04-0128R

RESOLUTION REVERSING A DECISION OF THE BOARD OF ZONING APPEALS TO DENY THE APPEAL OF THE DECISION OF THE BUILDING INSPECTOR WHICH DENIED THE CERTIFICATE OF OCCUPANCY FOR THE USE OF PROPERTY LOCATED AT 24 EAST WILLOW STREET FOR PRIVATE COMMERCIAL PURPOSES (JOHN K. BAKER, PAUL T. LARSON AND JAMES V. ERLEMEIER, BY HANFT FRIDE, PA).

BY COUNCILOR GILBERT:

WHEREAS, John K. Baker, Paul T. Larson and James V. Erlemeier appealed to the board of zoning appeals the decision of the building inspector to deny a certificate of occupancy for the use of property for private commercial purposes, located at 24 East Willow Street and legally described as the easterly 125 feet of Lot 8, Block 3, Central Acres; and

WHEREAS, the board of zoning appeals had jurisdiction to hear appeals of the building official's decision pursuant to Section 50-47(a) of the Duluth City Code; and

WHEREAS, the board of zoning appeals denied the appeal upon the following grounds and reasons:
(a) The property is located in a single-family residential zoning district based upon the provisions of the Section 50-47(a) of the Code and the proposed commercial use is not a permitted use in such zone;
(b) The property was previously owned by St. Louis County and used as a government garage pursuant to a special use permit. The proposed private commercial use is not an allowable use pursuant to such special use permit;
(c) The proposed private commercial use constitutes a request for a use variance which is prohibited by the Municipal Planning Act and the board of zoning appeals has no authority to authorize use variances under Section 50-47 of the Code or M.S.A. 462.357; and

WHEREAS, John K. Baker, Paul T. Larson and James V. Erlemeier have appealed the aforesaid decision to the Duluth City Council pursuant to Section 50-49 of the Duluth City Code; and

WHEREAS, the city council has considered this appeal and hereby disagrees with the findings made by the board of zoning appeals and has concluded that the allowance of private commercial use in a residential single-family zoning district can be made in this case and that a certificate of occupancy may be issued;

NOW, THEREFORE, BE IT RESOLVED, that the city council of Duluth finds the following:
The use of the property as a private commercial use is an allowed use in an R-1 zone because _________.

FURTHER RESOLVED, that the city council of Duluth reverses the board of zoning appeals' decision of January 27, 2004, and the appeal is granted.

STATEMENT OF PURPOSE:  This resolution reverses the decision of the board of zoning appeals to uphold the decision of the building inspector denying a certificate of occupancy for the use of property for private commercial purposes in an single-family zoning district on property located at 24 East Willow Street. In approving this resolution the city council is required to provide the necessary factual findings upon which it relies to support its decision. The failure to make findings weakens the ability to defend the council's action if its decision is subject to judicial challenge.