01-046-O

ORDINANCE NO. __________

AN ORDINANCE GRANTING A CONCURRENT USE PERMIT TO A AND L DEVELOPMENT, INC., PIZZA LUCÉ, DULUTH TECHNOLOGY VILLAGE, 11 EAST SUPERIOR STREET FOR AWNINGS INTO AND OVER THE EASEMENT FOR THE RIGHT-OF-WAY OF EAST SUPERIOR 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 A and L Development, Inc., Pizza Lucé, Duluth Technology Village, their successors and interests, referred to herein as the permittee, to occupy, erect and maintain fixed awnings in that part of East Superior Street adjacent to 11 East Superior Street, as shown on city council Public Document No. ___, as the same was dedicated to the use of the public and the plat of Duluth Proper First Division follows:
                west 1/2 of south 100 feet of Lot 1, East Superior Street, Duluth Proper First Division; southerly 99 feet of east 1/2 of Lot 1 and southerly 99 feet of Lot 2, East Superior Street; west 1/2 of Lot 5, East Superior Street, Duluth Proper First Division, as described in Public Document No. ____.

        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 permitee's last known address shall be sufficient notice of termination.

        Section 4.     That upon the giving of the notice of termination as aforesaid, the permittee shall remove said fixed awning 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 agrees that such fixed awnings 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 East Superior Street and agrees that the city of Duluth shall not be liable for damage caused to such fixed awnings while the city is engaged in making repairs to public utilities provided that the city exercises reasonable care to avoid such damage and agrees 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 fixed awnings in said East Superior Street.

        Section 6.     That this ordinance shall take effect and be in force 30 days from and after its passage and publication.



STATEMENT OF PURPOSE:  This ordinance provides for the installation of two, 21 feet wide by 48-60 inch tall by 48 inch deep, fixed frame awnings which will project from the front wall of the Duluth Technology Village over the Superior Street sidewalk. These awnings are similar to the awning which has been installed on the corner of the building (which is behind the property line) and advertises "Pizza Lucé."

The redevelopment of this half block, from Superior Street to First Alley from Lake Avenue to First Avenue East, was the subject of litigation relating to architectural design issues.

The property is within an "historic district, and a historical resource, and therefore, a 'natural resource' " as determined by the district court, Judge Terry Hollenback.

The design of the Technology Village "reasonably conforms to the theme, architecture and general characteristics of that portion of the historic district in which is will be located" in this area of East Superior Street. The building reflects the facades of two buildings that were removed from the site as well as a recreation of a building that once occupied the Lake Avenue corner.

The planning commission unanimously recommended denial of this concurrent use permit at its regular meeting on October 24, 2001. In making their recommendation, the commission cited the following findings:
        (a)     The awning will alter the symmetrical architecture of the Superior Street facade;
        (b)     On a seasonal basis, the awnings will create a sidewalk maintenance and safety issue, i.e., ice on the drip line of the awning;
        (c)     The "character of the historic district" should be followed. Retractable awnings would be more in keeping with the historic character of the Old Downtown "District" and the architecture of the building.

Date Filed: September 21, 2001
Action Deadline: January 18, 2002