GVA82016) Filed in Second Juicia Distt Court ‘72072078 3:02 Pe Ramsey County, MN STATE OF MINNESOTA. DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT Case Type: Other Civil Historic Merriam Park Neighborhoods ) Court File No. Association, a neighborhood association, ) Judge Mary Anderson, Dean Nelson, and Scott ) Van Wert, ) j COMPLAINT Plaintiffs, ) ) vs. ) ) City of St, Paul, a municipal ) corporation, ) Defendant. ) ) COME NOW Plaintiffs Historic Merriam Park Neighborhoods Association, Mary Anderson, Dean Nelson and Seott Wan Wert (collectively, “Plaintiffs”) based on personal knowledge with respect to their own actions and upon information and belief with respect to the actions of all other parties, and as and for their Complaint against Defendant City of St. Paul (City” or “Defendant”), state and allege as follows: PARTIES, JURISDICTION, AND VENUE 1. Plaintiff Historic Merriam Park Neighborhoods Association (“Association”) is an ‘unincorporated association of property owners and homeowners located in the City of St. Paul, which is located in Ramsey County, Minnesota. 2. Mary Anderson is a resident of the City of St. Paul lives in the immediate vicinity of 1973 and 1977 Marshall Avenue, St. Paul. Mary Anderson owns the real property that abuts the eastern side yard of 1973 Marshall Avenue, St. Paul.e2.cv-10-2015 Fle in Second Jusicial Distt Court ‘12672018 5:02 PM Ramsey County, MN 3. Dean Nelson is a resident of the City of St. Paul who lives in the immediate vicinity of 1973 and 1977 Marshall Avenue, St. Paul, 4. Scott Van Wert is a resident of the City of St. Paul who lives in the immediate vicinity of 1973 and 1977 Marshall Avenue, St. Paul. 5. Defendant City is a municipal corporation formed under the laws of the State of ‘Minnesota and located within Ramsey County. 6. Turisdiction and venue reside with this Court as the parties are located within Ramsey County, and all events and actions relevant to the instant matter have occurred within Ramsey County. 7. This Court has jurisdiction over this action because it is brought pursuant to Minnesota Statutes section 462.361 which states that “any person aggrieved by an ordinance, rule, regulation, decision or order of a governing body or board of adjustments and appeals. ..may have such ordinance, rule, regulation, decision or order, reviewed by an appropriate remedy in the district court.” 8. Plaintiffs are aggrieved by the City’s decision and conduct because the City’s decision adversely operates on their rights of property and/or bears directly upon their respective personal interests. Specifically, but without limitation, the City’s decision and conduct, including, its failure to follow the plain language of its Code has caused or will cause Plaintiffs to suffer at least the following particularized injuries: a decline in the livability of the neighborhood as a result of the added density of units at the Property; incteased noise and increased congestion in the neighborhood; a decrease in the real estate values of neighboring properties due to now being next door to a S-story, 50-foot tall, 61 bedroom apartment building marketed to college students; a deterrence to families with children moving into the neighborhood which threatens to decrease theezcv-18.2015 Fed in Second Juda District Court ‘32872018 3:02PM Ramsey County MN livability and well-established diversity in the neighborhood; a decline in the neighborhood's historic resources; and, with respect to Plaintiff Mary Anderson in particular, an increased risk that the significant change in grade proposed for the Property will result in water runoff and damage to her abutting property, and that the size of the building and required screening (¢.g., fences and retaining walls) will result in loss of access to natural light and the use and enjoyment of her abutting property. 9. This Court also has jurisdiction over this action because itis an action challenging adecision of the St. Paul City Council pursuant to Section 61.704 of the St. Paul Legislative Code which states, in pertinent part, that decisions of the St. Paul City Council “shall be final subject only to judicial review by a court of competent jurisdiction.” 10, Pursuant to Minnesota Statutes section 462.361, subdivision 2, all administrative remedies and grievance procedures have been exhausted prior to the filing of this complaint and/or any further exhaustion would be futile and cause Plaintiffs and/or the Association’s members to suffer irreparable harm, PROCEDURAL AND HISTORICAL BACKGROUND. 11, Inor about mid-2017, Plaintifis learned that MCR Property Holdings, LLC (the “Developer”), owner of the real property commonly known as 1973 Marshall Avenue, St. Paul and 1977 Marshall Avenue, St. Paul (collectively the “Property”) intended to demolish the buildings on the Property and build a new student apartment building on the two combined lots. 12, Plaintiff Dean Nelson met with City Councilmember Russ Stark on July 27, 2017 to discuss growing redevelopment pressures and Plaintiffs’ concems about the proposed development. Mr. Nelson asked that the City undertake a land use and zoning study of area in and around the Property. Councilmember Stark indicated he would support such a resolution to theeeoreaie Fed in Second Jucil Distt Court ‘32672018 3:02 Pit Ramsay County, aN City Council, if neighbors first presented the proposed Marshall Avenue zoning study concept to the Union Park District Council (“UPDC") and obtained its board’s support for the study. 13. Onor about August 21, 2017, the UPDC Committee on Land Use and Economic Development (“CLUED”) voted unanimously to support a new west Marshall Avenue zoning study. 14, On or about September 6, 2017, the UPDC board of directors voted unanimously to ratify CLUED’s decision to approve the west Marshall Avenue zoning study. 15. Onorabout October 4, 2017, Councilmember Stark sponsored and the City Council ‘unanimously approved Resolution 17-1582: “Undertaking a zoning study of land use and land use classifications along Marshall Avenue between Mississippi River Boulevard and Snelling Avenue [later amended to “Hamline Avenue”), and establishing interim zoning regulations pursuant to Minn, Stat, § 462.355, Subd. 4 pending Council action on the zoning study within the study area between Wilder and Wheeler.” 16. At thts same meeting, Councilmember Stark also sponsored, and the first reading occurred of, Ordinance 17-54: “Approving an interim ordinance pursuant to Minn. Stat, § 462.355, Subd.4 pending the completion of the West Marshall Study Area, specifically between Wilder and Wheeler.” 17. The second reading of Ordinance 17-54 occurred at the October 11, 2017 City Council meeting. 18. On October 18, 2017, the City Council completed a third reading of Ordinance 17-54, and a public hearing was conducted. Significant comespondence and testimony were given in support of Ordinance 17-54.meen) Fed in Second Jl Distt Court 532612018 3:02 PM Ramsey County, MN 19. The fourth reading of Ordinance 17-54 was conducted by the City Council on October 25, 2017, and they voted unanimously to enact the interim ordinance. 20. Section 4 of Ordinance 17-54 states: “Effective Date: This interim ordinance shall be effective thirty (30) days after its passage [October 25, 2017], approval, and publication and supersedes the interim protections established under the Council’s bridge resolution in this matter.” 21, The Legislative Intent Statement in Ordinance 17-54 states: The Council of the City of Saint Paul finds that the area of Marshall Avenue between Mississippi River Boulevard on the West and Snelling Avenue on the East is presently experiencing increasing redevelopment interest. While redevelopment interest is welcome, redevelopment that is not consistent with the goals and requirements of the City's Comprehensive Plan would not be in the best interests of the City generally and this area of Marshall Avenue specifically. The Council further finds that the potential for incompatible or inconsistent redevelopment activity along this stretch of Marshall raises substantial questions relating to the ability of the City’s present official controls to assure compliance with the City’s Comprehensive Plans. In light of these increasing redevelopment interests, the Council requested the planning commission to undertake a zoning study of current land use and land use classifications of that area of Marshall described above which the Council described as the “West Marshall Study Area” or “WMSA.” ‘The Council further finds that the planning commission's WMSA zoning study may lead to the adoption of amendments to the City’s comprehensive municipal plan and to its official zoning controls within the WMSA and light of the pending WMSA study, and for the purpose of identifying an overall vision for this pivotal area and the immediate need to preserve the status quo with respect to land use in order to protect the ‘general health, welfare and safety of the public pending the conclusion of the said study, the Council desires to temporarily prohibit development on any parcel of land or part thereof within a62.0Vv-18-2015 File in Second Jaca Distrit Court ‘7202078 3:02 Pat Rameey County, MN. certain portion of the WMSA between Wilder and Wheeler until such time as the WMSA study ‘has been completed and the Council has taken action on the recommendations contained therein. 22. Section3 of Ordinance 17-54 states: “The following redevelopment activities shall be exempt from this interim ordinance: any proposal to provide residential dwellings, either single family or multi-family, that has been duly submitted to the City in proper form and with payment of any required fees, provided; that the forms and payments were submitted to the department of safety and inspections no later than the close of business on the date of the public hearing for this, interim ordinance as required under Minn. Stat. § 462.355, Subd.4(c)(2).” 23. On October 18, 2017, the Developer submitted to the Saint Paul Department of Safety and Inspections (“DSI”) a site plan application and package (File # 17-206-385) for a proposed 16-unit multi-family new development to be built at the Property. 24. The Developer’s initial site plan was incomplete and/or otherwise not “in proper form” at time it was submitted 25. On or about October 31, 2017, Plaintiffs objected to the Developer's initial site plan. 26. On November 7, 2017, DSI conducted a site plan review of the Developer's initial site plan, 27. At the site plan review meeting, City staff requested that the Developer submit a revised site plan to the DSI and informed the Developer that due to the Ordinance 17-54 ‘moratorium “no variances or special use permits would be allowed for the project.” 28. ‘The Developer acknowledged that any revised site plan submission must be free of any required or requested variances or conditional use permitse2cv-18.2015 Fle in Second Jul District Court ‘2072078 5:02 PN Ramsey County, MN 29. On November 9, 2017, DSI issued it Site Plan Review Report for the Developer's initial site plan. The report identified a significant number of deficiencies and zoning code noncompliance issues in the Developer's initial site plan. 30. On information and belief, the Developer did not timely submit a site plan proposal in proper form prior to the effective date of the moratorium. 31. Nonetheless, on or about November 28, 2017, the City informed Plaintiffs that City considered the Developer's initial site plan to be exempt from interim Ordinance 17-54. 32. On or about December 14, 2017, the Developer submitted a revised site plan application with a number of substantial changes, including, but not limited to, removing the accessory garage structures, adding above-ground parking accessed through the property's side yard, changing the composition of certain apartment bedroom counts, and reducing the number of potential student occupants. 33. On December 14, 2017, Tia Anderson, a staff member from the City’s zoning department, issued a letter to the Developer, stating that DSI, pursuant to Minn, Stat. § 15.99, was exercising its right to “extend the time line . .. by providing written notice of the extension to the applicant.” This notice reset the City’s required decision deadline to February 15, 2018. 34, Onorabout December 28, 2017, the Developer submitted a further revised site plan review packet to DSI (hereafter, the “Site Plan”). 35. On or about December 28, 2017, DSI issued its preliminary approval of the Site Plan, in the form of the Zoning Committee Staff Report, which recommended that the Zoning Committee and Planning Commission should approve the Site Plan. 36. The Site Plan application received a public hearing before the Zoning Committee of the Planning Commission on January 4, 2018.e2.cv-18.2015 File in Second Judicial District Court "312872078 3:02 PM ‘Rameey County, MN 37. Testimony at the public hearing established, among other things, that the Developer’s parking proposal was not compliant with City ordinances, the proposed parking structure was above ground by about two feet, and the properly calculated lot coverage for the project was beyond that permitted. 38. After public comment was closed the following exchange between DSI’s Tia Anderson and Zoning Committee members occurred: Tia Anderson said that she relies on the project architect and civil engineer to show her that lot coverage is met. She said that they have shown that the parking structure is completely underground. Further, Tia Anderson replied that City staff look at lot coverage based on above-ground structure as it relates to the lot area. The total lot area is comprised of both the parcel plus one half of the alley, and total lot coverage is ‘based on the above-ground portion of the building, including the balconies. Tia Anderson added that overall principal building height is measured from the existing established grade, but that the new grade once fill is added may cover near- or below-grade elements of the project but not the principal building. 39. The Zoning Committee voted to recommend that the Planning Commission approve the Site Plan with certain conditions. 40. On January 12, 2018, with minimal discussion, the Planning Commission formally ratified the recommendation of the Zoning Committee. 41. Plaintiffs filed an appeal of the Planning Commission’s decision to approve the Site Plan to the City Council on January 19, 2018. 42. On January 30, 2018, further amendments and revisions to the Site Plan application materials were filed by the Developer.fearevtepots Fed in Seoond Judicial Distt Court ‘32872018 3:02 PM Ramsey County, MN 43. On information and belief, no vote has been taken on these amendments and revisions by the Zoning Committee or the Planning Commission. GENERAL ALLEGATIONS ‘A. The City’s Legislative Code. 44. Defendant City operates under a zoning ordinance (the “Code”) which outlines permitted uses in various zoning districts. 45. The Code was adopted pursuant to Minnesota Statute § 462.357, Subd. 1 which states in pertinent part: “For the purpose of promoting the public health, safety, morals, and general welfare, a municipality may by ordinance regulate on the earth’s surface, in the air space above the surface, and in subsurface areas, the location, height, width, bulk, type of foundation, number of stories, size of buildings and other structures, the percentage of lot which may be occupied, the size of yards and other open spaces, the density and distribution of population, the uses of buildings and structures.” 46. Section 60.103 of the Code states that the Code was adopted by the City for, among other things, the following purposes: to regulate the location, construction, reconstruction, alteration and use of buildings, structures and land; to prevent the overerowding of land and undue congestion of population; and to fix reasonable standards to which buildings, structures and uses shall conform. 47. The Property is located in what the Code classifies as the RM2 District. 48. The RM2 district is defined in Code section 60.432 a “medium-density, low-rise multiple-family residential district.” 49, Section 60.105 of the Code states: “No building or structure, or part thereof, shall hereafter be erected, constructed, or altered and maintained, and no new use or change shall bee2cv-10-2015 File in Second Juda District Court ‘372072018 5:02 PM Ramey Goorty, MN made or maintained of any building, structure, or land, or part thereof, except in conformity with the provisions of this code.” 50. Section 60.203 of the Code defines “Building” as: “Any permanent structure having a roof supported by columns or walls, specifically excluding trailers and semitrailers as defined by Minnesota Statutes, chapter 169.” 51. Section 60.208 of the Code defines “Structured Parking” as: “Off-street parking that is placed within a ramp, deck, underground, enclosed building, or tuck-under garage.” 52, Section 60,203 of the Code defines “Setback” as: “The distance required to obtain front, side or rear yard open space provisions of this code, measured from the lot line to the above-grade faces of the building.” 53, Section 60.202 of the Code requires approval of the Planning Commission for the “establishment of a new off-street parking facility.” 54. Section 60.203 of the Code defines “off-street Parking facility” as: All areas, spaces and structures designed, used, required or intended to be used for the parking of more than three (3) motor vehicles, This definition is intended to include adequate driveways, accessways, parking bays, garages, of a combination thereof, but does not include public roads, streets, highways and alleys.” 55. Section 63.312 of the Code states: “Except as otherwise provided in section 66.442(a) or section 66.431(b) off-street parking spaces shall not be within a required front or side vyard and shall be a minimum of four (4) feet from any lot line.” 56. Section 60.203 of the Code defines “Building height” in pertinent part as: “The vertical distance measured from the established grade to the highest point of the roof surface for flat and shed roofs; to the break line of mansard roofs; and to the average height between eaves 10e2.cv-18-2015 Files in Second sult District Court ‘3726/2018 502 PM Ramsey County, MN and ridge for gable, gambrel, and hip roofs. Where a building is located on sloping terrain, the height may be measured from the average ground level of the grade at the building wall. The existing grade of the property shall not be raised around a new building or foundation in order to comply with the height requirements of this code.” 57. Section 60.203 of the Code defines “Grade” as: “The elevation established for the purpose of regulating the number of stories and the height of buildings. ‘Grade’ shall be the mean level of the finished surface of the ground adjacent to the exterior walls of the buildings.” 58. Section 60.203 of the Code defines “Structure” as: “Anything constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground.” B. The City Council Erred By Affirming The Planning Commission’s Decision To Permit The Developer To Raise The Existing Grade At The Property In Order To Comply With A Height Requirement Of The Zoning Code. 59. The Code establishes several building height requirements for the RM2 district. 60. For example, the Code contains a height requirement for new buildings or structures constructed in an RM2 district that precludes them from being more than 50 feet above the existing, established grade at the subject property. 61. The Code also regulates the height of any building or structure that extends or protrudes into a side yard of a property. 62. Specifically, with limited exceptions not applicable to this dispute, buildings and structures are only permitted to extend or protrude into a rear or side yard of a property if the building or structure is “zero feet” above ground (ie., at or below grade). 63. Ifa building or structure is more than “zero feet” above ground, it cannot be constructed in a required rear or side yard setback area without a variance. TTs2.cve2015 File in Second Jil Distct Court ‘2672078 3.02 PUM Ramsey County, MN 64, Under the Code, the determination of building height is based either on the existing, established grade (i.e., pre-construction grade) if the existing terrain is flat, or the “average ground level of the grade at the building wall” if the existing terrain is sloped. 65. In connection with the Site Plan, the City required the developer to calculate the existing grade at the property based on the “average ground level of the grade at the building wall.” 66, Using this method, the Developer determined that the existing grade at the property ‘was 899.7 feet above sea level, 67. The City approved and relied on the Developer's “existing grade” calculation in establishing the maximum height of the multi-family structure proposed for the Property. Specifically, the City required that the height of the proposed multi-family structure be no more than 50 feet above the existing grade. 68, The Code does not permit a developer to hide the true height of his structure by manipulating or adjusting the grade around a new building or structure in order to make it appear that the structure or building is shorter than it really is. 69. Section 60.203 of the Code explicitly prohibits this conduct stating, in pertinent part: “The existing grade of the property shall not be raised around a new building or foundation in order to comply with the height requirements of this code.” 70. The City applied this code requirement to at least one portion of the Developer's Site Plan. 71. Specifically, the Developer proposed that it would add fill around the walls of the proposed multi-family structure such that much of the “final grade” for the property would be approximately two feet above the average “existing grade.” As a result, the height of the proposed multi-family structure would be less than 50 feet above the “final grade.” 262.0v-18-2015 Fed in Second Juli! Disrit Court '2602078 3:02 PM Ramsey County, MN 72. Despite this fact, the City did not permit the Developer to increase the height of its, proposed multi-family structure to be more than above 50 feet above existing grade. In other words, the City would not permit the Developer to raise the grade at the property to make a 52 foot, tall building look like a 50 foot tal building. 73. In the Site Plan, the Developer proposed two off-street parking facilities—an eight space parking garage tucked under the proposed multi-family structure (the “Upper Parking Facility”) and a twenty-two space parking structure, part of which is under a multiple-family structure and part of which extends and protrudes into the rear and side yards at the development property (the “Lower Parking Structure”). 74. Inconnection with its evaluation of the Site Plan, and at all relevant times, the City ‘considered and treated the Upper Parking Facility and the Lower Parking Structure as two separate parking facilities, 75. Inlocations where the Developer’s proposed Lower Parking Structure extends and protrudes into the rear and side yards of the development property, the roof of the parking structure is nearly two feet above the established “existing grade” at the property. 76. Attached hereto as Exhibit 1, and incorporated by this reference, is a graphic depicting proposed structure of the Lower Parking Structure and its relative height to the “existing grade.” 71. The Lower Parking Structure is a building under the Code because itis a permanent structure having @ roof supported by columns or walls. 78. The Code prohibits the construction of a building that is more than “zero feet” above ground in a rear or side yard setback area without a variance. 2B62.0V-182015 Filed in Second Juciial District Court ‘312872018 3:02 Prt Ramsey County, MN 79. This is because the setback requirements under the Code are measured from the above grade face of a building to the relevant lot line. Thus, unless the height of the parking structure is “zero feet” above grade, it cannot be constructed in a side or back yard without a variance. 80. Under the Code, the Developer is not permitted to raise the existing grade of the property in order to comply with the requirement that a structure constructed in a rear or side yard be no more than “zero feet” high. 81. Despite the plain and unambiguous requirements of the Code, the Developer's Site Plan contemplates that the existing grade around the walls of the Lower Parking Structure will be raised to make this structure appear to meet the “zero feet” above grade requirement when, in reality, the structure is nearly two feet above the established, existing grade at the property. 82. The City Council affirmed the Planning Commission's decision to approve the Site Plan even though the Developer would have to raise the grade of the property around the walls of the Lower Parking Structure in order to meet the “zero feet” above grade requirement for a side or rear yard structure, 83. The Planning Commission’s decision to approve the Site Plan was contrary to the clear requirements of the Code and constituted an error as a matter of law. 84, Alternatively, the Planning Commission's decision to approve the Site Plan was unreasonable, arbitrary and capricious because it failed to consistently apply a plain and unambiguous restriction in the Code that precludes a developer from raising the existing grade for the purpose of meeting a height requirement in the Code. 14ez-cv-18-2015 Filed in Second Jolla Distrit Court 37262078 3:02 PM Ramsey County, MN 85. The City Council’s decisions to affirm the Planning Commission’s decision to approve the Site Plan and to approve the Site Plan were contrary to the clear requirements of the Code and constituted an error as a matter of law. 86. Altematively, the City Council’s decisions to affirm the Planning Commission’s decision to approve the Site Plan and to approve the Site Plan were unreasonable, arbitrary and capricious because it failed to consistently apply @ plain and unambiguous restriction in the Code that precludes a developer from raising the existing grade for the purpose of meeting a height requirement in the Code. C. The City Council Erred In Affirming the Planning Commission Decision and Approving The Site Plan Because The Project Exceeds The Maximum Lot Density Permitted In An RM2 Zoning District. 87. Section 66.231 of the Code sets density standards for the RM2 residential district. 88. Section 66,231 of the Code requires that multiple-family dwellings with 3 or more units be constructed only on lots larger than 9,000 square feet and requires a minimum of 1,500 square feet per unit. 89. Table 66.231, Note (c) provides for a limited “lot area bonus” when a developer provides certain kinds of off street parking. Specifically, the lot area figure may be increased by 300 square feet for each parking space located “within a multiple-family structure or otherwise completely underground.” Further, parking spaces “within an above-ground parking structure, except for the top level, may also be used for this lot area bonus.” 90. The “Notes to table 66.231, residential district dimensional standards” set forth in the code state in pertinent part: (©) No multiple-family dwelling shall be built, nor shall additional dwelling units be added to an existing building to create three (3) or more dwelling units, on a lot that is less than nine thousand (9,000) square feet in area. 15s2.ovs82015 File in Second Juda Dstrit Court ‘372872018 3:02 PM Ramsey County, MN In calculating the area of a lot for the purpose of applying the minimum lot area per unit requirement, the lot area figure may be increased by three hundred (300) square feet for each parking space (up to two (2) parking spaces per unit) within a multiple-family structure or otherwise completely underground. Parking spaces within an above-ground parking structure, except for the top level, may also be used for this lot area bonus. The maximum number of units possible on a lot using this lot area bonus can be calculated using the formula X = L ÷ (A - 600), where X = maximum units allowed, L= lot area in square feet, and A = required lot area per unit in square feet. A site plan showing parking layout and dimensions shall be required when applying for this lot area bonus. 91. In the Site Plan approved by the Planning Commission, the Developer proposed a total of thirty parking spaces for this development—eight garage parking spots in the Upper Parking Facility and twenty-two “structured” parking spaces in the Lower Parking Structure, 92. Contrary to the plain language of its Code, the City incorrectly determined that the Developer was entitled to a lot area bonus for each of the twenty-two “structured” parking spaces proposed by the Developer and thus, approved a lot area bonus for all thirty parking spaces on that basis. 93. Under the Code, parking spaces that are not “within a multiple-family structure,” “completely underground,” or “within an above-ground parking structure” may not be counted when calculating the lot area bonus. 94. The lot area bonus is not determined by whether a parking space is deemed “structured.” Instead, the lot area bonus is determined by whether a parking space is “within a ‘multiple-family structure or otherwise completely underground” or “within an above-ground parking structure, except for the top level.” 95. Attached hereto as Exhibit 2, and incorporated by this reference, is a graphic depicting proposed “Garage Plan” in the Lower Parking Structure. 1662.0v-182015 Fed in Second Juda Distt Court ‘3726/2018 202 PM Rameey County, MN 96. Only nine of the parking spaces in the Lower Parking Structure are arguably “within ‘a multiple-family structure” because only those spaces are within the footprint of the proposed multiple-family structure. 97. The remaining thirteen parking spaces in the Lower Parking Structure are not located “within a multiple-family structure or otherwise completely underground” as required by the Code and therefore cannot be properly counted when calculating the Tot area bonus. 98. Contrary to the plain language of its Code, the City incorrectly determined that each of the proposed parking spaces located within the Lower Parking Structure, and the Lower Parking Structure itself, were completely underground. 99. None of the proposed parking spaces located within the Lower Parking Structure are completely underground. 100. The Lower Parking Structure itself is not completely underground. 101. The City did not make a finding that the Lower Parking Structure was an above-ground parking structure and did not approve a lot area bonus for the development on that basis. 102, To the extent that the City now claims that the parking spaces in the Lower Parking, Structure are “within an above-ground parking structure,” none of these spaces can be properly counted when calculating the Jot area bonus. 103. The Lower Parking Structure has only one level. 104, Since the Lower Parking Structure has only one level, that level is the “top level” of parking in the Lower Parking Structure. 105. Under the Code, the proposed parking spaces on the top level of an above-ground parking structure are excluded from the lot area bonus calculation. 762.0V-10.2015 File in Second Judie! District Court ‘si2ar2018 302 PM Ramsey County MN 105. Accordingly, to the extent that the Lower Parking Structure is deemed to be an above-ground parking structure, the parking spaces on its only level cannot be counted when calculating the lot area bonus for the development. 107. The City did not properly calculate the lot area bonus and improperly awarded a lot area bonus for parking spaces that could not be counted when calculating the Jot area bonus for the development. 108. The City Council erred in affirming the Planning Commission decision approving the Site Plan, and in approving the Site Plan itself, when the lot area bonus had not been properly calculated. 109. The Planning Commission also erred by granting a “lot area bonus” to the Developer for all of the proposed parking spaces located within the footprint of the building in the Lower Level Structure. 110. Each of the proposed parking spaces in the Lower Level Structure are 90 degree parking spaces. 111, The Code requires that 90 degree parking stalls be a minimum of 9 feet wide and 18 feet long. 112. Owners of accessory parking facilities may designate up to 50% of available spaces, for “compact cars only,” which permits the size of those parking spots to be reduced in size. 113. Seven of the nine proposed parking spots that are both within the Lower Level Parking Structure and within the footprint of the multi-family structure have been designated on the Developer's Site Plan as compact parking spaces. 18,ez.cv-18-2018 Filed in Second Jil Distt Cout ‘12872018 302 PM Ramsey County, MN 114, The Developer’s Site Plan does not comply with the Code’s limitations on compact parking spaces because more than 50% of the permissible parking spaces are designated as compact parking spaces. 115, During the Site Plan review process, the City staff raised concerns that the Developer's “turning movement analysis [was] heavily reliant upon smaller vehicles.” 116, The Developer's garage plan must be revised in order to comply with the “under 50%” compact parking requirement as it relates to permissible parking spots. 117. The Developer will need to increase the size of several of the permissible parking, spaces and reconfigure the garage plan to meet the “under 50%” compact parking requirement. 118. These changes will necessarily require the reduction of the number of parking spaces under the multi-family structure because there is no way to fit five full-size parking spaces and four compact parking spaces inside the building's footprint. 119, The revision of the garage plan to comply with the “under 50%” compact parking requirement will result in the loss of at least one permissible parking space under the building, and potentially more. 120, ‘The Developer was not entitled to a “lot area bonus” for parking spots that do not comply with the requirements of the Code. 121. As such, the Developer should have received a “lot area bonus” for fewer than nine of the parking spaces that are both within the Lower Level Parking Structure and within the footprint of the multi-family structure, 122, The City Council erred in affirming the Planning Commission decision approving the Site Plan, and in approving the Site Plan itself, when the Developer's site plan exceeded the lot density requirements of the Code. 1962.08.2015 D. Alternatively, The City Council Erred In Affirming The Planning Commission Decision And Approving The Site Plan Because The Project Exceeds The Maximum Lot Area Coverage Permitted In An RM2 Zoning District. 123, Section 66.232 of the Code states in pertinent part: “In residential districts, principal buildings shall not cover more than thirty-five (35) percent of any zoning lot.” 124, On information and belief, the City considers the Lower Parking Structure to be a “principal building” under the Code. 125, During the Zoning Committee meeting, Tia Anderson made statements regarding, among other things, the Developer’s proposed Site Plan, the City staff's interpretation and purported application of the Code, and the procedure utilized by City staff and the City’s Planning, Commission to approve the Site Plan. 126, Among other things, Tia Anderson informed the Zoning Committee members that City staff determines lot area coverage “based on above ground structure as it relates to the lot area.” 127. Among other things, Tia Anderson informed the Zoning Committee members that staff had determined that the Lower Parking Structure “is completely underground.” 128. Attached hereto as Exhibit 3 is a true and correct copy of the January 4, 2018 0 their Zoning Committee meeting minutes. Plaintiffs incorporate these meeting minutes complaint as though fully set forth herein for the purpose of establishing the information on which the Planning Commission and City Council based their decision, but do not concede the truth or accuracy of such statements or the conclusions derived in whole or part from such meeting minutes. 129. The Lower Parking Structure is not completely underground. 130, To the extent the City claims that the Lower Parking Structure is an above-ground parking facility for purposes of calculating the lot area bonus, the Lower Parking Structure must 20 Fed in Second Jolla District Court 572872018 3:02 PM Ramsey County, MN62.0V-182015 Filed in Second Judie Disiet Court ‘3726/2018 302 Pid Ramsey County, MN be equally deemed to be an “above ground structure as it relates to the lot area,” and must be taken into consideration when calculating the lot area coverage. 131, If the area covered by the Lower Parking Structure is included in the lot area coverage calculation, the Site Plan exceeds the maximum 35% lot area coverage. E. The City Council Denied Plaintiffs’ Appeal And Approved The Site Plan. 132, On January 12, 2018, the Planning Commission voted to approve the Developer's Site Plan subject to certain conditions. 133. Plaintiff’ timely appealed the Planning Commission's decision to the City Council 134, The City Council held a hearing on Plaintiffs’ appeal on February 7, 2018. 135. During the hearing, Tia Anderson made statements regarding, among other things, the Developer's proposed Site Plan, the City staff's interpretation and purported application of the Code, and the procedure utilized by City staff and the City’s Planning Commission to approve the Site Plan, The statements made by Tia Anderson are contained in the City Couneil’s recording of the appeal hearing. Plaintiffs incorporate Tia Anderson's statements as though fully set forth herein for the purpose of establishing the information on which the City Council based its decision, but do not concede the truth or accuracy of such statements or the conclusions derived in whole or part from such statements. 136, Plaintiffs' attomey appeared and made statements in favor of the appeal. The statements made by Plaintiff's attomey are contained in the City Council’s recording of the appeal hearing. Plaintiffs incorporate these statements as though fully set forth herein. 137, Members of the City Council members asked questions during the hearing and ‘made statements regarding, among other things, the Developer’s proposed Site Plan, the City staff's, the Planning Commission’s and their own interpretation and purported application of the Code, and the procedure utilized by City staff and the City’s Planning Commission to approve the 21e2.0v-18.2015 File in Second Juda Dstt Court ‘r2az018 3.02 Put Ramsey Couniy, MN Site Plan, The statements made by members of the City Council are contained in the City Council’s recording of the appeal hearing. Plaintiffs incorporate these statements as though fully set forth herein for the purpose of establishing the information on which the City Council based its decision, but do not concede the truth or accuracy of such statements or the conclusions derived in whole or part from such statements. 138. After the close of the hearing, and before the City Couneil voted on whether to affirm the Planning Commission’s decision, Councilmember Stark stated that “the density bonus piece is just based on the parking being enclosed in some form” and that, based on his conversations with both City Staff and the City’s attorneys, parking spots did not need to be underground. Councilmember Stark then reiterated his understanding that “The density bonus comes from parking that is enclosed.” 139, Councilmember Stark's statement of the law, which formed the basis of the City Council's decision, is incorrect. 140, The Code does not define “enclosed” parking and the lot area bonus (i.e., the density bonus) is not determined by whether a parking space is “enclosed.” Fhe City Council Decision Was Contrary To The Requirements Of The City’s Comprehensive Plan. 141. One or more of the buildings currently at the Property were designed by a prominent St. Paul architect in 1906 and the buildings reflect the history and character of the neighborhood. 142, The City’s Comprehensive Plan, which is incorporated into the Zoning Code by express reference, requires that the City preserve and protect both designated and undesignated historic resources such as one or more of the buildings currently at the Property. 2e2.0v-182015 File in Second Juda Dstt Court ‘12872078 9:02 Pat Ramsey County, MN 143. The Planning Commission’s decision to approve the Site Plan and the City Council’s decision to affirm that decision were inconsistent with the City’s Comprehensive Plan, which requires that the City preserve and protect both designated and undesignated historic resources such as one or more of the buildings currently at the Property. 144, The Developer's Site Plan also fails to comply with the City’s Comprehensive Plan because the proposed development does not adequately protect adjacent and neighboring properties through reasonable provision for such matters as surface water drainage, sound and light buffers, preservation of views, light, and air, and those aspects of design, which may have substantial effects on neighboring uses. 145. Councilmember Stark, the member who moved to affirm the Planning Commission's decision admitted that “You could look at the Comp Plan and find reasons why this {site plan] is inconsistent with the Comp Plan...” COUNT I. DECLARATORY JUDGME) 146, Plaintiffs restate, reallege and incorporate herein by reference, the allegations contained in all of the preceding paragraphs. 147, An actual, substantial, and immediate controversy exists between the parties concerning the following issues: a. Whether the City and its Planning Commission erred by approving a site plan that contemplates the construction of a multi-family structure that exceeds the ‘maximum unit density permitted by the Code; b. Whether the City and its Planning Commission approved a site plan based on an erroneous interpretation, calculation or application of the permitted “lot area bonus”; c. Whether one or more parking spaces contemplated by the Site Plan are within a ‘multiple-family structure or otherwise completely underground.” 23k 148. s2.cv-te-2018 Fad in Second suai 5 Distiet Court ‘7262016 5:02 PH Ramsey County, MIN Whether one or more parking spaces contemplated by the Site Plan are on the top level of the Lower Parking Structure such that they cannot be counted toward the lot area bonus; Whether the City and its Planning Commission approved a site plan based on an erroneous interpretation or application of the Code’s restriction on changing the existing grade at a property to meet the height requirements of the code; Whether the City and its Planning Commission approved a site plan based on an erroneous interpretation or application of Code requirements for maximum lot area coverage; Whether the City and its Planning Commission erred by approving a site plan that exceeded the Code requirements for maximum lot area coverage; ‘Whether the City and its Planning Commission erred by approving a site plan that does not comply with its duly adopted Comprehensive Plan; Whether the City and its Planning Commission acted in an unreasonable, arbitrary or capricious manner by failing to consistently apply the Code’s restriction on changing the existing grade at a property to meet the height requirements of the code; Whether any action by the City purporting to authorize the Site Plan requested by the Developer is unlawful and constitutes a violation of the applicable City ordinances and State statutes; and ‘Whether the moratorium adopted by the City expires in October or November 2018. ‘An actual, substantial, and justiciable controversy presently exists as to the above issues, and possibly others. This controversy is between parties having adverse legal interests of such sufficiency, immediacy, and reality to warrant the issuance of a declaratory judgment. 149, ‘Unless this Court issues a declaration that the City must follow the plain language of its Code, Plaintiffs will continue to suffer prejudice to their rights and will continue to incur immediate and substantial harm. 150. The Developer will suffer no cognizable injury if the City properly enforces the requirements of its Code. The Developer been fully aware at all relevant times of both the actual Janguage and requirements of the Code and the fact that the City’s decisions regarding its proposed site plan must fully comply with such Code. 2462.08.2015 Fed in Second Judit District Court 372872018 5:02 PM Ramsey County, MN 151. Under these circumstances, a declaration of rights with respect to the scope and application of the applicable ordinances and statutes, and the corresponding actions by the City, ‘would be a practical help in ending the controversy. 152. Pursuant to the Minnesota Uniform Declaratory Judgment Act, Minn. Stat. §§ 555.01, et seq., Plaintiffs are entitled to, and hereby requests that the Court enter, a judgment declaring the parties’ legal rights, status, and other legal relations with respect to the issues set forth in Paragraph 147 of this Counterclaim. COUNT I REQUEST FOR TEMPORARY AND PERMANENT INJUNCTIVE RELIEF 153, Plaintiffs restate, reallege and incorporate herein by reference, the allegations contained in all of the preceding paragraphs. 154. Plaintiffs are likely to be irreparably harmed if the City is not required to properly interpret and apply the Code and Comprehensive Plan it adopted. 155. _ Plaintiffs are also likely to be irreparably harmed if the City issues building or other permits contemplated by the improperly approved Site Plan. 156. The actions of the City threaten Plaintiffs and the other members of the Association with irreparable injury to their property interests. 157, Plaintiffs are entitled to an affirmative or mandatory injunction pursuant to Rule 65 of the Minnesota Rules of Civil Procedure requiring the City to reverse its decision approving the Site Plan and enjoining the City from proceeding forward with that Site Plan. COUNT I NEGLIGENCE 158. Plaintiffs restate, reallege and incorporate herein by reference, the allegations contained in all of the preceding paragraphs. 2562.0v-18-2015 Fed in Secon Jul District Court 37262078 3:02 PM Ramsey County, MN 159, The City has a duty to use due care in the exercise of its proper administration of zoning and land use authority, to refrain from exceeding the scope of this authority, and shall not use this authority in a malicious and abusive manner for improper purposes such as depriving the Tights of property owners. 160, The City has breached this duty with respect to Plaintiffs to the extent it has authorized the Site Plan or plans to issue any permits in violation of state statute and City ordinances. 161. Plaintiffs have sustained and will continue to sustain substantial and irreparable injuries which were directly and proximately caused by the negligence of the City as a result of the City’s above described failure to exercise due care in the proper administration of zoning and land use procedures, the enforcement of zoning and land use ordinances, and the supervision and/or actions of City officials. 162. As a result of the City's negligence, Plaintiffs have incurred and will continue to incur substantial and irreparable harm and damages. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court enter a judgment against the City and in favor of Plaintiffs as follows: 1. Declaring that: a. The City and its Planning Commission erred by approving a site plan that contemplates the construction of one or more buildings that would exceed the maximum unit density permitted by the Code; b. The City and its Planning Commission improperly approved a site plan based on an erroneous interpretation, calculation or application of the permitted “ot area bonus” c. No more than 16 parking spaces contemplated by the Site Plan are “within a multiple-family structure or otherwise completely underground.” 26e2-ov-1e2015 Filed in Second Jil District Court ‘72120%8 5:02 PM Ramsey County, MN 4. The parking spaces in the Lower Parking Structure cannot be counted toward the Jot area bonus on the basis that they are “within an above-ground parking structure.” . The City and its Planning Commission approved a site plan based on an erroneous interpretation or application of the Code’s restriction on changing the existing grade at a property to meet the height requirements of the Code; The City and its Planning Commission approved a site plan based on an erroneous interpretation or application of Code requirements for maximum lot area coverage; g. The City and its Planning Commission erred by approving a site plan that does not comply with the Code’s maximum lot area coverage; h. The City and its Planning Commission erred by approving a site plan that does not comply with its duly adopted Comprehensive Plan; i. The City and its Planning Commission acted in an unreasonable, arbitrary or capricious manner by failing to consistently apply the Code’s restriction on changing the existing grade at a property to meet the height requirements of the code; j. The City’s approval of the Site Plan requested by the Developer is unlawful and constitutes a violation of the applicable City ordinances and State statutes; and Kk. The moratorium required by Ordinance 17-54 expires no sooner than November 23, 2018. 2. _Affirmatively requiring the City to reverse its decision approving the Site Plan by way of a mandatory injunction pursuant to Rule 65 of the Minnesota Rules of Civil Procedure; 3. Temporarily and permanently enjoining Defendant City, its agents, servants, and employees, from issuing of any and all permits for the proposed construction at the Property in furtherance of the improperly approved Site Plan; 4, Awarding Plaintiffs’ monetary damages in amounts to be determined at trial; 5. Awarding Plaintiffs’ their costs and attorneys’ fees as and if permitted by law; and 6. Granting Plaintiffs such other and further relief as the Court deems equitable and just. 27e2-cv-182016 Dated: March 7, 2018 28 Filed in Second Judltal Ostet Count ‘37202078 5:02 PM Ramsey County MN 225 South Sixth Street Suite 3500 Minneapolis, Minnesota 55402 Telephone: (612) 604-6400 E-Mail: mobermueller@winthrop.com and Erick G, Kaardal, Esq., #229647 Mohrman, Kaardal & Erickson, P.A. 150 South Fifth Street Suite 3100 Minneapolis, MN 55402 Telephone: (612) 341-1074 E-Mail: kaardal@mklaw.com ATTORNEYS FOR PLAINTIFFSS2cv-se2018 Fed in Second Judea Dstt Court ‘32872018 302 PH Ramsey County, MN ACKNOWLEDGMENT REQUIRED BY MI T. § 549.211, SUB. 1 ‘The undersigned hereby acknowledges that pursuant to Minn. Stat, § 549.211, costs, disbursements and reasonable attomey and witness fees may be awarded to the opposing party or parties in this litigation if the Court should find that the undersigned acted in bad faith, asserted a claim or defense that is frivolous and that is costly to the other party, asserted an unfounded position solely to delay the ordinary course of the proceedings or to harass; or committed a fraud upon the Court, Dated: March 7, 2018 WINTHI C1 Lge Michael E. Obermuelfer, #031772X 225 South Sixth Street Suite 3500 Minneapolis, Minnesota 55402 Telephone: (612) 604-6400 E-Mail: mobermueller@winthrop.com ATTORNEYS FOR PLAINTIFFS 130833402 29ove e2ov-ie2015 Fed in Second Judea Dstt Court ‘s262018 902 er Ramsey County, MN Exhibit 1| aapadsied AN uoireford eee = a100\q| pue |/E4SJEW nav ‘hunog Aoswe, Wa zoe etozeae ‘uno eUIG TeRIBN puD9= UPI sto2-01-n9-2962.0v-482015 Fie in Second Judicial District out ‘3728/2018 502 PM Ramey County, MN Exhibit 2ze st 8 0 NV1d J9VeVS | | He aH OLOAY 270 SE OE sees JANIAV TIVHSUV c re hunog Kasuea Wa zoe auozezre unog USI FemIENe punD=K w PAL AAT 07 s1oe-81-n9-29 - = i oe > aomeany 9018 O¥BI3S ANOWS 433415 UOOW "Ne2.cv-18-2015 Filed in Second Jule Distrit Court 51262018 3:02 PM Ramsey County, MN Exhibit 3evEee Filed in Second Justa District Court “7262018 302 PM Ramey County, MN MINUTES OF THE ZONING COMMITTEE ‘Thursday, January 4, 2018 - 3:30 p.m. City Council Chambers, 3rd Floor City Hall and Court House 48 West Kellogg Boulevard PRESENT: DeJoy, Eckman, Edgerton, and Reveal EXCUSED: Baker, Fredson, Lindeke, and Ochs STAFF: Jamie Radel, Cherie Englund, Allan Torstenson, and Peter Warner ‘The meeting was chaired by Commissioner Edgerton. Scheffer Community Center - 17-221-608 - Conditional use permit for replacement and expansion of community center building, with variances of required parking spaces (22 required, 20 proposed) and front setback (25 ft. required, 18 ft. proposed) at 230 Como ‘Ave., SE comer at Galtier St. Jamie Radel presented the staff report with a recommendation of approval for the conditional Use permit and variance with one condition. District 7 made no recommendation. There were no letters in support and 1 letter in opposition. The applicant, Chris Stark, Cy of Saint Paul Parks and Recreation project manager, 25 West, 4° Street, said a community request was to make the community center a more prominent feature. For this, the building is proposed fo be closer to Como Avenue. The most popular program elements are football and basketball, Adding more parking or seting the building back further from Como Avenue would result in loss of the abilly to provide youth football Linda McCracken-Hunt, JLG Architects, 322 1* Avenue North, Suite 600, Minneapolis, said she is happy that this community will have a new recreation and community center. No one spoke in favor or opposition and the public hearing was closed. ‘Commissioner Reveal moved approval of the conditional use permit and variance with one condition. Commissioner DeJoy seconded the motion. ‘The motion passed by a vote of 4-0-0. Adopted Yeas-4 Nays-0 — Abstained -0 ‘Submitted by: Dgaftedby: Cherie Engluid Recording SecretaryPRESENT: EXCUSED: STAFF, nove 20H) Fle in Second Nulla Distt Court "726/2018 3.02 PM Ramsey Couns, MN MINUTES OF THE ZONING COMMITTEE ‘Thursday, January 4, 2018 - 3:30 p.m. City Council Chambers, 3rd Floor ity Hall and Court House 15 West Kellogg Boulevard DeJoy, Eckman, Edgerton, Lindeke, and Reveal Baker, Fredson, and Ochs Tia Anderson, Kady Dadlez, Cherie Englund, Allan Torstenson, and Peter Warner The meeting was chaired by Commissioner Edgerton. Marshall & Moore Apartments - 17-206-385 - Si plan review for a 5-story, 16 unit apartment building with 30 structured parking spaces at 1973-1977 Marshall Ave., NE corner at Moore St. ‘Tia Anderson presented the staff report with a recommendation of approval with conditions. She noted District 13 recommended denial, in opposition, ind there were 33 letters in support, and 63 letters, In response to questions by Commissioner Reveal, Ms, Anderson said the first floor includes ‘one unit and 8 enclosed parking spaces and is within the footprint of the main building. She noted that a historical study has been proposed, but it has not been funded or approved. Although the homes are old, they have not been inventoried or designated as historic. In response to a question by Chair Edgerton, Ms. Anderson said that balconies are subject to lot coverage and setback requirements. Jn response to questions by Commissioner Reveal, Ms. Anderson said the moratorium was put into effect for six blocks on Marshall Avenue, between Wilder and Wheeler. It precludes development that would add housing units, but allows projects that were submitted prior to the moratorium going into effect. Ms. Dadlez noted that the moratorium was adopted by City Council on October 18, 2017, for a term of one year, and will expire on October 18, 2018. uring that time staff will conduct a zoning and land use study of Marshall Avenue from the Mississippi River to Hamline Avenue to determine if there are any zoning changes needed. Ms. ‘Anderson added that this property is within the student housing overlay district, which applies to single family homes and duplexes, not mult-family housing. In response to a question by Chair Edgerton, Ms. Anderson said the zoning code is more quanlitative and the comprehensive plan provides more general goals and guidelines for development, such as balancing suppor for greater density and maintaining neighborhood scale. The comprehensive plan is more general, brought to the specific by Zoning Code requirements that are more quantifiable. ‘The applicant, Jon Schwartzman with MCR Property Holdings, LLC, 10921 Excelsior Blvd, #106, Hopkins said his company owns numerous properties in Saint Paul. He said they bought 1973-1977 Marshall Avenue in 2016 and 2017. Both properties are located within the RM2 zoning code district, which would allow them to develop a mult-family buildinga Filed in Second Juciil Distt Gout ‘32672018 3.02 Pu Ramey County, HN Zoning Committee Minutes Zoning File #17-206-385 Page 2 of 10, Mr. Schwartzman said the concept for this new apartment building is to provide an affordable rental option for students and young working professionals in an area where there is a rental shortage. He said he attempted to find housing for his children attending college in the area land most young adults find it difficult to find modern, safe, and affordable housing in the area Young working adults cannot afford fo own homes in the area, and are looking for affordable rental options. Old duplexes, 4-plexes, and 50+ year old apartment buldings in the area do not offer the tenant much except high rent. Many are in bad condition, with minimal security, street parking, and antiquateo HVAC, appliances, lighting, electrical and plumbing systems. Mr. ‘Schwartzman said that there is a huge gap that needs to be filed with new, affordable rental options. He said the average rental rate for a 700 sq, ft, one-bedroom apartment located in the Union Park area is $1,435.00 per month, based upon Rent Café data, He added that old is not bad, but the conditions of these properties can be a problem for any renter if they are not maintained and upgraded Mr. Schwartzman Said that after meeting with Pope Architects and City staf, it was determined that the proposed development for 1873-1977 Marshall Avenue would be feasible and could ‘meet all of the zoning and building code requirements. He added that the houses at 1973-1977 Marshall Avenue are not registered with the City or state as historically significant, ‘Mr. Schwartzman said they have attended 2 Union Patk District Council meetings and listened to the concerns of neighbors, They have made design changes based on neighborhood suggestions and thanked the Union Park District Council for their input. The apartment vil feature amenities such as bicycle parking, WEF, fully furnished, new appliancas, in-unit laundry, big screen televisions, security, handicap accessibility, undercover garage parking, vending machines, shuttle service, in-building management, and upgraded finishes. There is a Metro- ‘Transit bus stop infront ofthe building. Rent will average $850.00 per tenant, with units ranging in size from 900 sq. ft t0 1,800 sq. ft. Though this project will begin to fill he housing gap inthis area, more is needed. He understands that the building isa change for the Marshall Avenue landscape and will not be lied by some neighbors in the area, bul feels strongly that the benefits outweigh the objections, many which are unfounded and unfair, Anyone who wants to live inthis area should be able to find modern, effordabie, and safe housing Matt Privretsky, 1237 Hubbard Ave., spoke in support and sald the project makes sense and the developer s meeting the City’s guidelines. He added that Saint Paul needs new housing and the vacancy rate is just above 2%, one of the lowest vacancy rates in the country, which creates high housing costs. Kelsey Barrier, 206 S. 19% Street, Omaha, NE, spoke in support and said she graduated from St. Thomas University in 2014 and lived near this location. She and her friends had a hard time finding housing that was updated and secure, and ended up living in a house near campus that was run down and had a rodent problem. She said she would like to move back to St. Paul after graduation, but with the burden of student loans cannot afford to pay over $1,000.00 per month for a one-bedroom rental. She would like the option of having a safe and secure apartment with parking that would be affordable. Megan Jeriko, 1006 Grand Ave., spoke in support and said she graduated from St. Thomas University in 2016. Itis hard for young adults to find affordable housing that is nice. While ins2.cv-1e2015 Fed in Second Judicial Distt Court 572672018 3:02 PM Ramsey County, MN Zoning Committee Minutes Zoning File #17-206-385 Page 3 of 10 college she said she dealt with high rent, appliances that did not work, and unsafe conditions, ‘She stayed in Saint Paul after graduation and it has been hard to find affordable housing. Her nly option was to live with three other recent graduates and they settled on a house that had nly one bathroom, a rodent problem, malfunctioning heat and air-conditioning and a landlord that was unreachable. There is a desperate need for modern and affordable housing in this area for students and young adults, and this proposal would help meet that need. Max Schwartzman, 2155 Selby Ave., said Jon Schwartzman is his father. He said that he runs the day-to-day operations of the real estate portfolio, manages seven houses, and has seen the ‘demand for rental property and what Saint Paul has to offer. He noted that according to CNBC the national vacancy rate for apartments is 4.4%, the Star Trioune reports that Saint Paul's vacancy rate fluctuates between 1.6% and 2.4% for the past few years and there is a direct correlation between rent prices and vacancy rates. He said with Saint Paul's vacancy rate being twice as low as the national average, the rent prices have skyrocketed because of supply and demand principles. The average rent in the Twin Cities is currently $1,400.00 per month. and the national average is $1,200.00 per month, which means we are 17% higher than the national average. Many employees in the area do not make enough money to live in the area. Greg Chmiel, 417 12" Ave. SE, Minneapolis, spoke in support, and said that there is an affordable housing shortage in Saint Paul and in the past three years he has had trouble finding housing near Saint Thomas. He searched for housing a year in advance and was forced to find housing in Minneapolis and drive to school, which is cheaper than if he had stayed in Saint Paul. Itfeels like he and his peers are being penalized for pursuing a higher education. He said itis not a lot to ask to have new, safe, and affordable housing, and this proposed development is just what young professionals need, Grant Riessen, 1195 County Rd. E, Arden Hils, spoke in support, said he is a recent graduate ‘of Northwestern University in Saint Paul, and as a young professional in his frst job he has a lot to consider financially, Housing is the most expensive thing he pays for each month. There are many new apartment options, but they are $3.00 per square foot. $1,600 per month for a 550 ‘square foot apartment would send him into a financial tsunami. He added that ne currently pays ‘over half of his salary for housing where he is building no equity. ‘Sam Daoud, 2195 Selby Ave., spoke in support. He said he is a senior at Saint Thomas and hhas struggled to find good, affordable housing since his freshman year. His options were slim, generally overpriced, outdated buildings, with few safety features. As a young professional he is again searching for housing, and has found multiple one-bedroom apartments with monthly rent of about $1,500.00 and cannot afford this. This proposal gives college graduates who are transitioning into careers a shared housing option that is affordable, high quality and safe. He sald If given this opportunity, it would also allow him to save money for a down payment on a house of his own. Beau Walter, 2865 Lexington Ave. N., Roseville, spoke in support and said he is a graduate of the University of Northwestern in Roseville, is working an entry level accounting position in Saint Paul and has had trouble finding housing that is adequately kept up or that would not break the bank in order to be closer to work. He said the bonus of this proposal is that there is a bus stopSacvae2Or6 Fed in Second JusicialDistiet Cout 7282018 3:02 PM, Ramsey County, MN Zoning Committee Minutes Zoning File #17-208-385 Page 4 of 10, right outside the building and he relies heavily on public transportation. He said this proposal would help him to save money, while stil living in a safe, high-end apartment. Lilly Hoyt, 25 Wheeler St. S., spoke in support. She said she is a junior at the University of Saint Thomas and that Saint Paul lacks affordable housing for young adults. She began looking for an apartment in March 2016 and could not find one that was affordable until June 2018. The apartment she found was over 50 years old and overpriced for its condition. She can hear a tenant in another unit snoring, and it only offers on-street parking. She said the safety of private parking and keyless entry at this location appeals to many young adults wishing to live in Saint Paul Leandra Aldoff, 1625 Minnehaha Ave. W., spoke in support. She is a recent graduate of Hamline University and has lived in Saint Paul for the past four years. She said she recently toured the apartments above Whole Foods on Snelling Avenue and thought that was where she ‘would live until she discovered that rent would be $1,400.00 for a studio apartment. This proposed development would give her the opportunity to live in an apartment comparable to the fone on Snelling Avenue, but with a more affordable rent. She said Saint Paul is in a housing shortage and landlords are taking advantage of this by asking for higher rent. She sald the safely features of 24/7 surveillance and key card access at the front door stood out to her. Kristen Marttila, a partner at the law firm of Lockridge, Grindal, and Nauen, 100 Washington ‘Ave. S., Minneapolis, submitted a letter and spoke in opposition. She requested more time to speak than the allotted two minutes. She said that the moratorium exempts proposals that are usally submitted to the City in proper form by the deadiine, but this application was not in proper form due to the number of elements of the plan. She said those items were outlined in an October 2017 letter from Erick Kaardal and much of that details sti lacking in the revised site plan. Given the number of changes it makes sense to consider this as a new application that is covered by the moratorium. If the Committee proceeds to consider the proposal despite the moratorium, variance and conditional use permits will not be available for this project and must be in strict compliance with the zoning code. She said that the parking proposal is not compliant with City ordinances, as designed with the parking structure above ground by about two feet, and this changes the lot coverage from just below 35% to 54%. She added that the parking also intrudes upon the required setbacks for the side and rear yards, and the proposal no longer ualifies for the density bonus for 16 units, fosing 3 apartments and 13 parking spaces. She said that the site plan review calls for a foot of seperation between the 100-year high water level and low floor. Chair Edgerton noted that they had submitted comments in writing covering many of these items. Ms. Mattila said some items were covered in writing in some amount of detail. The high water mark was not available to them in advance of the meeting with enough time to submit written comments. Shanna Sether-Clarksen, 1980 Iglehart Ave., submitted a letter, spoke in opposition, and also submitted a packet at the meeting, She said reading plans can be very complicated and they have identified a comment from the site plan review meeting by Wes Saunders-Pierce outlining the requirement for 1” separation between the 100-year high water level and ow floor. She saide2-cv-18-2015 Fed in Second Jil Distt Court ‘372872018 3:02 PI Ramsey County, MN Zoning Commitee Minutes Zoning File #17-206-385 Page 5 of 10 the architectural plans that were drafted show the low fioor elevation at 891, 891.14 is identified in the civil drawings as the high water mark, and that they need a foot of separation. She said the rendering was done before they knew about the difference in elevation. She added that the structure is above grade and that will alow the developer to over build the lot. As well, density bonuses in a residential corridor are provided to meet density goals and the proposal exceeds those goals with its 16 dwelling units on .323 acres, which calculates to 45.9 dwelling units per acre, and this does not meet the comprehensive plan. Julie Reiter, Executive Director, Union Park District Council, 1623 Hague Ave., submitted a letter and spoke in opposition. ‘She said the Union Park District board has voted in denial ofthis, site plan and the land use committee had a meeting in October and submitted a letter to the developer and the City with their concerns. The board found that neither the updated site plan, nor the staff report have adequately addressed the key concerns from that letter, which include the scale and height ofthe building, the high volume of student tenants, trafic and parking issues, preservation of historic character, elc, She added that these concems are also noted in the January 3, 2018 resolution. She said the board disagrees with the staff report that this project is consistent with the Union Park community plan, whichis a part of the City's Comprehensive plan. She said the proposed plan does rot fit with the character of the neighborhood, does not encourage the rehabiltation of existing housing stock to support preservation, and does not support the development of affordable housing. She said that the Union Park District Council has a record of supporting increased density within the community, but this development is diferent in quality and quantity Mary Anderson, 1969 Marshall Ave., spoke in opposition and said she lives next door to the proposed apartment building and has lived at this address for 65 years. She said she takes pride in her home and neighborhood, which has evolved over the years. She said her hame ‘was designed by architect, J. Walker Stevens and built in 1883. She said she was contacted by ‘Sam Doud, who offered to buy her home, but the true buyer was Jon Schwartzman and that is how she said she found out that the two houses next to her had been sold and set for demolition. She said traffic, car noise, lights, and exhaust will impact her side yard at all times, day and night and she is concerned that water and meiting snow will flood her property. Douglas Alichin, 2005 Carroll Ave., submitted a letter, spoke in opposition, and said there are larger issues outside of the boundaries of this property, including the inclusion of the community plan as part of the Zoning code in regard to the scale of the neighborhood, and neighborhood character and scale. He said the proposal gives a vision of the project, but not the context, He took a photo of the property, adding a drawing to show the size of the proposed building next to other homes. The building stands out 4 from the porches and 10’ from the first floor of the houses along Marshall Ave., and the proposed roof is 60% over the existing roofline along Marshall Ave. He said this -story building would be unprecedented in a square mile from ‘Summit to 194 and Snelling to Cleveland, Fr. Alvaro Perez, 2001 Dayton Ave., associate pastor at the Church of St. Mark, spoke in ‘opposition and said this is the oldest church in the neighborhood, and founded in 1889. He said they have about 479 families and 2,000 parishioners. He said they also have a school, kindergarten through eighth grade and the increased density of student housing poses a safetyeoccuseemts Fle in Seeond Juical Disrict Court ‘3128/2016 3.02 PM Ramsey County, MN Zoning Committee Minutes Zoning File #17-206-385 Page 6 of 10 issue for the children and will drive families out of the neighborhood. He said the church of St, Mark is also concerned about parking and traffic issues for the church and school. Ben Minge, 1449 Goodrich Ave., Mac-Groveland Land Use Committee spoke in opposition and said this is similar to a lot of projects that they have seen. He said they question whether this proposal fits with the neighborhoods character, style, or scale. He said they are not opposed to development, but to put a 5-story building in the middle of a neighborhood does not fit the community pian, Aaron Rubenstein, 75 5" St. W., Program Director, Historic Saint Paul, spoke in opposition and submitted a letter. He said their mission is to promote the heritage, character, and vitality of St. Paul's neighborhoods. He said the proposed site plan conflicts with the policies under the City's comprehensive plan and does not conform to one of the required findings for site plan review. He said that Historic Saint Paul concurs with Kady Dadlez on the November 9, 2017 site plan review report in which she said, "generally speaking, the comprehensive plan calls for increased density in residential corridors consistent with the prevailing character and the overall density of the area.” He said that the Heritage Preservation Commission directed staff to undertake a historic designation study of the Merriam Park area and there is an expectation that the City will provide funding for this. He said it will be up to the Planning Commission to balance what the policies are and how well the project conforms or conflicts with them. He said that issues of ‘community character and scale are vitally important issues that the Planning Commission will have to take into account. He said there is a conflict between the Zoning Code and the Comprehensive Plan. Vickey Hovza, 1968 Marshall Ave., spoke in opposition and said she Is upset by the project displacing animals in the neighborhood, She said she wants to keep her neighborhood quiet and safe. She added that parking is needed for the current residents and church. Jonathan Lund, 2015 Iglehart Ave., spoke in opposition and said his award nominated gardens with Blooming Saint Paul will be shaded by this proposed building. He said this is simply a dormitory and we have experience with this type of housing. He said that the owner of 301-303, N. Wilder St, decided to not rent his 3 and 4 bedroom apartments to students because they became too destructive, and had too many nuisance calls. He said St. Thomas has resources available to create student housing if they need student housing. He said itis unfair and irresponsible to ask the citizens of the neighborhood to absorb the traffic and disruptions. Scott Van Wert, 1985 Marshall Ave., submitted a letter, spoke in opposition, and said the student-housing overlay applies to single family homes and duplexes. It allows up to eight students to be in a house in this neighborhood. He said the house here had students who had to move out. He said there were no issues with ths living situation and there are many homes in the area where you could convert single-family homes into student housing and stil have 150° of separation by code, He said this should be a part of the comprehensive plan. He added that balconies are also a danger for student housing Robert Clarksen, 1980 Iglehart Ave., submitted a letter, and spoke in opposition. He said that he and his wife have 30 years of combined practical experience as City Planners for the City of Minneapolis. He said he cannot understand how the City of Saint Paul has determined that this,eacwaeens Filed in Second Judea District Court ‘72612018 3.02 PM Ramsey County, MIN Zoning Committee Minutes Zoning File #17-206-385 Page 7 of 10 project is consistent with the comprehensive plan and that it meets zoning code regulations. He said that this 5-story building will destroy the view from his back windows. He said that there is no analysis on the record whether 1973-1977 Marshall had historical value, but we know that the architect that buit 1977 Marshall also buil the Palace Theatre, several other properties around the ciy, and over 19 courthouses in the Dakotas and Minnesota. These properties need to be explored for historical value before knocking them down, He displayed a picture of the proposed parking facilty in the east and rear yards showing portions of the building within the setbacks, and said parking is not completely below grade. Dan Weston, 2005 Marshall Ave., submitted a letter, spoke in opposition, and said that this ‘application was filed one day prior to the moratorium going into effect. He said the application does not appear to be complete and because of this he said there have been several modifications that are not due to neighbor requests. He has been a registered structural engineer for 30 years and does not believe that this building works and is not sure that they can get the mechanicals added where they are suggesting them, Michael Kroona, 1890 Igiehart Ave., submitted a letter and spoke in opposition. He noted that Mr. Schwartzman said rent will be $800.00 per month, but he said that amount is not guaranteed and until there is a contract signed he can charge whatever he wants for rent. Rent will be determined by supply and demand Rachel Westermeyer, 1985 Summit Ave., co-chair of the West Summit Neighborhood Advisory Committee, submitted a leter and spoke in opposition. She said they commissioned Smith and Partners to do a Partnership Feasibility Study in 2010. One part of this study suggests that “an increase to over 30% non-homesteads would generally be considered a “tipping point" for a single family residential neighborhood that could lead to disinvestments and deciine.” She said this neighborhood is at 51% for non-homestead properties. She said that if student rentals are in these same areas, the neighborhood deciines faster. She noted that the University of Minnesota had the same dilemma about 50 years ago. She said back then there were vibrant ‘communities and activities, and today itis beyond the tipping point filed with buildings jut like this proposed site plan. Dean Nelson, 2000 Marshall Ave., submitted a letter and spoke in opposition. He said there are technical problems with this project that violate RM2 zoning. He said the underground parking garage needs to be completely underground and noted that finding 2 ofthe staff report states that the first floor is above the established grade of 899.7. He said because of ths they should be subject to setbacks and should diminish their density bonus. He said the building has no options for variances. He said the height of the building is 50° and the 100-year high water mark was set at 891.14 and the lowest floor in the garage is proposed at 891. He said City staff stated the lowest floor needs to be 1” above the 100-year high water mark, which makes this building taller. He added the parking on the side yard creates a legal nuisance. Sally Lawrence, 1980 Iglehart Ave., submitted a letter and spoke in opposition. She said she concurs with everyone else in opposition that this building does not ft in the neighborhood. She said the houses directly impacted by the construction are about 110 to 120 years old wil ‘experience damage from the vibrations of earth moving equipment and she asked what their recourse would be.82-0V-16-2015 Fed in Second Jul District Court ‘26/2018 3:02 eM Ramsey County, MN Zoning Committee Minutes Zoning File #17-206-385 Page & of 10 ‘The applicant's representative, Eric Galatz, 1472 Linden Ave., said they have relied on City staff to interpret the code for technical compliance and to meet requirements of the code and have met those requirements. He said that the application was submitted before the effective date of the moratorium and they relied on staff to make a determination as to whether the application was complete. He added that the law requires the zoning code to comply with the City’s ‘comprehensive plan and that they are in compliance with the comprehensive plan. Commissioner Reveal asked about the potential construction risk for surrounding properties. Mr. Galetz said that is not a zoning Issue, but in terms of constructions issues its rare to have damage to surrounding property. He added the law provides remedies and restrictions against undermining other people's foundations and there is insurance for that. ‘Commissioner Reveal asked ifthe parking is above or below grade. Paul Holmes said that the garage floor elevation ranges from 892.8 at entry to 891.0 at its lowest point. The 100-year high water mark is 891.14, so at the lowest point of the garage they are below the 100-year high water mark. He said there will be a waterproof, concrete wall to protect this. He added that the entry to the garage is 1.11" above the 100-year high water mark. He noted that the first floor elevation is at 902.0, but it will be sloped at 1.5% to the east to meet the existing grade of 901.0,, so the entire parking garage will be below grade and not visible, He said the height of the building will be 10-13" higher than the existing buildings. Chair Edgerton asked if there willbe a drain in the parking garage. Mr. Holmes said there is a fioor drain. Eric Meyer, with Larson Engineering, 3524 Labore Rd., White Bear Lake said the floor drains in the garage are required to go into a sanitary sewer, as well as the drains in the elevator pit, because of the potential contamination from vehicles. He added that the storm ‘sewer wil take the runoff from the roof and yard only. In response to a question by Commissioner Lindeke, Mr. Meyer said that the client asked them to include balconies as an amenity to the residents. He said that there was concern expressed at the first meeting with the Union Park District Council, so there will only be four balconies on the Moore Street side of the building to reduce noise to the neighbors. Mr. Schwartzman said he stands by his intial comments and that this will be a great building and will serve a much-needed purpose in the area, but acknowledged that the proposal is different. He added that they hope to do additional projects like this in the future to satisfy the demand in the area, ‘The public hearing was closed. Commissioner DeJoy said this is a site plan review and we are looking at whether its meets the requirements of the zoning code. She asked staff to address challenges associated with some cf the findings. Chair Edgerton agreed that because this isa site plan review, we have to determine ifthe proposal is consistent with the Zoning Code. In response to a question by Chair Edgerton, Ms. Anderson said @ submitted site plan can be a complete application, which is not the same as an approved site plan. She said site plan review applications are reviewed for the required information, followed by a staff meeting for variousornare Fed in Second Judicial Distt Court ‘72672018 3-02 PM Ramsey County, MN Zoning Committee Minutes Zoning File #17-206-385 Page 9 of 10 City departments to weigh in on the site plan. She said ifitis a staff reviewed project we would issue a conditional approval of the plan, which does not mean that the plan has met all of the conditions for approval, but it outlines everything they need to do in order to meet zoning requirements and requirements of all City Departments involved. All departments are required to sign off on the site plan for an approval. in response to a question by Commission Devoy, Ms. Anderson said itis not unusual for a site plan to be submitted and go through a revision or a number of revisions before itis approved. In response to a question by Chair Edgerton, Ms. Anderson said that this site plan review application was deemed to be a complete submittal Upon original receipt. It included the application, fee, the required civil documentation including the survey, existing conditions, demolition plan, utility plan, storm water plan, architectural elevations, and landscape plan Ms. Anderson said that she relies on the project architect and civil engineer to show her that lot coverage is met. She said that they have shown that the parking structure is compietely underground. She said that they look at lot coverage based on above ground structure as it relates to the lot area. The lot area is both the parcel and haif of the alley and based on the above ground portion of the building, including the balconies, to determine the lot coverage percentage. She noted that these calculations are shown on page 2 of the site plan ‘She added that the building height is measured from the existing established grade and the new grade, but not the below grade items, to determine lot coverage. Chair Edgerton said the ‘argument in public testimony was that the top of the underground parking is above the existing grade, but the determination was that it is underground parking because itis below proposed grade’ Ms. Anderson said we measure lot coverage based on what is above grade and none of the below grade parking is exposed and there was a conversation with the architect thet if a portion of the below grade parking were to become exposed, then that would be subject to lot coverage. She said there are diferent calculations in RM2 zoning districts for the requirements of height, density, lot coverage, and parking, even though they are all related ‘Commissioner Lindeke asked how existing established grade is calculated. Chair Edgerton said it is a weighted average based on length and elevation. Commissioner Reveal asked If that calculation is used for height, Ms. Anderson said that was correct and itis measured from the established grade to the top of the roof deck, where a building is located on sloping terrain and the height may be measured from the average ground level of the grade of the building wall. Due to the differences in grade, they applied a weighted average to the existing established grade to calculate the height. Chair Edgerton commented that various departments have reviewed this material and we rely Con staff to review this material in detail as to whether it meets the City's zoning code and is consistent with the comprehensive plan, He said part of the zoning code comes out of the comprehensive plan, and meeting zoning code requirements reflects consistency with the comprehensive plan. ‘Commissioner Reveal moved approval of the new construction with conditions. Commissioner Eckman seconded the motion. Commissioner Reveal said that these decisions are really tough and change is hard in any ‘community when there are goals ranging from increasing rental housing stock to historic preservation, She said she would be more comfortable with this project ithe study wasSRV 182018 Fe in Second Jus Distict Cout 52812018 5:02 PM Ramsey County MN Zoning Committee Minutes Zoning File #17-206-385 Page 10 of 10, complete and the historic inventory was done. She said we are constantly confronted with projects that do not request a variance, conditional use permit, nonconforming use permit, and no change in the zoning code and have no rational basis to change it unless we have independent information that enters the record in a legal way that challenges a finding in this record and said she saw no such evidence in this case that this is not allowable. She said she is sympathetic to the neighbors and hopes the developer continues to work on this. Commissioner DeJoy discussed whether the new development blends with the character of the neighborhood and how to consider that for a site plan review with no variance involved, Commissioner Lindeke said that if this was a conditional use permit or variance case this would be a different conversation, but since it is a site plan review he feels limited, even though he empathizes with many of things said in public testimony. It is clear to support the motion. Commissioner Eckman asked if we could consider the time of day that we hold the public hearing to allow more people to speak who may not be able to take off of work and to allow for more diversity. Commissioner Reveal said that there has been discussion about this and there is no ideal meeting time, There is also written testimony and a role for community councils. ‘The motion passed by a vote of 5-0-0. Adopted Yeas-5 Nays-O — Abstained-0 ‘Submitted by: Appfoyed, f Tia Anderson al Edger Recording Secretary City Planner Chair