01-042-O REPLACEMENT

ORDINANCE NO. __________

AN ORDINANCE GRANTING A CONCURRENT USE PERMIT TO CARLA BLUMBERG FOR A DECK IN THE RIGHT-OF-WAY OF 19TH AVENUE EAST LOCATED ADJACENT TO 1902 EAST EIGHTH STREET.
BY COUNCILOR STENBERG:

The city of Duluth does ordain:

        Section 1.     Under the authority of Section 100 of the 1912 Home Rule Charter of the City of Duluth, as amended, and subject to the conditions, limitations, and restrictions hereinafter set forth, permission is hereby granted to Carla Blumberg, her successors and interests, referred to herein as the permittee, to occupy, erect, and maintain a series of decks in that part of Nineteenth Avenue East as the same was dedicated to the use of the public and the plat of Highland Park Addition to Duluth, on file, and of record in the office of the registrar of deeds in and for the St. Louis County, Minnesota, described as follows:
                The easterly ten feet of 19th Avenue East adjacent to Lot 1, Block 25, Highland Park Addition to Duluth.

        Section 2.     That before this ordinance shall be effective for any purpose whatsoever, the aforesaid permittee shall file with the city clerk a duly executed and acknowledged written acceptance of the terms of this ordinance, and shall agree to pay the cost of publishing this ordinance and a recording of a certified copy thereof at the registrar of titles of St. Louis County, Minnesota.

        Section 3.     That said permit granted under this ordinance may be terminated at any time when and if the city of Duluth determines to use the area occupied by said permittee for any purpose in accordance with the duly dedicated public easement or other lawful use. Giving the permittee six months' written notice by resolution of the council of the city of Duluth to the last known address of the permittee shall be sufficient notice of termination.

        Section 4.     That upon the giving of the notice of termination as aforesaid, the permittee shall remove said decking and all fixtures and pertinencies of every kind whatsoever attached thereto from the tract of land described above within said six months, all at the expense and cost of the permittee, and without right on the part of the permittee to claim from the city of Duluth, or any of its officers, agents or servants, any compensation, reimbursement for damages of any kind whatsoever.

        Section 5.     That by the acceptance of the terms of this ordinance as aforesaid, the permittee hereby agrees to save harmless and defend and indemnify the city of Duluth against any claims or demand which may arise against the city of Duluth by reason of any act or omission of the permittee, and agree that such decking shall be so constructed and at all times maintained so as in no way to interfere with or damage any sewer, water mains, gas mains, pipes, conduits or other public utilities now or to be hereinafter located in any part of said Nineteenth Avenue East and agree that the city of Duluth shall not be liable for damage caused to such decking while the city is engaged in making repairs to public utilities provided that the city exercises reasonable care to avoid such damage, and agree to pay to the city of Duluth all extra costs of installation of any such sewers, gas mains, water mains, pipes, conduits or other public utilities made necessary by the presence of such in said Nineteenth Avenue East.

        Section 6.     That the permittee shall further observe the following conditions:
                            (a)     All required building permits shall be obtained;
                            (b)     The city engineering department shall approve, in writing, all building permits.

        Section 7.     That this ordinance shall not be valid if the above cited permits in Section 6 are not issued and improvements completed within 12 months from the effective date of this ordinance.

        Section 8.     The term of this permit shall expire with the sale of the property by this permittee and said decking and all fixtures and pertinencies of every kind whatsoever attached thereto shall be removed from the tract of land described above within sixty days, unless the new property owner applies for and receives a replacement ordinance within said sixty days.

        Section 9.     That this ordinance shall take effect and be in force 30 days from and after its passage and publication.



STATEMENT OF PURPOSE:  This ordinance grants a concurrent use permit to Carla Blumberg to allow for the establishment of a deck or patio with seating between the former Taran's Market building, at 1902 East Eighth Street and the sidewalk on the east side of 19th Avenue East.

The city planning commission unanimously recommended denial of this permit at its regular meeting on September 11, 2001. The planning commission is recommending denial of Blumberg's request for a concurrent use permit on the grounds and reasons expressed by the commission during their deliberations:
        (a)     The applicant was unable to provide specific information on the intended private use of the public easement. She did advise the commission that she did not intend to operate a business at the location and had not secured any tenants. Without more specific information the Commission is unable to determine the following:
                (1)     The extent to which such use would conflict or interfere with the public use of that portion of the easement physically being used or occupied by the public.
                (2)     Whether the use would conflict with existing utilities.
                (3)     How the outdoor use would affect the quiet enjoyment of the surrounding neighborhood.

However, on October 22, 2001, the planning staff met with a committee of the planning commission and Ms. Blumberg on November 16, 2001. The purpose of the committee meeting was to discuss possible terms and conditions under which the Planning Commission would support approval of Ord. 01-042.

This replacement ordinance now provides a new section 8 which a commission committee feels addresses the commissions concern that the current owners intended use of the subject deck would be supported, but that a new owner may not be as well intended. The new condition provides for a public forum for any future change in use.

Application Received: August 2, 2001
Action Deadline: November 31, 2001