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Zoning rules: An inside look at Floor Area Ratios, setbacks, slopes and site plans

MinnPost photo by Stephanie Laumer
Plans to redevelop property at 3748 W. Calhoun Parkway violate zoning rules in at least three ways.

As an adjacent property owner, I was invited last week to a meeting of the Minneapolis Zoning Board of Adjustment to make my views known (or not) on a riveting question:

Should Izzy’s Ice Cream, which is constructing a combo factory-store-parlor across from Gold Medal Park, be granted a zoning variance that would allow it to post a sign on its building that says, “Izzy’s Ice Cream”?

Under current zoning, no signs are allowed.

Many of my neighbors had objected to the presence of a factory in the neighborhood — in vain. Construction is now nearly complete. (If you could see my hips, you’d know where I come down on any issue involving ice cream.)

I figured that some of these folks would turn up to kvetch about the sign, too. If I were lucky — I’m speaking purely as a gutter journalist now — one of the anti-sign folks would punch a pro-sign person (or vice-versa) and I’d have a juicy story.   

So late in the afternoon, I hied my sweaty self over to Room 300 at City Hall, was redirected to the Grain Exchange, then to the Public Service Center and then back to City Hall, this time to Room 317, where proceedings were already under way — but not about Izzy’s. Under discussion was a variance for a single-family house at 3748 W. Calhoun Parkway.

The purpose of zoning is a simple one: to separate incompatible uses, so a quiet residential neighborhood doesn’t wind up playing host to, say, a smelly, noisy chicken-processing plant.

Complicated business

Since zoning came into being in the late 1800s, it has become much more complicated than a mere restriction of uses. Local ordinances may now dictate setbacks, distance between buildings, height, density, bulk, signage, landscaping and so on in mind-numbing detail.

Zoning has been used not just to preserve aesthetics or to keep polluting businesses confined to an industrial zone but also to exclude supposedly “undesirable” neighbors. One-acre zoning in suburbs, for example, wasn’t created so much to fulfill some innate need for giant, labor-intensive lawns but to prevent the construction of houses on small lots that might attract the unmonied classes.

In some ways, zoning constitutes a “taking,” since it can limit a property’s economic value. But in Euclid v. Amber Realty, the U.S. Supreme Court in 1926 upheld the concept, saying that zoning was a reasonable exercise of a city’s police powers.

Zoning codes, however, are not absolute; they allow for exceptions or variances if the restrictions would cause a hardship or make the property unusable. The classic example is a lot that is an oddly shaped property. In any case, to win a variance, the property owner has to take his case to an appeals board that decides the matter.

Calhoun Parkway case study

So here’s the backstory on the house on West Calhoun Parkway.

Once upon a time, there was an owner who held title to two lots, 3748 and 3746. On each parcel sits a decrepit and vacant 100-year-old “cabin,” both of which are considered eyesores by the neighborhood. Enter a would-be homeowner — call him Mr. X. He buys both properties, resells 3746 and draws up plans to tear down the “cabin” and build a two-story house with an attached garage on the remaining lot.

A single-family house certainly sounds compatible with what’s around it, but as luck would have it, the plan violates the zoning code in three ways. Steel yourself for some pettifogging details.

First problem: The zoning code has a maximum Floor Area Ratio or FAR (that’s the square footage of the building divided by the square footage of the property) of 0.5 or a maximum of 2,500 square feet, whichever is larger. The lot in question is small — is only 4,214 square feet; so it’s automatically entitled to 2,500 square feet, not including 250 square feet for an attached garage. But Mr. X wants to put up a 2,662-square-foot house and a two-car attached garage for a total of 2.924 square feet and a FAR of 0.7. If the property were a little bigger and configured a little differently, he could build a detached garage, which would not be included in the FAR ratio. Then he’d be in compliance or close compliance with the ordinance. But the property is too small.

Second problem: The zoning requires a minimum setback of 25 feet, and Mr. X is asking for 23 feet for his house and as little as 3 feet to accommodate a patio and retaining wall. (The patio is shielded from the street by some park department land; so it’s not right on the sidewalk.) This doesn’t sound like such a big deal, but the zoning also requires that setbacks for the new house conform to the setbacks of the houses on either side. In one direction lies the other decrepit “cabin” which will probably be torn down, but on the other is a house whose setback is about 34 feet. The new house, mostly its patio, would jut out, and that, under the ordinance, would be a no-no.

And a third problem: The property lies in the Shoreland Overlay District, which requires that all development take place 40 feet from the top of a steep slope, and, you guessed it: this property sits on a small hill. How steep is steep? If it drops 18 degrees within 50 feet. I gather the requirement is designed for landslides or some such. Anyway, the proposed house would only lie 25 feet from the proposed drop.

All these problems didn’t seem like such a big deal to me. After all, Mr. X wasn’t proposing to build Neverland, or even South Fork, but a rather unexceptional three-bedroom house.

Nonetheless, its potential zoning violations called forth from the Department of Community Planning and Economic Development (CPED) a 15-page single-spaced study plus maps and blueprints, elevations, photos of trees and houses, from the ground and from the air, not to mention tables and site plans.

 ‘Alice’s Restaurant’ nostalgia

 It all  reminded me of that line from “Alice’s Restaurant” about Officer Obie collecting “plaster tire tracks, foot prints, dog smelling prints, and twenty seven eight-by-ten color glossy photographs with circles and arrows and a paragraph on the back” to prove that Arlo Guthrie and his friends had littered. The amount of staff time that must have gone into the preparation of this report was pretty daunting.

The local community group, the Linden Hills Neighborhood Association, approved the homeowner’s plan — or decided not to object to it. But the CPED staff recommended that the board deny the variance for an increased FAR. They also endorsed a setback of 26 feet for the house and only 20 feet for the patio. Finally, they allowed a variance for the shore overlay business, but the homeowners would be subject to a half-dozen conditions, for example, providing a landscaping plan and a tree protection plan “authored by a licensed arborist.”

The homeowner’s to-do list won’t end there; Mr. X still has to seek the approval of the Parks Department for a driveway and — well, the list goes on and on.

One neighbor showed up to say he wasn’t against a new house on the block; it was simply too big. And, it would set a precedent for the second lot, when that was developed. “It would be like having a big wall on the street,” he said. Another homeowner also endorsed the house — “the property is now a disaster,” he said, and he OK’d okayed plans for the garage because “parking in our neighborhood is hell.” But he was worried that the variance for the setback might obstruct his view of Lake Calhoun.

Appearing for the homeowner was Curt Fretham of Lake West Development. He argued that “what we’ve proposed is reasonable and substantially smaller than other homes on the street.” The purpose of the FAR standards should be to control for overall consistency and size; whether the ratio was 0.5 or 0.7 shouldn’t be a deciding factor. The FAR decision should be based on context, he argued. 

He was, perhaps without knowing it, arguing for an innovation called “form-based zoning,” which planners in some cities are trying. To oversimplify, it’s a code that considers a new building in light of the general form and scale of the construction that’s already there. It’s an attempt to get away from the micromanaging and trivia involved in prevailing zoning codes.

Board decision: No go

But the board wasn’t interested. They adopted CPED’s findings, and that was that. 

After the hearing, I talked to Fretham, who was visibly frustrated.

“What are you going to do?” I asked.

His options aren’t very palatable. He could scale the house back to two bedrooms from three and reduce the garage to hold only one car.

“It’s ironic,” he said. In Minnetonka, where he’s also planning to build some houses, “they want us to go bigger.”

Everybody was leaving. “Wait a second,” I said to the clerk. “What happened with Izzy’s?”

That matter was apparently decided while I was bouncing from one city building to another. And, the answer was “yes.”  Izzy’s got its sign.

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Comments (5)

  1. Submitted by Peter Roethke on 06/24/2013 - 09:58 am.

    But isn’t zoning rocket science?

    The insidious suggestion of this article is that arbitrary spatial ratios and preposterously precise design restrictions should not be allowed to trump common sense. There goes the neighborhood . . .

  2. Submitted by Ray Schoch on 06/24/2013 - 10:36 am.

    Welcome to my former world, Marlys…

    And be advised that it can go the other way, as well. One of my planning commission meetings was devoted to city CPED staff trying — ultimately, successfully — to persuade the majority of my fellow planning commissioners that the *existing* zoning for an empty parcel should be ignored, despite a city plan that specifically argued against such a course, because wealthy neighbors, who’d had a nice view of the river across several acres of empty land, objected to the notion that single-family housing for people of “moderate” income (i.e., the parcel was designated for “medium” density of up to 6 dwelling units per acre) might be built on that undeveloped land and thus obstruct their view, subject them to the noise of children playing, and otherwise uncomfortably remind them that not everyone shared their lifestyle.

    What I did not understand until I served as a planning commissioner, and what most citizens do not understand right now, is that zoning — archaic and perverse in many cases — is crucial to development patterns. Marlys is exactly correct that zoning can be, and often is, used specifically to prevent not just undesirable uses like an animal rendering plant, but to prevent what some consider to be undesirable people (i.e., those of lesser income, perceived social class, racial or ethnic minorities, etc.) from moving into a neighborhood.

    Planners spend an inordinate amount of their time trying to puzzle out the details of zoning plans that have become Byzantine in their complexity, largely for that “weeding out” purpose. My own reading of Jane Jacobs, the Grand Dame of urban planning, convinced me that what was most important in vital and vibrant cities was *variety.* She was less opposed to the notion of “incompatible use” than she was to “incompatible scale,” and the recent push in planning circles for “complete streets” and “walkable neighborhoods” builds on that notion of variety.

    My own Minneapolis neighborhood, built out in the 1950s, was/is zoned on the contrary notion of “incompatible use,” so there are 1,500 lots, all of them zoned R-1 residential, and providing absolutely no opportunity for small businesses to provide services and/or products to neighborhood residents. There are no stores, gas stations, restaurants, coffee shops, etc. The only exception is a commercial print shop on one corner of the neighborhood. We thus have neither “complete streets” nor a “walkable neighborhood” in that commercial context. We *do* have, however, sidewalks and green space that often don’t exist in similar-sized suburban neighborhoods.

  3. Submitted by Jim Mogen on 06/24/2013 - 10:42 am.

    Uninformed and reactionary.

    Without even a shred of objectivity, this article espouses a reactionary response to zoning regulations. Ms. Harris suggests that the rules should be flexible, and disparages ratios and setbacks without the slightest research into why they were adopted in the first place.

    Yes, there is little difference between a 23 foot setback or a 25 foot one. But the City needed to adopt a number that provided the setback to preserve the characteristics of the neighborhood, and it adopted 25 ft. Some would say it should be 30 ft, and the neighbor would probably prefer 34 ft.

    But, what should the city do when the neighbors are complaining that a 2 ft variance is too much? If flexibility is the rule, then the city opens itself up to charges of favoritism or poor planning when it applies different standards.

    Euclidean zoning is not perfect, and other methods have there strengths, but the implicit message that Euclidean zoning is necessarily unreasonable ignores 80 years of precedent. Ms. Harris, in her attempt to get a “juicy” story, fails to provide any objectivity on this issue.

  4. Submitted by Steven Prince on 06/24/2013 - 07:10 pm.

    Zoning is a social contract

    The purpose of zoning districts is to assure individuals what the rules will be on neighboring properties so they can build (invest) with confidence. In any zoning dispute the issue is not whether enforcing the code will result in a taking: the issue is whose property rights will be “taken.”

    If a block is zoned for single family homes or duplexes and the city allows an owner to build a 6 story building that shades its neighbors and changes the scale of development, then the owner of the six-story building has been allowed to “take” value from its neighbors, whose homes are now worth less because they are next to a tall building. The apartment building is also worth more in a block of single family homes than what it would be worth in a block of apartment buildings: allowing a single owner to “break the rule” awards monopolistic rent to that owner.

    Other situations can be more subtle. Allowing a new house to be built that covers more of the lot than its neighbors (say in a block of homes with common setbacks and similar front proches) allows that builder to extract more value from the lot, but may also devalue all the other homes on the block, since sight-lines from all the other neighbors’ porches have been disrupted by the non-conforming new construction.

    Suggesting that land use restrictions limit profits and are bad (as this article does) misses the whole social contract of zoning and perhaps reflects a laissez- faire view of the world that assumes letting everyone maximize their individual profits will result in the best outcomes for society.

    The system is far from perfect, in my experience Minneapolis has long suffered from a lack of vision or creativity in application of its zoning laws. That said, the existence of rules, and the need to seek variances when you break those rules, is what allows public discussion about how to balance individual desires to maximize profits with communal concerns and small individual impacts on multiple properties.

    It is interesting that the neighborhood declined to support this proposal. My experience suggests that is closer to a denial than an endorsement of the project. Staff and council members are less likely to support breaking the rules for a single owner if the neighborhood doesn’t think there is a good communal benefit for doing that.

  5. Submitted by Connie Sullivan on 06/26/2013 - 11:22 am.

    In an American urban environment you can’t simply do whatever you want with your property. What you do affects your neighbors, for good or ill. And that’s why we have zoning laws that restrict the Wild West tendencies of some (mostly monied) property buyers and developers whose sense of monied entitlement gets ahead of them.

    Incidentally, while the concept of zoning rules/laws probably pre-dates it, Minneapolis did not begin establishing “restricted districts” for residential purposes versus industrial purposes until February 1913, and did not have a full-fledged and controversial Zoning Code until 1924. (We had a building code, though, as early as the 1880s.) People with money and connections and fancy houses who were “in the know” in late 1912 about what the City Council was going to do quickly had their neighborhoods declared “restricted residential” areas–schools and parks, etc. were allowed, but no businesses. Other people’s neighborhoods continued to be speckled with businesses and even heavy industrial uses into the 1920s.

    Further, the Zoning Board of Adjustment is not the last venue for appeals of its decisions: you can appeal a decision to the Planning Commission and then, if necessary, to the Council’s Committee on Zoning and Planning, and City Council. Of course you’d better have the neighborhood’s support if you do that.

    This article belittles the very concept of city planning through zoning and the rule of law. Sorry to see that.

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