09-13-2004 Council Packet - Laserfiche WebLink

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Mayor and City Council Page 2 September 8,2004 Mr. Render and his wife Denise have been working with the architectural firm of TEA2 Architects located in Minneapolis, Minnesota for the last 15 months designing a home for Mr. Render’s family. Over that 15-raonth period of time tlie architects for Mr. and Mrs. Render worked with the Uniform Building Code and the zoning and other regulations of the City to insure that the plans met all requirements of the law. In ±c process of developing the oesign for the home, Mr. and Mrs. Render spent approximately $100,000.00 in architectural fees and costs. A few weeks ago when Mr. Render’s builder, Steiner-Koppelman, applied for a building permit from the City, they were told that everything was in order except that there was a “problem ” with the height of the house. Mr. Render, his builder and architect met with City officials and for the first time were advised that there was a “policy ” which contravened City law on building height. The City ’s reliance on this “policy,” rather than the lawr of the City raises some interesting questions which are outlined below. 1. Issuance of a building permit is not a discretionary act. In general, if a person has complied with all of the laws that relate to development of a site, such as the building code, the zoning code and so forth, he or she is entitled to issuance of a building peimit. It is refen ed to as a “ministerial act ” by the City. Applicants for permits are entitled to rely on the law in preparation of their building plans and not be refused based on a discretionary policy of the City*. 2. The requested permit complies with Orono Zoning Code. The zoning code defines the highest elevation to which one measures from, among other things, as the “average height of the highest hipped loof.” Section 78-1, Orono Code. However, the “policy ” provides a different upper measuring point when the highest living space in the building is a half story. This policy contravenes existing law in the City of Orono. People are entitled to rely on the law in preparation of tlieir building plans — not on tmdisclosed policy. The Renders' proposed house complies with City Code - the law for purposes of this matter. In addition, the zoning code provision applicable to Mr. Render’s property, which 1 believe is Section 78-305 of the City Code, provides that the heigiit of any building on his * Widi respect to zoning marsas, in Chase v. Citv of Minneapolis. 401 N.W.2d408,413 (MInnApp. 1987) the court held that a city is not afforded discretion in reviewing a pctmiited use application “became approval of a project complying with the zoning code 'follows as a matter of right ” With respect to the issuance of building pomits, the courts have held that a city has no discretion to refhse to issue a peimit if the application conforms to alt requirements of the city code because issuance is a ministerial act. Snvdcr v. Citv of MiniiMnalis. 422 N.W. 2d 747 (A?p. 1988); afbn ’d 441 N.W. 2d 781 (1989) and State v. LiadouisL 214 M.W. 260 (Minn. 1927)