier Total lot area ______ GENERAL STANDARDS A. For construction projects that create up to 3000 square feet of new impervious surface on a lot, ______________ shall require stormwater best management practices as a condition of permit approval. B. For construction projects that create from 3,000 to 10,000 square feet of new impervious surface on a lot, ______________ shall require the applicant to submit a plan for permanent on-site treatment of one inch of stormwater runoff. This means that a volume of water equal to one inch multiplied by the area of impervious surface must be treated. Preference should be given to volume reduction techniques that include infiltration basins, rain gardens, enhanced infiltration swales, filter strips, disconnected impervious areas, soil amendments, bioretention, and other approved volume reduction techniques. The plan shall be approved by ______________ and effectively implemented. C. For construction projects that create over 10,000 square feet of new impervious surface on a lot, and for all plats, ______________ shall require the applicant to submit a plan for permanent on-site treatment of one inch of stormwater runoff designed and inspected by a Minnesota-licensed professional engineer. D. All stormwater plans shall be capable of safely passing a 100 year, 24 hour storm event, using grassed swales, grit chambers, vegetated filter strips, bioretention areas, off-line retention areas, and natural depressions for infiltration, is required before the runoff leaves the project site or enters surface waters. Constructed storm water outfalls to public waters must provide for filtering or settling of suspended solids and skimming of surface debris before discharge. E. All stormwater management technologies must be consistent with the most current version of the Minnesota Stormwater Manual, which is incorporated herein by reference. F. Unless otherwise provided by the property owner, a minimum 12-foot wide driveway from the nearest road right-of-way to the principal structure must be included in the impervious surface coverage calculation. G. ______________ may count 50% of the area covered by a permeable pavement system as pervious surface if a Minnesota-licensed professional engineer is responsible for design and inspection of installation of the permeable system and best management practices are followed in design, installation, and maintenance as found in the latest Minnesota Stormwater Manual, subject to the following standards: 1. No credit may be given for a permeable pavement system in a shore or bluff impact zone, except as otherwise allowed for watercraft access ramps; 2. The base of the installed permeable pavement system must have a minimum of three feet separation from the seasonally saturated soils or from the bedrock; and 3. The design of a permeable pavement system must allow the infiltration of one inch of stormwater that falls on the pavement surface. _____ MANAGEMENT OF STORMWATER FACILITIES A. All storm water management facilities shall be designed to minimize the need for maintenance, to provide access for maintenance purposes and to be structurally sound. All storm water management facilities shall have a plan of operation and maintenance that assures continued effective removal of pollutants carried in storm water runoff. It shall be the responsibility of the applicant to obtain any necessary easements or other property interests to allow access to the storm water management facilities for inspection and maintenance purposes. The Board may require a developer to enter into a contract providing for access to perform maintenance and inspection to public or private storm water management facilities. B. Newly installed and rehabilitated catch basins shall be provided with a sump area for the collection of coarse grained material as specified by the Administrator. Such basins shall be cleaned when they are 75 percent of the ponds original volume with material or as resources allow. _____ MINNESOTA POLLUTION CONTROL AGENCY PERMIT Construction activity that results in the disturbance of one or more acres also require a stormwater permit from the Minnesota Pollution Control Agency (MPCA). APPENDIX G: EUCLIDEAN ZONING PAPER EUCLIDEAN II ZONING BY RONALD J. TREHARNE Enhancing Existing Zoning Classification Systems into a Hierarchical System to Support Sustainable Development and to Support New Urbanism Development Ronald J. Treharne, AIA 446 Carmel Drive Melbourne, FL 32940 1-321-698-5739 rtreharne@att.net http://www.ron-treharne.com/