Ignoring the obviousAug 3, 2012
Context - Eliminating licensed rental property described as dilapidated, dumps, ghetto housing. Multiple Choice:
- Correct deficiencies in Housing Licensing Code
- Suspend special use permit pending criteria compliance
- Legal new development (redevelopment)
- Amend local statute (city code)
- Illegal new development (redevelopment) « City's Choice
Condition of approval eliminates need
Context - 110 E. Cherry and 701 S. Main Street, Case 03-2012, ZBA authorizes variance with condition that applicant combine lots. Similar to ZBA Case 15-2010, approval condition eliminates need for variance. Additionally, consideration of this use variance is illegal pursuant to City Code §154.164(A).
Sixth scheduled hearing 1003 Douglas
Context - The planning commission is empowered to review site plans (§154.169) and authorize special use permits (§154.171). The zoning board of appeals is authorized to hear and decide enforcement decision appeals (§154.162).
Planning Commission action: postpone site plan and special use permit decisions 'until ZBA action is taken'.
without decision Zoning Board of Appeals is without authority - Perpetual Postponement
PC New Business : Ordinance, Master Plan, and the Other Plan
Context - City Code Chapter 154:Zoning Ordinances documents procedures and standards. §154.169 SITE PLAN REVIEW (Ord. 613, passed 3-6-84; Am. Ord. 647, passed 9-15-86; Am. Ord. 939, passed 12-10-07) §154.054 M-2 MULTIPLE FAMILY RESIDENTIAL DISTRICTS (Ord. 613, passed 3-6-84; Am. Ord. 637, passed 2-19-86; Am. Ord. 792, passed 11-11-96-0; Am. Ord. 818, passed 11-9-98; Am. Ord. 845, passed 6-26-00; Am. Ord. 871, passed 4-8-02; Am. Ord. 916, passed 11-28-05; Am. Ord. 922, passed 10-23-06; Am. Ord. 937, passed 12-10-07; Am. Ord. 938, passed 12-10-07; Am. Ord. 939, passed 12-10-07)
Planning Commission Thursday, March 1, 2012 Agenda IX.B. Consider documentation of Review Procedures and Standards - Redevelopment of Housing in the M-2 Zoning District.
Planning Commission 'endorses' procedures and standards contradicting procedures and standards prescribed in state and local statutes. (Replacement for fictitious 'timeout' authority?)
Fictitious 'timeout' Authority
Context - Planning Commission 03.03.11 work session - current review procedures
Commission Secretary - Jeffrey Gray, Community Services - Richard Morrision : okay to call a 'time out'. (The 'time out' is not described in the City Code. Planning commission minutes suggest the 'time out' is discretionary rather than ministerial authority.)
Public hearing Special Use Permit SUP-10-11 January 6, 2011
Context - Application for permit to operate site as a 24 hour restaurant/night club with no more than 50% gross revenue from alcohol sales (§ 154.003(2) Class I Restaurant).
Planning Commission - authorizes special use permit mandating compliance with inapplicable ordinance requirements involving circumstances beyond applicant's control (§ 154.067(C)(9)).
Public hearing variance request November 23, 2010
Context - Applicant requests variance from ordinance provisions that are not applicable to the proposed development (Case ZBA-15-2010). ZBA hearing is not an enforcement decision appeal.
Zoning Board of Appeals - authorizes variance with stipulation variance effective only while site is not subject to those ordinance requirements.
Special Use Permit, duplex in OS-1 District SUP-10-04May 6, 2010
Context - Office Service District principle uses permitted §154.081(B)(1) All uses as permitted and regulated in the M-1 and adjacent R Residential District; Residential Districts principle uses permitted subject to special use permits §154.051(C)(9); Two-family dwellings.
Planning Commission - Chairman Orlik called the applicant forward and asked why they were applying for a Special Use Permit
Site Plan Review April 9, 2009
Context - Plan includes specifications not found among standards and requirements contained in the ordinance. Existing development conforms to ordinance criteria.
Commission Secretary - Jeffrey Gray: applicant has submitted documentation sufficient to show that he is able to meet the ordinance criteria.
Complaint Response October 13, 2005
Context - Site plan represents building length at more than 360 feet
Building Official - Brian Kench: "Although the building is 130 feet in Length … . Therefore, it is my opinion that this project does not violate the provisions of the Zoning Ordinance." See Denied Due Process pg 19-20, 5, 7.
Statutory Construction July 5, 2005
City Code § 154.007(B)(6) Nonconforming use destroyed. A building which has been damaged by fire or other cause to the extent of more than 50% of its replacement value must be repaired or rebuilt in conformity with the provisions of this chapter.
Context - A cardinal rule of construction is that a statute should be read as a harmonious whole, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes. When the meaning of a statute is plain on its face, there is no need for statutory construction.
City Code § 10.05 DEFINITIONS.
(A) General rule. Words and phrases shall be taken in their plain, or ordinary and usual sense.
City Code § 10.06 RULES OF INTERPRETATION.
(D) General term. A general term following specific enumeration of terms is not to be limited to the class enumerated unless expressly so limited.
City Code § 154.003 DEFINITIONS.
Terms not herein defined shall have the meaning customarily assigned to them.
City Code § 154.164 VARIANCES.
(D)(6) That the need for the variance is not created by any action of the applicant or previous owner.
(E)(1)(d) The problem is not self-created;
City Attorney - Steven W. Martineau, LYNCH, GALLAGHER, LYNCH, MARTINEAU & HACKETT, P.L.L.C.: "It is the opinion of this office that that provision does not control in this factual setting and that the phrase "or other cause" does not relate to the intentional renovation or reconstruction of a building. Instead, it is the opinion of this office that that language refers to loss by windstorm or a similar casualty, and not to the intentional demolition as a part of a reconstruction project." See Denied Due Process pg 13-15.
Variance Request July 28, 2004
Context - Existing Use and proposed Use are conforming Uses.
Applicant: The existing structure would be tore down and replaced with the new proposed structure ...
Board Secretary - Tony Kulick (acting as): As long as they are not increasing a non-conforming use, they are allowed to renovate and repair.
Board Member: could this be considered a renovation/repair if they were tearing down and rebuilding.
Board Secretary - Tony Kulick (acting as): the Planning Commission ... did not feel that this would be increasing the nonconforming use.
Site Plan Review May 6, 2004
Context - Use is among principle uses permitted in an M-2 district. (conforming use)
Commission Secretary - Tony Kulick: this is a non-conforming use, he is licensed at 212 occupants. The developer has chosen to keep that maximum number of occupants.