2015-06-23 Board of Zoning Appeals PacketCITY OF MENDOTA HEIGHTS
BOARD OF ZONING APPEALS AGENDA
mi June 23, 2015
Immediately following the
Planning Commission Meeting
scheduled to begin at 7:00 p.m.
Mendota Heights City Hall
1. Call to Order
2. Roll Call
3. Adopt Agenda
4. Public Hearings:
a. Case No. 2015-18: STEP Academy. Appeal from zoning determination to allow
a charter school use at 1345 Mendota Heights in the Industrial Zoning District.
5. Adjourn
Auxiliary aids for persons with disabilities are available upon request at least 120 hours
in advance. If a notice of less than 120 hours is received, the City of Mendota Heights
will make every attempt to provide the aids, however, this may not be possible on short
notice. Please contact City Hall at 651.452.1850 with requests.
6/23/15 Board of Zoning Appeals Packet - Page 1
1101 Victoria Curve I Mendota Heights, MN 55118
651.452.1850 phone 1 651.452.8940 fax
www.rnendota-heights.com
CITY OF
Of MENDOTA HEIGHTS
DATE:
June 23, 2015
TO:
Planning Commission
FROM:
Nolan Wall, AICP
Planner
SUBJECT:
Planning Case 2015-18
Zoning Appeal — Charter School Use
APPLICANT:
STEP Academy
PROPERTY ADDRESS:
1345 Mendota Heights Road
ZONING/GUIDED:
I-Industrial/I-Industrial
ACTION DEADLINE: September 11, 2015 (extended to 120 days)
DESCRIPTION OF THE REQUEST
The applicant is seeking an appeal from an interpretation of the text of the City Code concerning the
definition of a trade school. According to the City Code, the Planning Commission is designated as the
Board of Zoning Appeals.
BACKGROUND
Staff was contacted by representatives for STEP Academy, a charter school serving grades 6-12, inquiring
about leasing space at 1345 Mendota Heights Road. Based on staff's interpretation of the Code, they were
informed that the proposed use is not permitted and, as a result, would require a code amendment to locate
within the Industrial District. The following timeline of events ensued:
1. April 17, 2015 — STEP Academy request for zoning determination (Exhibit A)
2. April 24, 2015 — City response to request for zoning determination (Exhibit B)
3. June 17, 2015 and May 14, 2015 — STEP Academy appeal letters (Exhibit C)
According to Title 12 -1L -A of the City Code:
Board Of Appeals; Planning Commission Serve As: The planning commission is designated as the board
of zoning appeals and shall determine, in harmony with the general purpose of this chapter and the
comprehensive plan, by resolution, all appeals from any order, requirement, permit or decision made by
the zoning administrator under this chapter, and from any interpretation of the text of this chapter, or any
determination by the zoning administrator as to the location of the boundary of a zoning district as shown
on the zoning map.
In this case, the Board of Zoning Appeals is charged with considering an appeal from an interpretation of
the text of the City Code. The City Council may review and revise any decision of the Board, in compliance
with Title 12 -1L -D of the City Code. The City Attorney has provided a memo with further information on
the procedural requirements for a zoning appeal and supporting analysis for consideration (see Exhibit D).
6/23/15 Board of Zoning Appeals Packet - Page 2
ANALYSIS
The appeal for consideration before the Board of Zoning Appeals concerns the Code's definition of a "trade
school" and whether or not STEP Academy meets that definition and is, therefore, permitted to sublease
the property at 1345 Mendota Heights Road. The letters provided on behalf of the appellant (Exhibits A
and C) include further background on the proposed use and rationale behind their appeal.
Trade School Definition
According to Title 12-1B-2 of the City Code, "trade school" is defined as follows:
TRADE SCHOOL: An educational institution, either private or public, which offers classes and training to
full and/or part time students including, but not limited to, technical, mechanical, services and computing
fields.
Based on the existing City Code provisions and past City Council determinations, it remains the City's
position that a charter school is not included in the trade school definition and is, therefore, not a permitted
nonmanufacturing use within the Industrial District. A charter school would be considered consistent with
the use category "public and parochial schools," which are permitted uses within the residential zoning
districts.
If a charter school were to be included as part of the definition listed above, other educational institutions,
regardless of grade level, may also qualify under this definition. If that were the case, it would seem difficult
to come to the conclusion that a primary/elementary educational institution (K-6) could somehow be
construed to fit the definition of a trade school simply because the definition does not include specific grade
level requirements and they offer classes and/or training in various fields as part of the curriculum. Staff
contends that the intent of the existing definition is to further qualify the companion permitted use in the
Industrial District, which is "trade schools and colleges or universities..."
Land Use
As noted, the property at 1345 Mendota Heights Road is located in the Industrial District and is currently
occupied by Sanford -Brown College (see attached map). According to Title 12-1G-1 of the City Code,
"Trade schools and colleges or universities, without accessory housing" are permitted nonmanufacturing
uses within the Industrial District. In addition, "Business or trade school when conducted entirely within a
building" are conditional uses within the B-3 General Business District. Due to the location of the property
in question, the land use issues raised in this report are related to the Industrial District. However, it should
be noted that a determination that a charter school meets the definition of a trade school may also allow the
use within other zoning districts in the City.
Trade school uses that occupy the Industrial District are post -secondary institutions. The use category also
includes "colleges or universities," both of which are post -secondary in nature, and were specifically
discussed by the City Council and amended by Ordinance 391 in 2004. One of the purposes for the
proposed amendment was to reflect the change from Brown Institute to Brown College, since they had
begun to offer four-year degrees.
The Industrial District allows a mix of permitted, conditional, and accessory uses, but the vast majority of
the existing land uses are office and industrial (fabrication, storage, manufacturing or wholesale). While it
is recognized that certain charter schools may have different missions and curriculum than traditional
public/private primary and secondary educational institutions, a determination that allows this use to be
permitted by right in the Industrial District may allow for proliferation of other educational institutions that
were not envisioned as part of the long-term planning for the area. The City has taken great care to support
and maintain the industrial and business character of the Industrial District and is undergoing a
redevelopment planning process to ensure its long-term success. Careful consideration should be taken
when considering allowing additional educational institutions in this area, especially as permitted uses.
6/23/15 Board of Zoning Appeals Packet - Page 3
Previous City Council Determinations
Based on review of available meeting minutes and staff correspondence (see Exhibit E), the City Council
has been approached on at least two occasions by charter schools interested in operating within the
Industrial District. While not specifically discussed, it can be reasonably -assumed that the Council did not
consider a charter school to be included in the trade school definition since both discussions centered on
consideration of a potential code amendment to allow the use. According to the minutes, the Council raised
the following potential land use issues regarding charter schools operating within the Industrial District:
• Insufficient off-street parking
• Lack of on-site recreational facilities for students
• Bus and student traffic
• Proliferation of other educational uses in the Industrial District
• Land use conflicts with existing/future industrial uses
• Maintaining the industrial character of the industrial park
While it is recognized that the appeal in this case stands on its own merit, it is important to note how past
City Councils have considered charter school uses within the Industrial District and why staff is making the
aforementioned determination in this case.
Response to Appeal Letter
Staff has the following responses to additional issues raised in the letter attached as Exhibit C, dated June
17, 2015, from the attorney representing the appellant in this case:
Initial City Position
It is implied that staff may have intentionally withheld information regarding the potential for an appeal
process when originally contacted by the broker representing the appellant; the inquiry was simply to ask
whether a charter school was allowed to operate at the property in question within the Industrial
District. Staff does not recall any mention of the existing trade school definition, and therefore there was
no need to further discuss a potential appeal on the grounds being raised in this case. As with other brokers
or interested parties, they were encouraged to pursue a code amendment process to consider the use in
compliance with the City's timelines for such a request. To the extent that process does not work within
their timelines is unfortunate, but that is not the City's issue. The original appeal request letter, dated May
14, 2015, is included as part of the application package concerning this request. This is normal practice for
any correspondence related to a pending application provided to staff.
Proposed Trade School Definition Code Amendment
As discussed at the May 26 Planning Commission meeting, and communicated to the appellant and their
representatives during a meeting held earlier that day, the appeal before the Board of Zoning Appeals is
contesting the existing Code language and is therefore not impacted by the proposed code amendment. The
proposed amendment regarding the trade school definition is meant to further clarify the City's position
that trade schools are post -secondary institutions, in accordance with past policy discussions on the
matter. Furthermore, it is an acceptable process for any city to consider amendments to land use ordinances
in order to seek clarification to ensure consistent and equitable administration of the regulations. Therefore,
it is staff s position the proposed code amendment concerning the trade school definition is irrelevant in
this case. Staff s message and interpretation of the Code to all parties involved in this case has been
consistent from the initial contact.
On May 20, 2015, as a courtesy, the appellant and their attorney were made aware of the code amendment
application being considered by the Planning Commission at their upcoming meeting. Staff s only face-to-
face meeting was held May 26, the day of the Planning Commission meeting. The City followed the proper
noticing procedures in compliance with policies for such a request and the appellant and their
representatives were able to provide testimony at the public hearing.
6/23/15 Board of Zoning Appeals Packet - Page 4
City Code Amendment Process
The City has informed the appellant and their representatives, as well as the several other charter school
uses which have previously been interested in locating within the Industrial District, the appropriate
procedure would require a code amendment to specifically allow the use. If an applicant was to make such
a request, staff would recommend the use be considered as a conditional or interim use, not as a permitted
use. A conditional or interim use allows for a public hearing and reasonable conditions to be placed on the
use, based on potential negative impacts to surrounding properties and the public. Staff continues to
recommend this process as the most equitable and transparent option for consideration of a charter school
use within the Industrial District.
ALTERNATIVES
Following a hearing, the Board of Zoning Appeals may consider the following actions:
1. Deny the appeal from a zoning determination, based on the attached findings of fact.
2. Grant the appeal from a zoning determination, based on the findings of fact that a charter school
meets the definition of a trade school.
3. Table the request.
STAFF RECOMMENDATION
Staff recommends denial of the appeal from a zoning determination in this case to consider a charter school
under the definition of a trade school as a permitted use in the Industrial District, based on the attached
findings of fact (Alternative #1).
If the Board of Zoning Appeals desires to implement the recommendation, pass a motion adopting
RESOLUTION 2015-44 DENYING AN APPEAL FROM A ZONING DETERMINATION. An alternate
resolution granting the appeal request is also provided for consideration.
This matter requires a simple majority vote.
MATERIALS INCLUDED FOR REVIEW
1. Resolution 2015-44
2. Aerial site map
3. Planning application
4. Exhibit A — STEP Academy request for zoning determination letter (dated April 17, 2015)
5. Exhibit B — City response to zoning determination letter (dated April 24, 2015)
6. Exhibit C — STEP Academy appeal letters (dated June 17, 2015 and May 14, 2015)
7. Exhibit D — City Attorney memo (dated June 8, 2015)
8. Exhibit E — Staff memo/City Council minutes (March 16, 2000, March 21, 2000, and May 1, 200 1)
6/23/15 Board of Zoning Appeals Packet - Page 5
FINDINGS OF FACT FOR DENIAL
Appeal from Zoning Determination
STEP Academy
The following findings of fact are made in denial of the appeal:
The intent of the existing trade school definition is to further qualify the permitted uses within the
Industrial District, which are "trade schools, colleges or universities," as being post -secondary
institutions.
2. The applicable use category includes "colleges or universities," both of which are post -secondary
in nature.
3. Trade school uses that occupy the Industrial District are post -secondary institutions.
4. The City Council has determined that past requests to operate charter schools within the Industrial
District would require a code amendment.
5. A code amendment process to properly consider the use would allow for a public hearing and
consideration of potential land use conflicts that may have negative impacts on surrounding
properties and the public.
6/23/15 Board of Zoning Appeals Packet - Page 6
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2015-44
RESOLUTION DENYING AN APPEAL FROM A ZONING DETERMINATION
WHEREAS, STEP Academy has requested an appeal from an interpretation of the text of the
City Code concerning the definition of a trade school, as proposed in Planning Case 2015-18; and
WHEREAS, the Mendota Heights Board of Zoning Appeals held a public hearing on this
matter at their regular meeting on June 23, 2015.
NOW THEREFORE BE IT RESOLVED by the Mendota Heights Board of Zoning Appeals
that the appeal from an interpretation of the text of the City Code, as proposed in Planning Case 2015-
18, is hereby denied with the following findings of fact:
The intent of the existing trade school definition is to further qualify the permitted uses within
the Industrial District, which are "trade schools, colleges or universities," as being post-
secondary institutions.
2. The applicable use category includes "colleges or universities," both of which are post-
secondary in nature.
3. Trade school uses that occupy the Industrial District are post -secondary institutions.
4. The City Council has determined that past requests to operate charter schools within the
Industrial District would require a code amendment.
5. A code amendment process to properly consider the use would allow for a public hearing and
consideration of potential land use conflicts that may have negative impacts on surrounding
properties and the public.
Adopted by the Board of Zoning Appeals of the City of Mendota Heights this twenty-third day of
June, 2015.
BOARD OF ZONING APPEALS
CITY OF MENDOTA HEIGHTS
Litton Field, Jr., Chair
ATTEST:
Lorri Smith, City Clerk
6/23/15 Board of Zoning Appeals Packet - Page 7
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2015-44
RESOLUTION GRANTING AN APPEAL FROM A ZONING DETERMINATION
WHEREAS, STEP Academy has requested an appeal from an interpretation of the text of the
City Code concerning the definition of a trade school, as proposed in Planning Case 2015-18; and
WHEREAS, the Mendota Heights Board of Zoning Appeals held a public hearing on this
matter at their regular meeting on June 23, 2015.
NOW THEREFORE BE IT RESOLVED by the Mendota Heights Board of Zoning Appeals
that the appeal from an interpretation of the text of the City Code, as proposed in Planning Case 2015-
18, is hereby granted based on the findings of fact that a charter school meets the definition of a trade
school.
Adopted by the Board of Zoning Appeals of the City of Mendota Heights this twenty-third day of
June, 2015.
BOARD OF ZONING APPEALS
CITY OF MENDOTA HEIGHTS
Litton Field, Jr., Chair
ATTEST:
Lorri Smith, City Clerk
6/23/15 Board of Zoning Appeals Packet - Page 8
Planning Case 2015-18 16 1 City of
1345 Mendota Heights Road N m Mendota
0 110
Date: 6/16/2015 j Heights
SCALE IN FEET
Ilk
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MENDOTA HEIGHTS RD
NORTHLAND DR
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GIS Map Disclaimer: p
This data is for informational purposes only and should not be substituted for a true title search, property appraisal, plat,
survey, or for zoning verification. The City of Mendota Heights assumes no legal responsibility for the information contained
in this data. The City of Mendota Heights, or any other entity from which data was obtained, assumes no liability for any errors
or omissions herein. If discrepancies are found, please contact the City of Mendota Heights.
Contact "Gopher State One Call" at 651-454-0002 for utility locations, 48 hours prior to any excavation.
6/23/15 Board of Zoning Appeals Packet - Page 9
i
APPLICATION FOR CONSIDERATION OF PLANNING REQUEST
'roposed Use:
Property Address/Street Location: v le,
Applicant Name: -57, Phone: 5i
Applicant E-MaiE Address: M11asGL r, I
�(evff pplicant Mailing Address: .4 lot, ill Jet* S'1
e-c-wPfeperty Name:crPhone:
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1l n,—.t;,-•_ :;. ^—,,wnsmr 11Rmilinn Arbimiea- I 'R I'] -LOA r-1 rl —
Legal Description & PIN of Property: (Complete Legal from Title or
J\ UC , I r! V 4t f
must be provided)
Type of Request:
C3, Rezoning ❑ Conditional Use Permit ❑ Conditional Use Permit for PUD
❑ Variance
❑ Wetlands Permit ❑ Preliminary/Final Plat Approval
❑ Subdivision Approval ❑ Critical Area Permit 0 Comprehensive Pian Amendment
13Code Amendment Q Lot Split �` Other � QP
I hereby declare that all statements made in this request and on the a{] R � a aterial are true.
I further authorize City Officials and agents to inspect the above property during daylight hours.
/z4j;71
-
SignaturO of Applicant X Date
Signature of Owner Date
Signature of Owner (if more than one) Date
Planning Application (modified 7/28/2014) Page 9 of 9
6/23/15 Board of Zoning Appeals Packet - Page 10
1101 biome Cwve I Mendota Heights, mN, 55118
651.452 SO phone 165=.4a2.a940 fax
vmw.mendo:a-heigh€s_c«m
crty OF
MENOOTA HEIGHTS
APPLICATION FOR CONSIDERATION OF PLANNING REQUEST
Office Use Only:
Case #:
Application Date:
Fee Paid.-
Staff
aid:
Staff Initials:
Applicable Ordinance #: Section:
Existing Zoning: Proposed Zoning:
Existing Use: Proposed Use-._
Property Address/Street Location:
Applicant Name:.
Applicant E -Mail Address:
Applicant Mailing Address:
Property Owner Name:_
Phone:
Daniel Schadegg Phone: 651-292-9933
Property Owner Mailing Address: 225 Bridgepoint Dr South St Paul, MN 55075
Legal Description & PIN of Property: (Complete Legal from Title or Deed must be provided)
Type of Request:
ZI Rezoning
❑ Variance
❑ Subdivision Approval
❑ Code Amendment
❑ Conditional Use Permit ❑ Conditional Use Permit for PUD
❑ Wetlands Permit
❑ Critical Area Permit
❑ Lot Split
❑ Preliminary/Final Plat Approval
❑ Comprehensive Plan Amendment
❑ Other
I hereby declare that all statements made in this request and on the additional material are true.
I further authorize City Officials and agents to inspect the above property during daylight hours.
Signatureof Applicant Date
0,,;/" Z6Sjs
Signature bf Owner U Date
Signature of Owner (if more than one) Date
Planning Appication (modified 1/28/2014) Page 1 of 1
CINDY L. L"ORATO
ATTORNEY AT LAW
April 17, 2015
Mr. Nolan Wall
Mendota Heights City Planning
Dear Mr. Wall:
6/23/15 Board of Zoning Appeals Packet - Page 11
VIA EMAIL ONLY
My name is Cindy Lavorato, and I am an attorney representing STEP Academy. I am
writing to formally request an opinion from you regarding whether STEP may lease space at
1345 Mendota Heights Rd, Mendota Heights, MN 55120 to operate a charter school.
I understand that the property in question is in an area zoned "industrial". As I read the
Mendota Heights City Code, a trade school is a permitted use in an industrially zoned area.
Trade school is defined broadly as "An educational institution, either private or public, which
offers classes and training to full and/or part time students including, but not limited to,
technical, mechanical, services and computing fields." I further understand that you previously
gave an informal opinion that a charter school could not qualify as a "trade school" under this
definition; however, I also understand that you never provided a formal, written opinion
concerning your conclusion or your rationale.
I am writing to formally request that you issue an opinion regarding whether STEP
Academy Charter School may lease the space referenced. above. STEP is a public educational
institution, as required by the definition. It is also offers classes to full time students, a second
requirement of the definition. What you may not have known prior to this time is that the name
"STEP" is an acronym for "Science, Technology, Engineering and Math"; thus the school is
thematically designed to provide training in the very fields contemplated by the city's zoning
ordinance. Finally, the current tenant is very much in favor of allowing STEP to sub -lease some
of its space; the co -location would support the mission of STEP to help prepare its students for
technology-based post -secondary education.
When we spoke by phone last week, you indicated that one factor that influenced your
initial interpretation was that historically only a post -secondary institution has occupied the
premises in that area, and that it was your understanding that the code had been drafted so as to
6/23/15 Board of Zoning Appeals Packet - Page 12
permit use by a post- secondary school. However, if the City Council had wished to limit tenants
to post -secondary institutions, the code could certainly have been drafted in that way. Moreover,
a fair reading of the language in the provision above indicates that it is to be read in an expansive
fashion because permissible uses include educational institutions that that offer classes and
training to students "including, but not limited to" those involved in "technical, mechanical,
services and computing fields".
I hope that you will re -consider your earlier, informal conclusion in light of this new in
information. Time is of the essence for my client so if you could advise me in writing of your
decision at your earliest convenience I would greatly appreciate it. My clients would also be
very happy to meet with you at your convenience to answer any remaining questions or concerns
you may have.
Thank you very much.
Sincerely,
LAVORATO LAW OFFICES LLC
By: sis
Cindy Lavorato
25 Paisley Lane
Golden Valley, MN 55422
(612) 868-9414
Cindy@edlaw.co
6/23/15 Board of Zoning Appeals Packet - Page 13
1101 Victoria Curve I Mendota Heights, NEN 55118
651.4523850 phone 1651.482,8940 fax
www.mendota-heights.com
LTi CITY OF
a _ MENDOTA HEIGHTS
April 24, 2015
Ms. Cindy Lavorato
Via Email: Cindy@edlaw.co
RE: Zoning Determination — STEP Academy Charter School
Dear Ms. Lavorato:
I am in receipt of your letter dated April 17, 2015, regarding the STEP Academy Charter School. In the letter, you
request an opinion as to whether or not STEP Academy Charter School can lease existing space at 1345 Mendota
Heights Road.
The property is located within the Industrial Zoning District. The Mendota Heights City Code allows "Trade
schools and colleges or universities, without accessory housing [12 -IG -11" as a permitted nonmanufacturing use.
I understand your position is that, based on the City Code's definition of trade school as "an educational institution,
either private or public, which offers classes and training to full and/or part time students including, but not limited
to, technical, mechanical, services and computing fields X12 -IB -21, " a charter school should be permitted.
Based on the existing City Code provisions, it is the City's position that a charter school is not included in the
"trade school" definition and is, therefore, not a permitted nonmanufacturing use in the Industrial District. Trade
school uses that occupy the Industrial District are post -secondary institutions, and not the secondary classification
under which the definition of a charter school would fall. The use category also includes "colleges or universities;"
both of which are post -secondary in nature, and were specifically discussed by the City Council and added by
Ordinance 391 in 2004.
The City has taken great care to support and maintain the industrial character of the Industrial District; had the City
intended to allow charter schools, the Code would have been amended to allow for secondary schools at that time.
A charter school would be considered consistent with the use category "public and parochial schools," which are
permitted within the residential zoning districts in the City.
According to Title 12-1L-3 of the City Code, if you or your client disagrees with this interpretation, this decision
can be appealed to the Planning Commission, which serves as the Board of Appeals. At any time within ninety
(90) days of the receipt of this lcttcr, a written notice must be submitted stating the action appealed from and stating
the specific grounds upon which the appeal is made. The City Council may review and revise any decision by the
Board of Appeals.
The City of Mendota Heights is proud to support several existing public and private school facilities. We
encourage your client to pursue a property that already allows for the use in compliance with the City Code.
Sincerely,
IA -142 -
Nolan
Wall, AICP cc/ec: Thomas R. Lehmann, City Attorney
Planner (via email: Tlehmann@eckberglammers.com)
Mark McNeill, City Administrator
6/23/15 Board of Zoning Appeals Packet - Page 14
.Aw I ^P.
CINDY L. L.A.VORATO 25 Paisley Lane
A'"y O P N E Y At LAW Golden Valley, Minnesota 55422
(612)868-9414
CindyC edlaw_co
June 17, 2015 VL4 EMAIL TO CITYPLANNER ONLY
Members of the Mendota Heights Planning Commission
City of Mendota Heights
1101 Victoria Curve
Mendota Heights, MN 55118
Dear Planning Commission Members:
My name is Cindy Lavorato, and I am an attorney representing STEP Academy Charter
School. I am writing to formally appeal the attached April 24, 2015 determination regarding Step
Academy's efforts to sub- lease property located at 1345 Mendota Heights Road, Mendota
Minnesota from Sanford -Brown College (SBC). I would Iike to provide some background about
STEP and SBC. I would also like to highlight some procedural issues involving the City council
and administration that should be before you as you consider this appeal. I will then provide STEP's
legal arguments in support of this appeal.
BACKGROUND
The .Stakeholders
STEP Academy is a public charter school serving students in grades 6-12. STEP"s vision
statement provides as follows:
MN STEP Academy is a 6-I2 Charter School in Inver Grove Heights, MN. It is our vision
to promote college -readiness by ensuring that all students are motivated to academic
excellence, can qualify to obtain college credit while in high school, are fully prepared to
1
6/23/15 Board of Zoning Appeals Packet - Page 15
enter college and graduate, with the critical knowledge and shills required for employment
in Science, Technology, Engineering, and Mathematics (STEM) careers. As a public school
open to all students, it also reaches out to students who are underserved by traditional
schools and are underrepresented within STEM fields.'
STEP's enrollment has been steadily increasing over the past two years, and the school has
outgrown its current setting. Approximately two months ago, a real estate agent for STEP located
space for the school at 1345 Mendota Heights Road, Mendota Minnesota currently occupied by
Sanford -Brown Collette (SBC)_ The space is 55,263 square feet within a 1 -story free standing
building with associated on-site parking. SBS has been actively marketing excess space for
sublease.
SBC offers a variety of degree granting programs and associate degrees at this space. One of
the attractions of the SBC location for both STEP and SBC is the fact that both educational
institutions offer classes and training in technology -related fields. For example, SBC offers a
bachelors in Technology Information (TI), and a certificate in both TI and broadcasting. SBC
representatives indicate that they have other schools within their campus network that are currently
subleasing to charter schools. That arrangement has had a very positive result for the students:
many that graduate fiom the charter school enroll in programs at SBC and obtain their degree.
Both parties were very enthusiastic about the prospect of the sublease and the synergistic
impact it would have on educational opportunities for STEP's students. STEP's current lease ends
on July 31, 2015 and so time was of the essence in attempting to secure an alternative site.
The City's Initial Position
The sublease was stalled when Mr. Nolan Wall verbally advised STEP's broker that a charter
school could not occupy the space unless the zoning code was amended because STEP is not a
'Available at: http://stepacademymn.com/index.php/component/content/`Iview--featured.
P]
6/23/15 Board of Zoning Appeals Packet - Page 16
"trade school" within the meaning of the ordinance. Mr. Wall failed to advise STEP's broker that
his informal opinion could be challenged and if necessary, appealed to the Planning Commission.
As a consequence, the parties concluded that the sublease could not be negotiated because it would
be impossible to amend the ordinance in time for an August 1, 2015 move -in date_
The Industrial Zone in Question
The industrial park zone contains a variety of widely different uses, including residential uses.
There appears to be a division between City administrators along with the Mayor, and a majority
of the City Council concerning whether and to what extent apparently "non -conforming" uses
should be considered within the industrial park zone. In January of 2015, Mr. Wall, on behalf of
the City, proposed an ordinance that would have placed a one year moratorium on applications for
conditional use permits within the industrial zone. The moratorium proposal was defeated by a
three to two vote, with the Mayor and one other council member voting in the minority for the
Moratorium.
When I became involved in this matter, l asked Mr. Wall to put his informal decision in writing.
I reviewed the applicable ordinances which suggested to me that Mr. Walls' interpretation—that
"trade school" did not include vocationally based schools unless they were past-secondary—was
erroneous. Again, Mr. Wail stated that the only way to contest his interpretation would be to
propose an amendment to the ordinance. Instead, I requested that Mr. Wall reduce decision to
writing so that it could be appealed if necessary. His decision is attached. I wrote to you as the
appellate body on May 14, 2015 to officially appeal that decision; apparently that appeal letter was
not provided to you at that time_
In the meantime, Mr. Wall drafted a proposed ordinance that would codify his interpretation
of the zoning ordinance by "writing out" K-12 vocational schools from the definition of "trade
3
6/23/15 Board of Zoning Appeals Packet - Page 17
school". The proposed amendment was published on May 10, 2015, just four days before STEP
filed its appeal of Mr. Wall's determination. Neither STEP Academy nor Sanford Brown
College -clearly both of whom are stakeholders in this matter—were consulted or even advised
that the City was planning to propose this amendment.
As you are aware, as a body you voted to table the proposed ordinance amendment because
the rationale for the amendment was not clearly presented at your meeting on May 26, 2015.
During that meeting, Mr. Wall indicated that more than one charter school had approached the
City informally to ask whether they could operate in the area zoned as industrial and there was a
concern that the ordinance should be amended to reflect the City's "intent". No further rationale
was provided for the change being proposed.
In the meantime, STEP and Sanford Brown College have renewed their negotiations regarding
a sub -lease and have reached a tentative agreement. On behalf of STEP Academy, and with the
support of representatives of Sanford Brown College, we write to both oppose the City's proposed
ordinance amendment and to request that you reverse Mr. Wall's determination that STEP
Academy may not sub --lease property from Sanford Brown College.
LEGAL ARGUMENT
1. THE RATIONALE FOR DENYING THE PROPOSED USE IS INCONSISTENT
WITH THE PLAIN MEANING OF THE ORDINANCE,
Courts apply the rules of statutory construction to municipal ordinances and. resolutions.
Eagan Econ. Dev. Auih. v. U -Haul Co. of'Minn., 787 N.W.2d 523, 535 (Minn. 2010). The object
of statutory interpretation is to ascertain and effectuate the intention of the legislative body. Minn_
Stat. § 645.16 (2012). The "touchstone" for statutory interpretation is the plain meaning of the
language itself. 1LHC of Eagan, LLC v_ Cnty. of Dakota, 593 N.W.2d 412, 419 (Minn. 2005).
4
6/23/15 Board of Zoning Appeals Packet - Page 18
Words and phrases are construed according to their common and approved usage. Minn. Stat. §
645.08(1) (2014).
The principles of construction for interpreting and applying a zoning ordinance are as
follows: first, courts generally strive to construe a term according to its plain and ordinary meaning.
Second, zoning ordinances should be construed strictly against the City and in favor of the property
owner. Third, a zoning ordinance must always be considered in light of its underlying policy. AS
P'ship v. City of'Apple Valley, 511 N, W. 2d 738, 741 (Minn. 1994) (alteration in original) (quoting
Frank's Nursery Sales, Inc. v. City of'Roseville, 295 N.W.2d 604, 608- 09 (Minn. 1980)),
When interpreting an ordinance, courts look first to whether the language, on its face, is
clear or ambiguous. Motokazie! Inc. v. Rice Cnty_, 824 N.W.2d 341, 344 (Minn. App. 2012). If the
language of the ordinance is clear and unambiguous, statutory construction is "neither necessary
nor permitted" and the court must apply the ordinance's plain meaning. Am_ Tower, LP- v. City of
Grant, 636 N.W.2d 309, 312 (Minn. 2001). in matters of statutory construction, a statute is only
ambiguous when the language is subject to more than one reasonable interpretation. Motokazie!
Inc., 824 N.W.2d at 344.
Although the City planner would like to argue that there is an ambiguity in the ordinance in
question, STEP Academy takes issue with that position. There is no ambiguity in the zoning
ordinance at issue.; it plainly permits educational institutions of any grade level to operate within
the Industrial Zone. The only limitation on use pertains to the type of training being offered, not
the grade level at which it is offered. Specifically, the ordinance defines "trade school" as " [1] an
educational institution, [2] either private or public, [3] which offers classes and training [4] to full
and/or part time students, [5] including, but not limited to, technical, mechanical, services and
computing fields". [12-113-2].
5
6/23/15 Board of Zoning Appeals Packet - Page 19
Moreover, use of the term "school" further suggests that the grade level of the educational
institution is not relevant to whether the use is permitted. If the City had wished to limit the grade
levels of the educational institution, the City could have defined trade school as a "profit or not for
profit post -secondary institution". Alternatively the City could have expressly stated that "grammar
schools", or schools in grades K-12 were prohibited. The City included neither in its definition.
Since the language of this ordinance is clear and unambiguous, statutory construction is
"neither necessary nor permitted" and a reviewing court will apply the ordinance's plain meaning.
Am. Tower, L.P. v City of Grant, 636 N.W.2d 309, 312 (Minn. 2001). STEP requests that the
Planning Commissioner also interpret the zoning ordinance in a manner that is consistent with its
plain meaning,
II. THERE IS NOTHING IN THE ORDINANCE EXPRESSLY LIMITING USES IN
THE INDUSTRIAL ZONE TO POST SECONDARY SCHOOLS.
"... LR]estriction[s] on land use must be clearly expressed". Mendota Gol,' LLP, vs. City
of Mendota Heights, 708 N.W.2d 162, 172, (2006) (emphasis added). "Generally, courts will
narrowly construe any restrictions that a zoning ordinance imposes upon a property owner"
Mendota Golf, LLP, vs. City of Mendota Heights, supra, citing Frank's Nursery Sales, Inc. v. City
of Roseville, 295 N.W.2d 604, 608-09 (Minn. 1980) ("we must give weight to the interpretation
that, while still within the confines of the term, is least restrictive upon the rights of the property
owner to use his land as he wishes").
There is nothing in the City Ordinances that clearly and expressly prohibits a K-12 school
serving students studying technology from operating in the Industrial Zone. Ironically, the City's
efforts to amend the ordinance only serve to substantiate the obvious conclusion that the prohibition
now being proposed is neither clear• nor express.
6/23/15 Board of Zoning Appeals Packet - Page 20
As indicated above, the Code defines a "trade school" as " [ 1 ] an educational institution,
[2] either private or public, [3] which offers classes and training [4] to full and/or part time students,
[5] including, but not limited to, technical, mechanical, services and computing fields". [12-1B-2].
Furthermore, the zoning ordinance itself is drafted in an expansive fashion, rather than a restrictive
fashion, to include schools that offer classes and training in subject areas "...including, but not
limited to, technical, mechanical, services and computing fields". [12-113-2]. This too demonstrates
that the original intent of the ordinance was to include, rather than exclude, the types of schools that
could operate in the Industrial Zone.
Most importantly, STEP Academy meets all five of the plainly stated ordinance
requirements. First, STEP Academy is an educational institution, meeting the fust requirement of
the ordinance. Second, STEP is a public charter school, meeting the second requirement of the
ordinance.' Third, STEP offers classes and training, (meeting the third requirement of the
ordinance) to full time students-- thus meeting the fourth requirement of the ordinance. And finally,
and perhaps most importantly, STEP is an acronym for "Science, Technology, Engineering and
Math"; the school is thematically designed to provide training in the very fields contemplated by
the City's zoning ordinance.
In his initial zoning determination, the City Planner attempted to graft a limiting definition
onto the plain meaning of this ordinance by suggesting that a charter school is "consistent" with the
use category "public and parochial schools, which are permitted with the residential zoning districts
in the City". However, the fact that a charter school might meet the requirements of permitted uses
in residential zones does not mean that such a use is expressly disallowed in the Industrial Zone. If
the City had wished to disallow vocational K-12 schools in the Industrial Zone, the City should
z Minn. Stat. § 124D.10 subd. 7 dekines charter schools as follows: "A charter school is a public school and is part of
the state's system of public education....".
7
6/23/15 Board of Zoning Appeals Packet - Page 21
have expressly prohibited such uses. A court would very likely conclude that the City may not now
retroactively attempt to re -define the ordinance in a fashion that prevents a landowner from using
the property in a manner that is consistent with the plain meaning of the ordinance.
III. IT IS ARBITRARY TO TREAT A TECHNOLOGY BASED CHARTER SCHOOL
DIFFERENTLY FROM A FOR PROFIT SCHOOL THAT OFFERS THE SAME
TYPE OF TRAINING TO ITS COLLEGE AGE STUDENTS.
"... [B]y statute, zoning regulations must be uniform for each class or kind of buildings,
structures, or land and for each class or kind of use throughout [a zoning] district. Minn.
Stat. 462.357, subd. 1 (2004)." Mendota Heights, supra. When a zoning classification treats
similarly situated individuals differently, there must be rational reason for the unequal treatment
that bears a relation to the purposes of the ordinance (protection of the health, safety and welfare of
the public). If no such reasonable or rational justification can be found, a court may decide that the
City has been arbitrary. See e.g. State v. Northwestern Preparatory School, 37 N.W_2d 370 (Minn.
1949).
Absolutely no rationale related to the health and safety of its citizens has been given for
treating a charter school serving K-12 students studying technology differently frown a private post-
secondary school serving students who have recently left high school. The unreasonableness of
such an interpretation is heightened when one realizes that, under Minnesota's Post Second
Enrollment Options Act' a high school student at STEP Academy could enroll in and take courses
at Sanford Brown College while .still enrolled at STEP. In other words, the uses in the area are the
same; the only difference is the age of the individuals engaged in the use.
The only "rationale" given for the City's current interpretation is that " [t]he City has taken
great care to support and maintain the industrial character of the Industrial District". However, no
3 Mim. Stat. § 124D.09.
0
6/23/15 Board of Zoning Appeals Packet - Page 22
explanation is given regarding how that "industrial character" would be impacted if a charter school
student could study technology in the Industrial Zone. Furthermore, in point of fact the City has not
taken great care to support and maintain the industrial character of the Industrial District, as the
discussion at the City Council meeting in January of 2015 clearly indicates.4 The Mayor
acknowledged that the City has not planned for or even studied how the current industrial zone
should be utilized for several years. Moreover, at the January 2015 meeting Mr. Wall admitted that
the industrial area had been a "mixed use" zone-- including residential uses for quite some time.
Finally, citing a need to maintain a vague and undefined "industrial character" bears no relationship
to protecting the protection of the health. safety and welfare of the public.
IV. THE CITY'S ATTEMPT TO REDEFINE "TRADE SCHOOL" IS NOTHING MORE
THAN AN ATTEMPT TO ZONE STEP ACADEMY OUT OF THE AREA.
At the Planning Commission meeting on May 26, 2015, one of the members asked the
"why now?" question: why is the City proposing to amend an ordinance that was enacted almost
twelve years ago? The answer to that question is perhaps the most telling aspect of this entire
matter. The City's attempt to "clarify" the current definition of "trade school" is an admission of
the fact that the ordinance as it currently exists clearly does not preclude STEP Academy front sub-
leasing the property.
This attempt to circumvent an applicant's efforts to challenge a zoning determination is an
arbitrary and capricious action that Minnesota courts have disallowed. For example, in Interstate
Power Company, Inc. v. Nobles County, 617 N.W.2d S66 (Minn. 2000) the Supreme Court
considered an analogous situation in which Nobles County attempted to amend is zoning ordinance
to preclude IPC`s conditional use application before it was remanded by the court for
'Available at: http://townsguarety.granicus.cant[MediaPlatier.php?view_id=?&: cliff id=6646.
.7
6/23/15 Board of Zoning Appeals Packet - Page 23
reconsideration. The Court held that application of the zoning ordinance to respondent's project
would have been arbitrary and capricious because appellant adopted the amendment expressly to
circumvent the scope of the appellate court's remand. Id. at 579.
The comparisons to the present case cannot be disputed. According to the City's own
documents, this ordinance has been in effect for over eleven years. In that time, apparently no effort
was made to amend the ordinance to limit it to post -secondary institutions. It is only now—when
the city's interpretation of the ordinance is beim; challenged—that the City perceives a need to
"clarify" the ordinance. In reality, this is not a clarification, it is an effort to circumvent this school's
legitimate efforts to occupy a space that has been vacant for some time.
Finally, there is a subtext to the City's actions that must be addressed. During the meeting
before this Commission on May 26, 2015, the City admitted that STEP was not the first charter
school to ask whether it could lease space in the area zoned as industrial. Why would the City find
it necessary to go so far as to amend an ordinance to zone out a K-12 school when it is not the first
time that a school has made this request? Could it be because the school serves primarily Somalian
students? It is a disturbing question, but one that must be raised,
CONCLUSION
In conclusion, STEP respectfully submits that the interpretation being urged is not
consistent with the plain meaning of the ordinance_ Further, there is no express limitation
supporting this interpretation. Finally, the interpretation is arbitrary and bears no relationship
whatsoever to protecting the health safety and welfare of the public. The School therefore requests
that the April 24, 2015 decision of the City Planner be reversed.
10
6/23/15 Board of Zoning Appeals Packet - Page 24
Sincerely,
LAVOF.ATO LAW OFFICES L.L.C.
By: Cindy L. Lavorato
11
6/23/15 Board of Zoning Appeals Packet - Page 25
CINDY L. L AVORATO 25 Paisley Lane
' A- oRNEY A LA ; Golden Valley, Minnesota 55422
(612) 868-9414
Cindy@aedlaw.co
May 14, 2015
Members of the Mendota Heights Planning Commission VL4 EMAIL ONLY
City of Mendota Heights
1101 victoria Curve
Mendota Heights, MN 55118
Re: Appeal of attached Determination Letter
Dear Commission Members:
My name is Cindy Lavorato, and I am an attorney representing STEP Academy. I am
writing to formally appeal the attached April 24, 2015 determination regarding Step Academy's
efforts to sub- lease property located at 1345 Mendota Heights Road, Mendota Minnesota. I will
give some background about STEP and the sub -lessor before I provide our legal arguments in
support of this appeal.
BACKGROUND
STEP Academy is a public charter school serving students in grades 6-12. STEP's vision
statement provides as follows:
MN STEP Academy is a 6-12 Charter School in Inver Grove Heights, MN. It is our
vision to promote college -readiness by ensuring that all students are motivated to
academic excellence, can qualify to obtain college credit while in high school, are fully
prepared to enter college and graduate, with the critical knowledge and skills required for
employment in Science, Technology, Engineering, and Mathematics (STEM) careers. As
a public school open to all students, it also reaches out to students who are underserved
by traditional schools and are underrepresented within STEM fields.1
1 Available at: http://stepacademymn.com/index.php/component/content/?view=featured.
1
6/23/15 Board of Zoning Appeals Packet - Page 26
STEP's enrollment has been steadily increasing over the past two years, and the school
has outgrown its current setting. Approximately two months ago, a real estate agent for STEP
located space for the school at 1345 Mendota Heights Road, Mendota Minnesota currently
occupied by Sanford -Brown College (SBC). The space is 55,263 square feet within a 1 -story
free standing building with associated on-site parking. SBS has been actively marketing excess
space for sublease.
SBC offers a variety of degree granting programs and associate degrees at this space.
One of the attractions of the SBC location for both STEP and SBC is the fact that both
educational institutions offer classes and training in technology -related fields. For example, SBC
offers a bachelor's in Technology Information (TI), and an associate's degree in both TI and
radio broadcasting. SBC also offers an associate's degree in medical assistant and pharmacy
technician- again, both areas that are consistent with STEP's emphasis on science as an area of
study. SBC representatives indicate that they have other schools within their campus network
that are currently subleasing to charter schools. That arrangement has had a very positive result
for the students: many that graduate from the charter school enroll in programs at SBC and
obtain a degree.
Both parties were very enthusiastic about the prospect of the sublease and the synergistic
impact it would have on educational opportunities for STEP's students. However, the sublease
was stalled when Mr. Nolan Wall advised STEP's broker that a charter school could not occupy
the space unless the zoning code was amended.
I reviewed the applicable ordinances and requested that Mr. Wall reduce his decision to
writing. See attached letter dated April 17, 2015. Mr. Wall's response and determination is
2
6/23/15 Board of Zoning Appeals Packet - Page 27
attached. I am writing to formally appeal that determination, and Mr. Wall's interpretation of the
City Code, pursuant to 12 -1L -3:A of the Mendota Heights City Code.
LEGAL ARGUMENT
I. THE RATIONALE FOR DENYING THE PROPOSED USE IS INCONSISTENT
WITH THE PLAIN MEANING OF THE ORDINANCE.
Courts apply the rules of statutory construction to municipal ordinances and resolutions.
Eagan Econ. Dev. Auth. v. U -Haul Co. of Minn., 787 N.W.2d 523, 535 (Minn. 2010). The object
of statutory interpretation is to ascertain and effectuate the intention of the legislative body.
Minn. Stat. § 645.16 (2012). The "touchstone" for statutory interpretation is the plain meaning of
the language itself ILHC of Eagan, LLC v. Cnty. of Dakota, 693 N.W.2d 412, 419 (Minn. 2005).
Words and phrases are construed according to their common and approved usage. Minn. Stat. §
645.08(1) (2014).
The principles of construction for interpreting and applying a zoning ordinance are as
follows: first, courts generally strive to construe a term according to its plain and ordinary
meaning. Second, zoning ordinances should be construed strictly against the city and in favor of
the property owner. Third, a zoning ordinance must always be considered in light of its
underlying policy. SLS P'ship v. City of Apple Valley, 511 N.W.2d 738, 741 (Minn. 1994)
(alteration in original) (quoting Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604,
608- 09 (Minn. 1980)).
When interpreting an ordinance, courts look first to whether the language, on its face, is
clear or ambiguous. Motokazie! Inc. v. Rice Cnty., 824 N.W.2d 341, 344 (Minn. App. 2012). If
the language of the ordinance is clear and unambiguous, statutory construction is "neither
necessary nor permitted" and the court must apply the ordinance's plain meaning. Am. Tower,
3
6/23/15 Board of Zoning Appeals Packet - Page 28
L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001). In matters of statutory construction, a
statute is only ambiguous when the language is subject to more than one reasonable
interpretation. Motokazie! Inc., 824 N.W.2d at 344.
There is no ambiguity in the zoning ordinance at issue.; it plainly permits educational
institutions of any grade level to operate within the Industrial Zone. The only limitation on use
pertains to the type of training being offered, not the grade level at which it is offered.
Specifically, the ordinance defines "trade school" as " [1] an educational institution, [2] either
private or public, [3] which offers classes and training [4] to full and/or part time students, [5]
including, but not limited to, technical, mechanical, services and computing fields". [12-1B-2].
Moreover, use of the term "school" further suggests that the grade level of the educational
institution is not relevant to whether the use is permitted. If the City had wished to limit the
grade levels of the educational institution, the City could have defined trade school as a "profit or
not for profit post -secondary institution". Alternatively the City could have expressly stated that
"grammar schools", or schools in grades K-12were prohibited. The City included neither in its
definition.
Since the language of this ordinance is clear and unambiguous, statutory construction is
"neither necessary nor permitted" and a reviewing court will apply the ordinance's plain
meaning. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001). STEP requests
that the Planning Commission also interpret the zoning ordinance in a manner that is consistent
with its plain meaning.
H. THERE IS NOTHING IN THE ORDINANCE EXPRESSLY LIMITING USES IN
THE IND USTRIAL ZONE TO POST SECONDARY SCHOOLS.
"... [R]estriction[s] on land use must be clearly expressed" Mendota Golf, LLP, vs. City
of Mendota Heights, 708 N.W.2d 162, 172, (2006) (emphasis added). "Generally, courts will
4
6/23/15 Board of Zoning Appeals Packet - Page 29
narrowly construe any restrictions that a zoning ordinance imposes upon a property owner".
Mendota Golf, LLP, vs. City of Mendota Heights, supra, citing Franks Nursery Sales, Inc. v.
City of Roseville, 295 N.W.2d 604, 608-09 (Minn. 1980) ("we must give weight to the
interpretation that, while still within the confines of the term, is least restrictive upon the rights of
the property owner to use his land as he wishes").
There is nothing in the City Ordinances that expressly prohibits a school serving students
studying technology from operating in the Industrial Zone. As indicated above, the Code defines
a "trade school" as "[1] an educational institution, [2] either private or public, [3] which offers
classes and training [4] to full and/or part time students, [5] including, but not limited to,
technical, mechanical, services and computing fields". [12-1B-2].
Furthermore, the zoning ordinance itself is drafted in an expansive fashion, rather than a
restrictive fashion, to include schools that offer classes and training in subject areas
"...including, but not limited to, technical, mechanical, services and computing fields". [12-lB-
2]. This too demonstrates that the original intent of the ordinance was to include, rather than
exclude, the types of schools that could operate in the Industrial Zone.
Most importantly, STEP Academy meets all five of the plainly stated ordinance
requirements. First, STEP Academy is an educational institution, meeting the first requirement
of the ordinance. Second, STEP is public charter school, meeting the second requirement of the
ordinance.2 Third, STEP offers classes and training, (meeting the third requirement of the
ordinance) to full time students,-- thus meeting the fourth requirement of the ordinance. And
finally, and perhaps most importantly, STEP is an acronym for "Science, Technology,
z Minn. Stat. § 124D.10 subd. 7 defines charter schools as follows. "A charter school is a public school and is part of
the state's system of public education....".
5
6/23/15 Board of Zoning Appeals Packet - Page 30
Engineering and Math"; the school is thematically designed to provide training in the very fields
contemplated by the city's zoning ordinance.
The City Planner has attempted to graft a limiting definition onto the plain meaning of
this ordinance by suggesting that a charter school is "consistent" with the use category "public
and parochial schools, which are permitted with the residential zoning districts in the City".
However, the fact that a charter school might meet the requirements of permitted uses in
residential zones does not mean that such a use is expressly disallowed in the Industrial Zone. If
the City had wished to disallow public high schools in the Industrial Zone, the City should have
expressly prohibited such uses. A court would very likely conclude that the City may not now
retroactively attempt to re -define the ordinance in a fashion that prevents a landowner from
using the property in a manner that is consistent with the plain meaning of the ordinance.
III. IT IS ARBITRARY TO TREAT A TECHNOLOGY BASED CHARTER SCHOOL
DIFFERENTLY FROM A FOR PROFIT SCHOOL THAT OFFERS THE SAME
TYPE OF TRAINING TO ITS COLLEGE AGE STUDENTS.
"... [B]y statute, zoning regulations must be uniform for each class or kind of buildings,
structures, or land and for each class or kind of use throughout [a zoning] district. Minn.
Stat. 462.357, subd. 1 (2004)." Mendota Heights, supra. When a zoning classification treats
similarly situated individuals differently, there must be rational reason for the unequal treatment
that bears a relation to the purposes of the ordinance (protection of the health, safety and welfare
of the public). If no such reasonable or rational justification can be found, a court may decide
that the city has been arbitrary. See e.g. State v. Northwestern Preparatory School, 37 N.W.2d
370 (Minn. 1949).
Absolutely no rationale related to the health and safety of the City's citizens has been
given for treating a charter school serving school students studying technology differently from a
private post -secondary school serving students who have recently left high school. In fact, there
6/23/15 Board of Zoning Appeals Packet - Page 31
is no reference to or finding that STEP's use of the property in question is inconsistent with or
contradicts any of the provisions in 12-1A-2. Moreover, disallowing STEP's use is not consistent
with one of the primary tenants of the City's zoning ordinance, which is "[p]roviding for the
compatibility of different land uses and the most appropriate use of land throughout the city."
12 -1A -2.G. The students at STEP and Sanford -Brown College are engaging in compatible and
in fact identical uses. The unreasonableness of the current interpretation is underscored by the
fact that, under Minnesota's Post Second Enrollment Options Acts a high school student at
STEP Academy could enroll in and take courses at Sanford Brown College while still enrolled at
STEP. In other words, the uses in the area, and perhaps even the students in some instances,
would be the same; the only difference is the age of the individuals engaged in the use.
The singular "rationale" given for the City's current interpretation is that "[t]he City has
taken great care to support and maintain the industrial character of the Industrial District".
However, no explanation is given regarding how that "industrial character" would be impacted if
a charter school student could study technology in the Industrial Zone. Furthermore, citing a
need to maintain a vague and undefined "industrial character" bears no relationship to protecting
the protection of the health, safety and welfare of the public.
CONCLUSION
In conclusion, STEP respectfully submits that the interpretation being urged is not
consistent with the plain meaning of the ordinance. Further, there is no express limitation
supporting this interpretation. Finally, the interpretation is arbitrary and bears no relationship
whatsoever to protecting the health safety and welfare of the public. The School therefore
requests that the April 24, 2015 decision of the City Planner be reversed.
3 Minn. Stat. §124D.09.
7
6/23/15 Board of Zoning Appeals Packet - Page 32
Sincerely,
LAVORATO LAW OFFICES L.L.C.
By:
Cindy L. Lavorato
ATTORNEY FOR STEP ACADEMY
6/23/15 Board of Zoning Appeals Packet - Page 33
ECKBERG LAMMERS
MEMO
To: Mendota Heights Planning Commission Members
From: Thomas R. Lehmann, City Attorney
Date: June 8, 2015
Re: Zoning Appeal of Step Academy Charter School
Mendota Heights, City of — 25373-24159
The purpose of this Memo is to outline both the procedural requirements for a zoning appeal, as
well as the legal arguments regarding the appeal by Step Academy Charter School to the decision
of Nolan Wall, Planner, pertaining to the interpretation of the City in that the recent application by
Step Academy Charter School to establish a charter school (grades 6-12) in the industrial district
of the City of Mendota Heights is not authorized pursuant to Mendota Heights City Code 12-1G-
1.
A city that has adopted a zoning ordinance or official map should provide for a board of zoning
adjustment and appeals. By ordinance, the City of Mendota Heights has delegated the role of
zoning appeals to the City Planning Commission pursuant to Mendota Heights City Code 12-1L-
3, which provides at Paragraph A Board of Appeals; Planning Commission serve as: The
planning commission is designated as the Board of Zoning Appeals and shall determine, in
harmony with the general purpose of this Chapter and a comprehensive plan, by resolution, all
appeals from any order, requirement, permit or decision made by the zoning administrator under
this Chapter, and from any interpretation of the text of this Chapter, or any determination by the
zoning administrator as to the location of the boundary of the zoning district as shown on the
zoning map. In addition, Mendota Heights City Code 12-1L-3 Paragraph C outlines the duties and
responsibilities for said appeal. Specifically, the Planning Commission, as the Board of Zoning
Appeals, may conduct such hearings as it may deem advisable and shall prescribe what notice, if
any, shall be given of such hearing. Finally, the Code sets forth the procedure in the event that the
applicant wishes to appeal ultimately the decision by the Board of Zoning Appeals and said
procedure for that. Specifically, Subdivision D sets forth that the Council may review and revise
any decision of the Board of Zoning Appeals. In reviewing such decisions, the Council shall set
a date for hearing thereon, not earlier than seven (7) days after nor more than thirty (30) days after
the decision is made by the Board of Zoning Appeals.
The practical procedure for said appeal is set forth in Minnesota Statute §462.354, subdivision 2.
The hearing is run like a normal Planning Commission meeting wherein a decision will be made
by the planning commission with regards to the circumstances brought forth. To the extent this is
an appeal does not change the overall procedure. The statue sets forth that any party may appear
at the hearing in person or by agent or attorney. In this case the Planning Commission Chair should
call the meeting to order and depending on where in the agenda the appeal is, ask the appellant,
and in this case Step Academy Charter School, to come forward and to present their position. As
1 of 4
6/23/15 Board of Zoning Appeals Packet - Page 34
indicated, the appellant may call witnesses. To the extent that witnesses are called, they should be
administered an oath. I will be present at the hearing and I will administer the oath to any witnesses
that are going to testify before the Planning Commission. The appellant may file any written briefs
that it may want to and a record of the proceeding shall be kept. Once the appellant has presented
their case, it will be up to the Respondent and in this case the Planning Staff for the City of Mendota
Heights, to present their interpretation. At that point, the matter will be taken under advisement at
which time a written decision would need to be made and adopted by the Board of Zoning Appeals.
The decision by the Board is subject to the 60 -day rule pursuant to Minnesota Statute § 15.99.
STANDARDS FOR REVIEW
When drafting and adopting a zoning ordinance, cities have enormous discretion in choosing their
language and specifying uses as permitted, prohibited or conditional in particular districts. When
drafting and adopting a zoning ordinance, the city is said to be utilizing its legislative (or
lawmaking) authority. When using its legislative authority, the only limits on the city's zoning
authority are that action must be constitutional, rational, and in some way related to protecting the
health, safety and welfare of the public. This is known as the "rational basis standard" and is
generally a very friendly standard for cities to meet.
In contrast, when administering an existing zoning ordinance as is the case here, the city's
discretion is much more limited. Generally, when reviewing a zoning application, the city is no
longer acting in its legislative capacity. When reviewing zoning applications, the city is said to be
exercising a quasi-judicial function. Rather than legislating for the broad population as a whole,
the city is making a quasi-judicial (judge -like) determination about an individual zoning
application regarding whether the application meets the standards of the city ordinance.
In quasi-judicial circumstances, the city must follow the standards and requirements of the
ordinance it is adopted. If an application meets the requirements of the ordinance, generally it
must be granted. If an application is denied, the stated reasons for the denial must all relate to the
applicant's failure to meet standards established in the ordinance. In some, the city has a great
deal of liberty to establish the rules, but once established, the city is as equally bound by the rules
as the public.
In the present case, the appeal is a quasi-judicial matter and is subject to the requirements as set
forth above. In quasi-judicial situations, a review in court will closely scrutinize the city's decision
to determine whether the city has provided a legally and factually sufficient basis for denial of an
application.
In quasi-judicial situations, due process and equal protection are the main reasons for the more
stringent scrutiny. Due process and equal protection under the law demand that similar applicants
must be treated uniformly by the city. The best process for ensuring similar treatment among
applicants is to establish standards in the ordinance and to provide that if standards are met, the
zoning permit must be granted. An application may generally only be denied for failure to meet
the standards in city ordinances.
2 of 4
6/23/15 Board of Zoning Appeals Packet - Page 35
A review in court will overrule a quasi-judicial city zoning decision if it determines that the
decision was arbitrary (fail to treat situated applicants equally or failed to follow ordinance
requirements).
As indicated above, in order to be successful if this matter is challenged in the courts, it will be
crucial for the adoption of appropriate findings of fact. Findings of fact are essential because they
enable a review in court to sustain a city zoning decision. When land use decisions are challenged
in court, the standards of review used by the courts are very limited. The city's decision will be
upheld if the findings of fact demonstrate a rational and legally sufficient basis for the decision
that is not arbitrary or capricious. Findings of fact should state all of the relevant facts the city
considered in making its decision on the zoning application. A fact is relevant if it proves or
disproves that the application meets the legal standards of the city ordinance and state law for
granting the zoning request.
In the present case, the appellant sets forth their initial arguments in a letter brief dated May 14,
2015. A review of the brief is inconsistent with the city's determination that the applicant and the
request to establish a grade 6-12 charter school is inconsistent with the zoning code for the City of
Mendota Heights. The appellant goes to great lengths to educate the planning commission with
regards to rules of construction. However, that argument is misplaced with regards to the status
of this matter. The Appellant seems to be arguing that the interpretation by them of the code
establishes that the charter school is allowed and the city's interpretation is ambiguous. The clear
reading of the code supports Mr. Wall's interpretation.
Finally, it is somewhat confusing as to what the appellant seems to be asking for in the sense if
there asking to have some sort of variance. A variance is a way that a city may allow an exception
to part of a zoning ordinance. It is a permitted departure from strict enforcement of the ordinances
applied to a particular piece of property. A variance is generally for a dimensional standard (such
as setbacks or height limits). A variance allows the landowner to break the dimensional zoning
rule that would otherwise apply. Sometimes, and in this case, the landowner will seek a variance
to allow particular use of their property that would otherwise not be permissible under the zoning
ordinance. Such variances are often termed "use variances" as opposed to "area variances" from
dimensional standards. Use variances are not allowed in Minnesota. State law prohibits the City
from permitting by variance any use that is not permitted under the ordinance for the zoning district
where the property is located.
In this case, a limited review of what the appellant has provided seems to be indicating that they
want the City to allow them to have a different use which as indicated above is not allowed under
Minnesota law.
Minnesota law provides that requests for variances may be heard by a body called the Board of
Adjustments and Appeals and in this case that may be exactly, in a convoluted way, what the
appellant is asking for. If that is in fact the case then I want to just outline again the requirements
for granting variances in the State of Minnesota.
A variance may be granted if enforcement of the zoning ordinance provisions as applied to a
particular piece of property caused the landowner "practical difficulties". For the variance to be
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6/23/15 Board of Zoning Appeals Packet - Page 36
granted, the applicant must satisfy the statutory three -factor test for practical difficulties. If the
applicant does not meet all three of the statutory tests then a variance should not be granted. Also,
variances are only permitted when they are in harmony with the general purpose and intent of the
ordinance and when the terms of the variance are consistent with the comprehensive plan.
"Practical difficulties" is a legal standard set forth in law that cities must apply when considering
applications for variances. It is a three -factor test and applies to all requests for variances. To
constitute practical difficulties, all three factors of the test must be satisfied.
1. Reasonableness. The first factor is that the property owner proposes to use the
property in a reasonable manner. This factor means that the landowner would like
to use the property in a particular reasonable way but cannot do so under the rules
of the ordinance. It does not mean that the land cannot be put to any reasonable use
whatsoever without the variance. For example, if the variance application is for a
building too close to a lot line or does not meet the required setback, the focus of
the first factor is whether the request to place a building there is reasonable.
2. Uniqueness. The second factor is that the landowner's problem is due to
circumstances unique to the property not caused by the landowner. The uniqueness
generally relates to the physical characteristics of the particular piece of property
that is to the land and not personal characteristics or preferences of the landowner.
When considering the variance for a building to encroach or intrude into a setback,
the focus of this factor is whether there is anything physically unique about the
particular piece of property such as sloping, topography, or other natural features
like wetlands or trees.
3. Essential Character. The third factor is that the variance, if granted, will not alter
the essential character of the locality. Under this factor, consider whether the
resulting structure will be out of scale, out of place, or otherwise inconsistent with
the surrounding area. For example, when thinking about the variance for an
encroachment into a setback, the focus is how the particular building will look
closer to a lot line and if that fits in with the character of the area.
If this is in fact a use variance, the decision is easy for the Planning Commission sitting as the
Board of Appeals. If for some other reason they set forth a variance then it will have to be looked
at with regards to the statutory requirements under the practical difficulties standard. In either
event, it is my opinion that City Staff correctly followed the law and its interpretation of the zoning
code relative to this issue and as a result Step Academy's request would not fit within the zoning
requirements of the Mendota Heights Zoning Code and should be denied.
TRL
c: Mark McNeill, City Administrator
Nolan Wall, Planner
4 of 4
6/23/15 Board of Zoning Appeals Packet - Page 37
CITY OF MENDOTA HEIGHTS
MEMO
March 16, 2000
TO: Mayor, City Council and City A04'' s or
FROM: James E. Danielson, Public Works Dire to
SUBJECT: Fort Snelling Academy Zoning Amendment
Concept Discussion
DISCUSSION:
On Tuesday, March 14', Kevin, Pat and I met with Mr. Peter Kordell, Fort Snelling
Academy President, and Dr. Mike Bennett, Fort Snelling Academy Headmaster to discuss the
concept of locating their charter High School in Mendota Heights. At that meeting, Mr.
Kordell and Dr. Bennett presented us with the details of a proposal to locate their school at the
Metro II building within the City's Business Park. They are attempting to acquire a building,
remodel it and be ready to open in the fall of 2000. Because of that ambitious time frame, they
need to be on tonight's agenda in order to determine if Council will allow them to operate in
the Metro H building.
The Fort Snelling Academy Charter High School (FSA) was awarded its charter with
the intention of remodeling several historic buildings at Fort Snelling for their campus. They
encountered several roadblocks and will not be able to locate at Fort Snelling for several years.
They have therefore selected Mendota Heights as their alternate location and have come to an
agreement to acquire the Metro H building in our Business Park as their facility. The Metro H
building is located on Mendota Heights Road at Enterprise Drive which is an "I" zoned piece
of property. The "I" zone currently permits trade schools such as Brown Institute but does not
permit any other type of school. Fort Snelling Academy's agreement with Metro H to
purchase this building is subject to the City changing the Ordinance to allow their facility.
Mr. Kordell and Dr. Mike Bennett will attend this meeting to discuss with Council the
possibility of amending our Zoning Ordinance to allow for charter schools as a permitted use
within the "I" zone.
ACTION REOUIRED:
Review with Mr. Kordell and Dr. Bennett their request, and if Council desires to
implement it, direct staff to prepare the appropriate amending language for the Zoning
{ ) Ordinance and order a public hearing for the Planning Commission in April.
6/23/15 Board of Zoning Appeals Packet - Page 38
Page No. 10
March 21, 2000
Ayes: 5
Nays: 0
FORT SNELLING ACADEMY Council acknowledged a letter from the Fort Snelling Academy
requesting consideration of a Zoning Ordinance amendment to allow
charter schools as a permitted use in the "I" District. Council also
acknowledged an associated memo from Public Works Director
Danielson. Academy President Peter Kordell and Headmaster Mike
Bennett were present for the discussion.
Mr. Kordell informed Council that the Fort Snelling Academy
recently received its charter to operate a 400 student high school
with a college preparatory curriculum and is seeking a location in
Mendota Heights. Originally, the school planned to locate at Fort
Snelling and renovate the barracks but that got bogged down. Fort
Snelling could become a second campus if the situation warrants it.
The academy is interested in locating in the former Metro H building
in the city's industrial park.
Mayor Mertensotto pointed out that Mendota Heights was not the
first choice and also stated that he is concerned that the building is
available. The building was being used by a consortium of school
districts for office use and community education programs and
extended day programs, and he was concerned about what School
District 197 will do now for community education facilities. He was
also concerned about parking and about recreation facilities for the
students.
Mr. Kordell responded that the consortium that owns the building
was disbanded and they are being forced to sell and the tenants must
leave. The school district is moving its uses back to its schools. He
stated that there are 115 parking spaces plus garage spaces.
Regarding recreation facilities, he informed Council that the students
are taken out into the community to use community fields that are
not being used during the duty. Charter schools generally do not
have the availability of fields like standard schools. He stated that
the school is primarily academic and its athletic program is mostly
fitness. There will be six buses to transport 1/3 to'/a of the student
body to community facilities. He stated that the academy is looking
for a site in Mendota Heights because the parents asked him to look
for a site in the area.
Mayor Mertensotto pointed out that whenever a use is jammed into
( an area it was not designed for in the first instance, there are
- problems, such as insufficient parking.
6/23/15 Board of Zoning Appeals Packet - Page 39
Page No. 11
March 21, 2000
i 1 Councilmember Dwyer stated that the fundamental problem is that
the area is zoned Industrial, which would only allow a trade school.
If Council were to change the zoning ordinance for the use, the
industrial district would be opened up to future charter schools. He
stated that he was not initially comfortable about giving approval to
the proposal and then discovered that the academy is also asking the
city to issue bonds.
Mr. Kordell responded that the city would be the issuing agency but
would have no financial obligation. The building company would be
directly responsible for the obligation. He stated that the City of
Minneapolis already had given approval to the academy for $7
million, but the school is not being located there. Briggs and
Morgan is the underwriting Council and Kenard issues the bonds.
He stated that there is a single investor that will purchase all of the
bonds. In addition, the academy gets base aid from the state in lieu
of a levy. The school cannot own the property, so the building
company would own it and lease aid would finance it.
Mayor Mertensotto stated that he shares Councilmember Dwyer's
concerns. The building is in the industrial area and Council spent a
great deal of time on planning for the area. All of the buildings are
finished on all four sides and there is substantial landscaping. He
did not think it is a good site for a school of 400 young adults.
Controlling parking could also be significant.
Mr. Kordell responded that the school has the ability to control who
can drive and who cannot. Parking spots can also be leased to the
students. He stated that he does not want parking to spill out onto
the streets.
Mayor Mertensotto asked how problems could be corrected after the
school is located there. He stated that he would hate to think
Council would unload a problem on the industrial park.
Mr. Kordell stated that one of the reasons he is before Council is to
get input, not to force the school on the city.
Mayor Mertensotto stated that the initial use of the building by the
consortium of schools was office use and then it became community
education and then day care. He felt that the school would be the
wrong fit for the location.
6/23/15 Board of Zoning Appeals Packet - Page 40
Page No. 12
March 21, 2000
Mr. Kordell responded that schools are allowed in the B-lA District
.� and the use would fit in the GNB building, which is for sale. He
informed Council that he met with the owner this morning about the
possibility of the building being Plan B and he is willing to sell the
building to the school. There is sufficient parking and it is a good
site and location. The building is about 50% larger than the Metro II
building, and the highway department has a seven year lease for the
second floor. He stated that the bonds are 30 year bonds, so this
would be a permanent site for the academy. He informed Council
that Normandale Community College is the academy's sponsor and
Normandale would bring evening classes to the community and the
academy would do post secondary education with Normandale.
Mayor Mertensotto informed Mr. Kordell that Roseville Properties
just spent a great deal of money putting up its structures and is in the
process of getting people into them. He stated that he would like to
get input from them on what they would think of 400 high school
students in the GNB building. He pointed out that the city has had
problems at Sibley High School because of the students' having cars.
Mr. Kordell responded that there would be 200 to 250 cars.
Councilmember Dwyer asked if he understands correctly that the
school district would open its athletic facilities to the academy
during off hours.
Mr. Kordell responded that they would not be using school district
facilities but rather that he would ask that the students use the city's
facilities during the mid-day program. He stated that most of the
activities will go on within the school — dance, theater, aerobics,
weight lifting, etc., but some of the students would be loaded on to
small buses and taken to city parks during the noon time. The
academy could also use the "Y" for swimming and the Fort Snelling
fields.
Councilmember Krebsbach stated that Council puts much time and
thought into decisions that relate to the schools that have been in the
community since 1965. She pointed out that the academy does not
have a track record, and the two hour break during the day is really
free time for high school students. She pointed out that high school
students need a lot of supervision and during the two hour break they
would have the ability to roam around the community.
6/23/15 Board of Zoning Appeals Packet - Page 41
Page No. 13
March 21, 2000
Mr. Kordell responded that it is not free time but rather is a
structured period. They would only be taking perhaps 100 students
into the community.
Councilmember Krebsbach stated that at this point the plan works in
concept but that the academy has no track record to show Council
how it really works. The other issue is that Normandale would be
offering college courses. She asked how Inver Hills Community
College feels about that.
Mr. Kordell responded that Normandale has instances where there
are joint venture programs where an individual goes to a technical
school for part of a degree and then to another community college to
get the remainder of the degree.
Councilmember Krebsbach pointed out that Inver Hills and
Normandale are in competition with each other.
Mr. Kordell stated that Normandale is an outstanding sponsor. He
stated that a charter school must have a sponsor that is an
educational facility.
' Councilmember Krebsbach responded that Normandale is an
educational facility but they do not produce teachers. She asked
what its role is in peer review oversight since Normandale is not
involved in K-12 education and does not produce teachers.
Mr. Kordell responded that Normandale provides financial oversight
and accountability of student progress. In order to receive a charter,
a charter school must prove to the Department of Education that it
has a sound and viable program. The Fort Snelling Academy has
been approved by people who know education.
Mr. Bennett stated that part what charter schools are supposed to do
and the reason many of them are larger than in the past is to try
innovative programs and ideas.
Mayor Mertensotto stated that Council must deal with land uses. If
St. Thomas Academy had wanted to located in the GNB building or
Metro II, Council would not say they were proper sites. Council
never envisioned there would be a school in those buildings. He
pointed out that the Academy is talking about using one of those
structures as a permanent facility.
6/23/15 Board of Zoning Appeals Packet - Page 42
Page No. 14
March 21, 2000
Mr. Bennett responded that his group has spent a great deal of
money on Metro II because it was a school and he thought it was
zoned for school.
Administrator Batchelder stated that community education was
operating out of the building through an annually renewable special
use permit approved by Council in 1995. The school district had
12,000 of the 40,000 square feet in the building, and the special use
permit was classified as community education.
Councilmember Krebsbach was concerned about the plan to use city
parks. She stated that her background is in education, that she has
worked in open schools and knows that they can be great places in
principle but not always in practice. That is why a track record is so
important.
Mr. Kordell responded that part of it is design. There will be one
instructor for every 20 students, and only 100 of the 400 students
will be using city facilities and other facilities at one time.
Councilmember Huber stated that he is comparing the academy to St
Thomas and Visitation and looking at their facilities, which are quite
( large. He would have a hard time picturing 400 students at Metro 11
when St. Thomas probably houses 500 students.
Mr. Kordell responded that St. Thomas charges $12,000 per year, so
they can provide a Cadillac. Charter schools have a different vision.
It is an alternative to traditional schools and parents are given a
choice. Many families that are looking for alternative choices.
About one-third of the academy's enrollment of students that are
coming from private schools to the public school system. They are
looking for alternatives in the public school system that are similar
to private schools.
Councilmember Huber stated that this a land use issue rather than a
financing issue. He stated that the academy has indicated that it
desires lease aid for the building and asked what funds the school's
day to day operations.
Mr. Kordell responded that the school will receive general revenue
aid per pupil. The school has all the obligations of the public school
system, and there are no restrictions to admissions. There is a longer
school day and tougher curriculum than in the public schools.
6/23/15 Board of Zoning Appeals Packet - Page 43
Page No. 15
March 21, 2000
Councilmember Huber asked what happens to the bond funding if
the school fails.
Mr. Kordell responded that the responsibility is the school's and the
building company's. The property would either be sold or the
building company would own it.
Councilmember Dwyer stated that given that there is no track record,
he believes that if Council were to take a survey in the city, people
would be decidedly against the proposal.
Mayor Mertensotto informed Mr. Kordell that it took Council four
years to redevelop the southeast corner of the T.H. 110/Lexington
Avenue intersection because of neighborhood concerns over the
intersection. He fitrther stated that the question is whether the Gould
site is an appropriate place for 400 students.
Mr. Kordell stated that the school would like to come into the
community, if not at Metro II, then at GNB, because that is
appropriately zoned. He asked where the school could be located if
not at one of those sites.
{ Mayor Mertensotto responded that the Curley neighborhood had a
big concern when Mn/DOT leased a portion of the GNB building
because of the traffic it might generate. Since that time, the office
park was developed. He stated that he would really be concerned
about putting in a 400 student school after someone makes such a
substantial investment. The school would also be putting
considerable stress on the city's recreational facilities.
Mr. Kordell informed Council that if he finds site on which to build
the school, he could defer starting the school for one year.
Responding to a question, he stated that the school is not restricted to
a geographic area in its charter and could locate anywhere it wants.
The academy sent a mailing to 5,000 families around the Fort
Snelling site, including Mendota Heights, Highland Park, St. Paul,
Bloomington, etc. He stated that the school could locate in
Burnsville or Inver Grove Heights if it wanted to but that he wants to
be in the area where the 115 families with enrolled students wants it
to be.
Mr. Kordell stated that if the two sites are not viable, the third option
would be to purchase and build on the land at the end of the Mendota
�: Bridge, which is zoned B 1-A and is not developed. He asked if he
6/23/15 Board of Zoning Appeals Packet - Page 44
Page No. 16
March 21, 2000
would receive any different reasons as to land use if they were to
build a first class facility on the site.
Councilmember Dwyer stated that his immediate reaction is that the
site would be a spectacular place for commercial or townhouse use.
The air noise is awful but the view is second to none, and if
appropriate sound attenuation were installed, the site could be ideal
for the school.
Mayor Mertensotto stated that the Metropolitan Council would likely
object because of the proximity to the runway. Safety of the students
will be a big factor. He informed Mr. Kordell that there is no public
subsidy (TIF) available for the land purchase or development. '
Mr. Kordell responded that the school does not need public subsidy
and will be using private funding. He further stated that the academy
is not asking the city to participate in the acquisition of the land,
making it a buildable lot, or for assistance with noise attenuation.
All that will be requested is conduit financing. He stated that if it is
amenable to the city, the academy would like to proceed with the
third option.
Councilmember Dwyer stated that Cannot give a consensus this
evening but that he would keep an open mind to that presentation.
Councilmember Huber stated that he would consider the site but
would not support the other sites.
Councilmember Krebsbach stated that being a former K-12 educator,
she cannot see the GNB building as being appropriate. The learning
environment would be a great deal different on the bluff site, but she
would have to look at it fresh.
Mayor Mertensotto stated that it is apparent that Council would be
amenable to looking at a proposal for the site as long as there is no
public subsidy.
CASE NO. 99-30, Council acknowledged a request from Mr. Michael Wandschneider
WANDSCHNEIDER for a six month extension of the conditional use permit granted to
him for construction of a detached garage at 1289 Lakeview Avenue
and a variance to allow installation of a 12 foot garage door instead
of a 9 foot door as was originally proposed. The conditional use
permit expired on March 7. Council also acknowledged an
associated memo from Assistant Hollister. Mr. Wandschneider was
present for the discussion.
6/23/15 Board of Zoning Appeals Packet - Page 45
Page No. 10
May 1, 2001
Mayor Mertensotto stated that Council must deny the application
i tonight so that there is no problem with the 120 day rule, but if the
Grothes can come up with another plan they can submit it to staff
and staff can determine if it can come directly to Council or if it
must go to the Planning Commission. Council can give the
applicants 60 days to come back with an alternative plan without an
additional planning application fee.
Councilmember Dwyer stated that the Grothes may have to decide
between the pool and the play structure. No Council action would be
required to install the five foot fence around the swimming pool if
the setback requirement is met.
Councilmember Schneeman moved adoption of Resolution No. 01-
20, "A RESOLUTION DENYING A TWO -FOOT FENCE
HEIGHT VARIANCE APPLICATION FOR 870 MENDAKOTA
COURT," with the understanding that the applicant will be allowed
to come back within 60 days to have the city consider an alternative
solution with no additional application fee.
Councilmember Vitelli seconded the motion.
Ayes: S
Nays: 0
CHARTER SCHOOL Mr. Scott Qualle, from Walsh Partners, was present to request
preliminary feedback from Council with respect to the possibility of
amending the zoning ordinance to allow a charter school in the
Metro II building in the industrial park. Council acknowledged a
memo from Assistant Hollister along with information submitted by
Mr. Qualle.
Mr. Qualle stated that he was approached by School Start, which
represents charter schools that are looking for space. The Twin
Cities International Elementary School and the Minnesota
International Middle school are chartered by the state and are ready
to go but they do not have any space. The Metro II building has
classrooms on the lower level and office space on the second floor.
It was his understanding that a conditional use permit was granted in
the past for kindergarten and pre -kindergarten classes in the past.
The property is zoned industrial and he would like to find out if the
zoning ordinance could be amended to allow the charter schools to
use the space. He stated that he is asking for an indication that he
should appear before the Planning Commission to pursue the
conditional use process for schools in the I District.
6/23/15 Board of Zoning Appeals Packet - Page 46
Page No. 11
May 1, 2001
Mayor Mertensotto responded that Council was approached about a
year ago by another charter school looking at the site. The question
Council had to address was whether this was a place where Council
wanted a school. It was the consensus that if the city wanted a
school in the I District, the ordinance would have been created that
way in the first instance. The prior party came back asking for
approval to use the GNB building. Again, Council told them that the
GNB building was not the place for a school. His opinion is that if
the city wanted schools in those districts in the first instance, the
properties would have been zoned for school use. He pointed out
that there is considerable of traffic passing through the industrial
park, which is why few schools are found in industrial areas. He felt
it would be inappropriate to put any type of school in an industrial
area because of the type of traffic through the area.
Councilmembers Schneeman and Vitelli agreed.
Mr. Qualle responded that the building has already been used as a
school by District 197.
Councilmember Krebsbach stated that Co-uncil was very reluctant to
allow the use, which was special programming for older students and
adults through the community education program. It was not used as
an elementary school.
Mayor Mertensotto stated that the school district changed the nature
of the use without Council's permission.
Mr. Qualle stated that there is not enough parking available for office
use and the property has been off the tax rolls for a long time. There
would be no co -mingling of students and office workers. There is
more than ample parking space for the use. It is already built out for
classrooms. He stated that he has been looking for space for this
school for two and one half months and the best space he has found
is old warehouses in Minneapolis.
Mayor Mertensotto stated that the building was built by a telephone
company as a technical support building, which is the reason for the
shortage of parking. The building was sold to a consortium of
school districts who got together and bought the building because it
would make an excellent single purpose data processing setting for
them. They had to sell it because of financing requirements and the
school district subsequently leased it.
6/23/15 Board of Zoning Appeals Packet - Page 47
Page No. 12
May 1, 2001
Councilmember Dwyer pointed out that the charter school is talking
(" about 350 students in the building. He stated that while he
appreciates that they are having difficulty finding a site, he cannot in
good conscience approve of 350 children at this site.
Mr. John McCall, from School Start, stated that he understands
Council's interest in maintaining the current zoning classification.
Mayor Mertensotto stated that Council feels very strongly that it
should maintain the industrial character of the industrial park. All
members of Council agreed.
MENDOTA BIKE Council acknowledged a memo from Assistant Hollister relative to a
request from AAA Garage Door Company for a determination on .
whether its use of the Mendota Bike building would be substantially
similar to other permitted B-2 uses.
Mr. Todd Mullinax stated that he owns a business in Eagan and
would like to purchase the Mendota Bike building and relocate his
business. He met with staff and was advised that his use is not
specifically designated as a permitted use in the B-2 District but it
does fall into a number of similar classifications. He informed
Council that his company sells garage doors and electric door
openers to home owners. The homeowners would come to the show
room and pick out a door, and AAA would deliver and install the
door. He has a catalog of doors for people to view, and about 50%
of the doors he sells are special order. The new doors are taken out
to the homes and the doors they replace are brought back to the shop
and placed in a dumpster. The company's trucks are stored at the
service people's homes and are not kept on site. There will be some
standard stock inventory in the building.
Councilmember Dwyer asked how often semis would pull in with
garage doors.
Mr. Mullinax responded that business is heavier in the fall and
sometimes they will have a delivery once a week then. From
January through May, there will probably be a truck a month
delivering doors to the site. They are probably more trucks coming
to the bike shop now than his business will generate.
Councilmember Krebsbach stated that the owner of the bike shop
came in recently and proposed to sell it to someone else who wanted
to expand the building. Council told him it could not be expanded.
l;
6/23/15 Board of Zoning Appeals Packet - Page 48
Affidavit of Publication
State of Minnesota SS
County of Dakota
E. KITTY SUNDBERG , being duly sworn, on oath, says that
he/she is the publisher or authorized agent and employee of the publisher of the newspaper known
as SOUTH-WEST REVIEW and has full knowledge of the facts which are
stated below:
(A) The newspaper has complied with all of the requirements constituting qualification as a qualified
newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws, as amended.
(B) The printed NOTICE OF HEARING
which is attached was cut from the columns of said newspaper, and was printed and published once each
week, for 1 successive weeks; it was first published on SUNDAY , the "f H day of
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type used in the composition and publication of the notice:
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t is 8 THday of JUNE 2015
I'
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TITLE --LEGAL OO•D. O-
Notary Public
*Alphabet should be in the same size and kind of type as the notice.
ONYA R. WHITEHEAD RATE INFORMATION
�lotary Publio-MMinnesota
y Commission F�irea Jen 91, 2U20
(1) F!oRwest asslfeed rate Daid by
commercial users for comparable space............................................................$25.00 per col. inch
(2) Maximum rate allowed by law for the above matter...........................................$25.00 per col. inch
(3) Rate actually charged for the above matter.......................................................$ per col. inch
1/15
CITY OF MENDOTA HEIGHTS
NOTICE OF HEARING
A PUBLIC HEARING ON
AN APPEAL'FROM A
! ZONING'DETERMINATION
12
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6/23/15 Board of Zoning Appeals Packet - Page 49
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