Planning Report

Date:	March 16, 1999

Case:	LP-353, NC-114 & VN-322

Subject:	Site Plan, Nonconforming Use Permit & Setback Variance

Applicant:	Greg Arnold - Dairy Queen on Old Highway 8

Request

To hold a public hearing and consider requests for a site plan review, nonconforming use permit and side street setback variance to install a drive-through window, and remodel and expand the existing Dairy Queen located at 409 Old Highway 8. The nonconforming use permit is requested due to the fact that the existing off-street parking area (green space) setback requirement is not met. A three (3) foot side yard street setback variance is requested in order to construct the drive-through window.

Findings

Section 8-010, Site Plan

Section 8-210, Variances

Section 8-410, Nonconforming Use s.

Section 11-010, Parking Standards

Site Characteristics

1.	Location:	409 Old Highway 8 NW

2.	Lot Size:	19,000 square feet

3.	Topography:	Flat

4.	Vegetation:	Some along the lot lines

5.	Sensitive Areas:	None

Site History

1.	Past Uses:	Dairy Queen

2.	Historical Significance:	Long time New Brighton business

Departmental Considerations

Community Development

1.	Existing Use:	Dairy Queen

2.	Proposed Use:	Dairy Queen with a drive-through window

3.	Surrounding Land Uses:

North:

South:

East:

West:

4.	Density/FAR:	Building area: 828 square feet

Allowed: 100% Proposed: 4% including canopy and building

5.	Building Setbacks:	Complies - With the exception of the 3 foot by 9 foot drive-
through window expansion on the north side of the building which is proposed to be set 37 feet back from the 4th Street NW right-of-way. A three (3) foot setback variance is being requested.

6.	Parking Setbacks (Front):	Required: 40 feet	Existing: 8 feet	Proposed: 16 feet

The applicant is expanding the parking setbacks to 16 feet. The existing setback is 8 feet. The expansion is proposed to address the nonconforming setback to the greatest extent possible.

(Side yard street)	Required: 40 feet	Existing: 0 feet	Proposed: 0 feet

The applicant is proposing to address this existing nonconformity by planting grass inside an existing cement island and creating two parking stalls. This grassy area will serve as a median between the drive-through window and cars exiting onto 4th street NW.

(Rear yard street)	Required: 5 feet	Proposed: 5 feet

7.	Stall Size:	Required: 9 x 18 feet / Proposed: 9 x 18 feet

8.	Parking Spaces Required:	Required: 1 stall per 65 square feet (828 square foot building minus 10%), therefore, 11 stalls are required.

Proposed: 12 Stalls

9.	Aisle Size (One-way):	Required: 14 feet / Existing: 19 feet

10.	Stacking Lanes:	Required: 6 spaces	Proposed: 6 spaces (however the last two (2) interfere with the off- street parking spaces)

Section 11-020.j. of the Zoning Ordinance requires commercial uses with drive-up facilities to provide 6 spaces per lane for stacking. The stacking lane must be at least 12 feet wide, and must be delineated so that the vehicles waiting in line will not interfere with the primary driving and parking facilities on the site.

While the applicant is proposing 6 spaces for stacking of cars waiting at the drive-through window, spaces 5-6 interfere with the existing parking spaces. If the line backs up this far, cars 5 and 6 virtually will cut off the customer parking stalls. Additionally, the 12-foot stacking land encroaches in the drive- aisle on the south side of the building.

Based upon the above provision, Section 11-020.j. of the Zoning Ordinance, there is not adequate room on the site to provide for a drive-through. Staff would be concerned that by granting approval of this request it may set a dangerous precedent for allowing similar requests for insufficient stacking space at other drive-through windows. The City of New Brighton contains many commercially zoned lots that are very small in size, that would also not provide adequate space for drive-aisle stacking. An example of such a lot is the existing Dairy Queen on Silver Lake Road.

If the Planning Commission and City Council are inclined to approve of this project, staff would suggest requiring the posting of a sign at the rear of the building (see attached site plan) that states "no stacking beyond this point". That way, cars waiting for the drive-through would have to wait in a designated parking stall and then proceed to the menu board. Policing this type of sign would prove to be very difficult, and would most likely have to be done by the employees of Dairy Queen.

11.	Total Drives:	The access to the site shall be off of Old Highway 8, and the exit shall be on to 4th Street NW.

12.	Concrete Curbing:	Per Section 11-020.b of the Zoning Ordinance, all off-street driving, loading and parking areas must be constructed with a concrete curb. The site contains perimeter curbing, and the applicant is proposing to modify the curbing patterns to accommodate the new landscaping and green areas.

13.	Parking Area Surface:	The entire parking area is paved.

14.	Impact on Surrounding Land Uses:	Minimal

15.	Comp Plan Designation:	Light Industrial

16.	Zoning:	I-1, Light Industrial - Commercial uses such as Dairy Queen are a permitted use within the I-1 District.

17.	Other Considerations:	None

Public Works

1.	Streets:	None

2.	Utilities:	Existing.

3.	Easements:	NA

4.	Grading/Drainage:	No changes are proposed

5.	Rice Creek Watershed District:	No permit required

6.	Environmental Concerns:	None

7.	MPCA:	NA

8.	Other Considerations:	None

Parks

1.	Proximity of Parks:	NA

2.	Proximity to Community Facilities:	NA

3.	Impact on Parks:	None

4.	Impact on Community Facilities:	None

5.	Other Considerations:	None

Forestry

1.	Tree Identification:	None

2.	Diseased Trees:	None

3.	Tree Preservation:	None

4.	Proposed Trees:	None

5.	Landscaping/Screening:	The City Forester reviewed the plans and found them to be generally acceptable. However, he did suggest replacing the Pigmy Crimson Barberry with five (5) Anthony Water Spirea as they would have a much better chance of survival in this location so close to the parking lot.

6.	Other Considerations:	None

Sanitation/housing

1.	Weeds:	None

2.	Garbage/Rubbish Enclosures:	An outside enclosed garbage area must be provided

3.	Seating Requirements:	N/A

4.	Kitchen Facilities:	The City's Health Inspector, as part of the proposed remodeling is requiring that a utility sink and dry storage space be added to the store. Therefore, the applicant is proposing to close off the inside of the store to customers and expand the facility eight (8) feet off the back. This will provide adequate area within the store for the needed kitchen facilities. With the completion of this project, customers will walk up to the store order from a window that faces Old Highway 8.

5.	Other Considerations:	None

Staff Comments

Nonconforming Use Permit

It is recognized that there are uses of land, structures, and combinations which were lawfully established and which do not now comply with all applicable portions of the City Code. The subject Dairy Queen site is an example of such a use. While it is recognized that such nonconforming uses may not be summarily terminated, it is the purpose of Section 8-410 to discourage their survival. Further, the Code requires, at a minimum, the reduction of the impact of the nonconforming use.

The nonconformities that exist on the subject site include the following:

a.	The existing setbacks for the parking area and drive aisles do not meet the required forty (40) foot front yard and side street yard setback. The existing setback for the front yard (Old Highway 8) is eight (8) feet and the side street yard (4th Street) is zero (0) feet.

The applicant is proposing to address the nonconformities as best he can. Green space is being added to both the front and side yard, the green space setback in the front yard (off Old Highway 8) is being doubled from eight (8) feet to sixteen (16) feet. Significant green space is being added in the northwest corner of the site, as demonstrated on the proposed site plan. Additionally, the applicant is suggesting adding a green space island to separate the proposed drive-through area from the existing parking stalls along 4th Street.

Variance

The applicant is requesting a three (3) foot variance to Section 6-060 of the Zoning Ordinance, which requires a 40-foot side street yard setback for structures The existing setback is 40 feet, however, the applicant is proposing to construct a 3' x 9' drive-through window on the north side of the building which encroaches three (3) feet into the required setback.

In considering an application for a variance, the City must make the following findings:

1.	An undue hardship would be brought upon the applicant, should the variance be denied.

2.	There are unique circumstances related to this site.

3.	The request is in conformance with the Comprehensive Plan.

4.	The variance shall not be detrimental to adjacent property or to the public as a whole.

The above findings may be made in this situation due to the small size of the site and store, coupled with the restrictive setback requirement of 40 feet off of both Old Highway 8 and 4th Street NW. Additionally, 4th Street NW is not a street that is maintained by the City. In effect it serves as a driveway to the surrounding businesses, and not a public street.

There is no location on this site that a drive-through window could be installed to meet the required setback, and other requirements such as parking space setbacks could also be met. The window could not be moved to the other side of the building, as the existing parking stalls would also have to be moved to the 4th Street side and they would not meet the setback requirements off of 4th Street.

The window could not be installed within the existing space of the store, due to its small size. As mentioned previously, the Health Inspector is requiring that a utility sink and dry storage space be added to the store. Therefore, the applicant is proposing to close off the inside of the store to customers and expand the facility eight (8) feet off the back.

However, as previously mentioned, with the addition of a drive-through window on this site, there is not adequate room for stacking space without interfering with the customer parking stalls and drive aisles.

Signage

No additional signage has been proposed at this time. All signage shall be required to meet the provisions of the Sign Ordinance Sections 9-010 through 9-180.

Recommendation (Alternatives)

Approval

Motion to waive the reading and adopt the attached resolution recommending approval of LP -353 and NC-114 subject to compliance with the following conditions:

1.	Off-street parking stalls must be striped with white or yellow painted lines, not less than four (4) inches wide.

2.	The landscaping plans shall be installed per the submitted plans, with the exception of replacing the Pigmy Crimson Barberry with five (5) Anthony Water Spirea.

3.	Installation of a utility sink and dry storage area per the regulations of the City's Health Inspector.

4.	A sign shall be posted at the rear of the building (see attached site plan for specific location) that states "no drive-through stacking beyond this point". Cars waiting for the drive-through would have to wait in a designated parking stall and then proceed to the menu board. Policing this sign shall be the responsibility of Dairy Queen.

5.	All signage shall be required to meet the provisions of the Sign Ordinance Sections 9-010 through 9-180.

Motion to waive the reading and adopt the attached resolution recommending approval of VN-322 subject to compliance with the following conditions:

1.	Off-street parking stalls must be striped with white or yellow painted lines, not less than four (4) inches wide.

2.	The landscaping plans shall be installed per the submitted plans, with the exception of replacing the Pigmy Crimson Barberry with five (5) Anthony Water Spirea.

3.	Installation of a utility sink and dry storage area per the regulations of the City's Health Inspector.

4.	A sign shall be posted at the rear of the building (see attached site plan for specific location) that states "no drive-through stacking beyond this point". Cars waiting for the drive-through would have to wait in a designated parking stall and then proceed to the menu board. Policing this sign shall be the responsibility of Dairy Queen.

5.	All signage shall be required to meet the provisions of the Sign Ordinance Sections 9-010 through 9-180.

Denial

Motion to waive the reading and adopt the attached resolution recommending denial of LP -353 and NC-114 as proposed, due to the fact that there is not adequate area on the site to provide for drive-through stacking space without interfering with customer parking and drive-aisles.

Motion to waive the reading and adopt the attached resolution recommending denial of VN-322 due to the fact that there is not adequate area on the site to provide for drive-
through stacking space without interfering with customer parking and drive-aisles.

Staff Recommendation

Because there is not adequate area on the site to provide for a drive-through window and its associated stacking lanes, Staff must recommend denial of the variance and nonconforming use permit. However, if the applicant were to eliminate the drive-through window, staff would recommend approval of the nonconforming use permit and site plan.

Cary K. Teague, City Planner