Working Session
Mayor and City Council Work Session
November 2, 2005 – 5:00 p.m.
Council Chambers
Council Members Present:
Bob Brooks, Doug Christensen (joined meeting in progress), Hal Gershman, Eliot Glassheim, Gerald Hamerlik, Dorette Kerian, Curt Kreun.
Council Members Absent:
None.
Others Present:
Richard Duquette, Howard Swanson, Brad Gengler, Charles Durrenburger, Bev Collings, Al Grasser, K. J. Kjelstrom, Pete O’Neill, Kevin Dean, approximately 30 citizens.
Gershman called the meeting to order at 5:00 p.m.
1) Ordinance Review
a) Parking Ordinances Wrap-Up.
Gershman stated these two ordinances were discussed last week and they are back on the agenda just to finalize the consensus on the changes to the ordinances. The group discussed the proposed changes to section 8-0801 and consensus was to delete the reference to side yard.
(Christensen arrived.)
The group discussed whether it was necessary to define parking space so as to avoid any confusion or future problems. Swanson advised against trying to add this definition here, as there are other sections that deal with similar items.
Hamerlik inquired why some of the fines show a different amount depending on the time of year and that was not the case for the new yard parking fines. Swanson explained that the other fines pertain to on-street and are a concern for snow removal and that is why they are more severe during that time of the year versus the off-street is not effected by that.
Duquette inquired if there were any necessary parts of this second proposed ordinance that needed to go forward at this time to get the enforcement started. Howard stated that section 18-0302 needs to be implemented in order for 8-0801 changes to be enforced.
b) Rezoning R2 to R1.
Duquette distributed two maps – one showing the approximate area that the petition came from, and a second showing an expanded area that also includes other nearby areas that have had similar problems.
Gershman stated that as he understood it, if a change to R1 is made in this area, existing properties could continue with the same use and even if sold could still be nonconforming. Swanson stated that was correct, as long as there was continuous nonconforming use the property could remain nonconforming.
Gershman stated that he had gotten some questions after the last meeting in regards to the effect that being nonconforming could have in insurance rates. Swanson responded that he has not seen liability insurance rates increase due to a property being in nonconformance. He continued that there may be an affect in that if the structure was more than 50% damaged, you would not be able to rebuild in a nonconforming state and could not get replacement insurance that would give you coverage to rebuild in nonconforming, but only to single family. He stated that there may be some effect on title insurance, but would only be on the properties in this area, not city-wide effect.
Kerian asked how many R2 areas there were in the City and if there may be other areas that would come in if this passes and ask for the same treatment, and to Swanson she inquired whether there was any guidance on how to define the area to be rezoned. Swanson responded that the Council should just identify the area that they want and any changes in zoning will only apply to that area and if there are other R2 in other areas of the City they stay the same.
Brooks asked for clarification on the area as there is a lot of R2 usage. He also commented that by changing the zoning back to R1 we would preserve those properties that are R1 today would stay R1 use tomorrow.
Hamerlik commented that in the last couple of days he has had several people contact him in regards to this matter, as since an expanded area has been under consideration some in those areas have not really kept up with these changes and just found out they could be affected. The group reviewed the original area that had been discussed as well as the expanded area, which has an easterly boundary of North 20th Street, a west boundary of Columbia Road, a north boundary of 10th Avenue North, and a south boundary o 1st Avenue North between 20th Street North and 23rd Street North, the alley between 2nd Avenue North and University Avenue between 23rd Street North and 25th Street North and the alley between University Avenue and 4th Avenue North between 25th Street North and Columbia Road.
Kreun commented that there may also be some effect on these properties if rezoned as discussed last week in regard to remodeling and inquired about any refinancing restrictions. He also inquired if there were any criteria that should be laid down in case another similar area of town comes in and asks for the same rezoning. Swanson stated that there is no insurance effect that he is aware of, but there is a stipulation as he stated earlier in regard to replacement value if you have a nonconforming duplex that is destroyed, can only get replacement to build single family. He reiterated that this is under consideration for a specific geographic area and has no affect or precedent for other areas of town that may come in and request rezoning. He commented that in regards to mortgage companies that write a mortgage with the intent to resell on the secondary market there may be some restriction if the property is a nonconforming property and they may not want to handle it. Swanson stated that this is absolutely not considered a taking. He continued that what happens when a property is nonconforming is that there is an assumption that at some time in the future it will come into conformance and if is not used in a nonconforming state for 18 months then it is considered in compliance for R1 use and con not revert back to being nonconforming. He continued that if the rezoning passes there could be no future construction or remodeling improvements that would lead to a property being in further nonconformance.
Christensen stated that the problem that residents are articulating is that they are losing the neighborhood in which they live and that a rezoning seems to work toward remedying this problem. He continued that if there are other areas of town that feel the same, they could also come in and ask to be rezoned and future councils would deal with that. He commented that the concern on insurance and that can’t get replacement coverage is not accurate, as they can still rebuild, just has to be conforming to the new zoning and that if only damaged less than 50% then could rebuild as nonconforming as long as get it done within 18 months.
Kerian commented that this matter has been under discussion for a long period of time and that it is good to get answers. She continued that even though a rezoning may not solve all the problems that it shows that the City is trying to do something to help alleviate the concerns in the neighborhood.
Swanson stated that he wanted to share some of the questions that have come into his office. They are : if a property is rezoned all rentals are prohibited – this is not true; if rezoning passes the number of tenants must be reduced – this is not true; would rezoning prevent the purchase of property for use as a rental – No, it would not. He explained that in an R1 area, a property can be rented to a family, which is defined in code as any # of related parties or not more than 4 unrelated parties. The main difference is that in R2 you can have up to 2 units in a single family home, which would allow you to have up to 4 unrelated parties in each unit for a total of 8 in the property.
Kreun inquired with a change from R2 to R1 if there was still the flexibility for the owner to offset costs of owning the property. Christensen commented that they can still rent in R1 and the only change is that it decreases the number of individuals that could rent at some time in the future. Swanson responded that if a property owner is currently renting their basement or some sleeping rooms, they could continue to do that it would just be a nonconforming use. He acknowledged that some buy a property with knowledge that they will need the basement apartment to help pay the cost of owning the property and they would not be affected.
Glasshiem stated that he likes this solution as it seems to be a minor harm to rentals. He inquired whether this was viewed as an actual rezoning or an overlay. Swanson stated that as proposed it is an outright zoning change.
Gershman asked if there was consensus to move ahead with a change from R1 to R2. The group seemed in favor. He then asked for consensus on the size of the district. The group discussed that there is another area very close to the proposed area that has expressed some of the same concerns and that is the Boyd Drive area. They continued to discuss that this could be a slippery slope in that soon all areas that are currently R2 could come and request the change to R1.
Glassheim proposed that staff be given a week to come up with recommended boundaries and areas so could take care of it all at one shot. The group expressed concern with adding in areas that had not asked to be included and as such may not have come to participate in these discussions since they were not effected. Hamerlik commented that he received an e-mail that stated if this goes forward would start a petition to say “no” to a change.
Kerian inquired what information staff took into account in coming up with the maps that were distributed today. Duquette stated that they looked at calls for loud parties, etc. and tried to keep west of North 20th Street which is typically viewed as the University area. He continued that they also tried to stay close to the area from which the petitions came and that if Council was more comfortable only looking at that area to start with and considering the expanded area at a later date. Gershman responded that the concern is that including more than the initial petition area at this time may slow the process and block getting relief as quickly as possible for the petitioners. Kerian responded that staff also needs direction as to what should come forward to Council for action and agreed that maybe more discussion is needed on the expanded area.
Christensen stated that the smaller map came about as a result of his request to take the petitions and draw an area so that it could be more easy to see what area was being talked about. He commented that it would make sense to add to that original area, at the least, the properties just to the south of University Avenue from the park. He continued that he would say to eliminate the concern of creep to adopt the larger area as recommended by staff and he would also be in favor of including the Boyd Drive area and not wait for them to bring in a new petition from their area, but just get it done. Gerhsman stated that he also supports going with the larger area.
Kreun commented that the only problem that he sees is that no matter what the boundary is set at he sees the problem just getting relocated to just outside the boundaries. Gerhsman responded that you can rent in R1, just not to as many and eventually would change from 6 to 8 per house to 4. Kreun responded that was the conversation that they had the last meeting, in that some have structured their mortgage to where they need 8 tenants to meet the mortgage payment, or they will have to double the rent to drop to 4 and then students can’t afford it any way.
Brooks commented that he would look at the Boyd Drive area and make some contacts there and come back with thoughts at a later time on this area and that he senses the comments will be the same as in the other area that is being discussed and if that’s the case can bring to staff and have them move it forward without having to come back for same discussion here. Christesen inquired how far they would be willing to move the boundary and if keep adding then could just as well say do all then won’t be anywhere to move the problem to. He commented that it appears clear from the comments that are coming out that a change is needed and that he has found nothing to say why this was ever made R2 to begin with.
Gershman restated that it seems that the consensus is to proceed with the rezoning from R2 to R1 and that the boundary is the main issue still for discussion. Kerian suggested that staff bring one forward and could be amended at Council if discussion and more information gathering seemed to warrant a change. Swanson cautioned that there is a process set out in state code for rezoning and that any changes would need to come through Planning & Zoning Commission and there are very specific ways to handle the notice and publication for this to go forward. Christensen commented that he would be in favor of seeing the expanded area go forward and then all would get notice and could comment at P&Z and then if Council not comfortable once it gets there could amend it larger or smaller. He added that perhaps Boyd area could come forward at same time, but as a separate item on agenda and then residents would get separate notice and if needed could do a work session on that item as well if needed.
Gerhsman inquired that if the rationale for not including Boyd is due to them not participating in the earlier petition, then that should also be the case for the expanded area and could seem to lean toward only coming forward with the petitioners area.
Gengler stated that rezoning is a 60 day cycle and starts in P&Z, and comes to COW and Council twice so is avenue for changes as process goes forward. Swanson stated that zoning changes can be initiated by staff, Council or petition. Glassheim suggested that perhaps send the bigger area and then add or subtract areas as go, but get the process started. Swanson stated that the area could be amended by petition, Planning & Zoning Commission, City Council or the Planning Department. Gengler stated that there is also a protest procedure so that needs to be considered in the area design. He explained that if 20% of the property owners protest, then it requires a ¾ majority of the Council to approve the rezoning.
Hamerlik commented that he also wanted to make it clear that the area zoned UD is not included in any of these discussions. The UD area is roughly south of the Bronson Property to the railroad tracks.
Kerian suggested that she would like to see 2 or 3 options sent to Planning & Zoning Commission for consideration, maybe one for area of original petitioners, one with expanded area, and one that includes any other similar areas.
Hamerlik asked if since procedurally this has been initially considered at P&Z and rejected, does it need to vote to reconsider. Collings stated that the earlier request was an informal petition and that there was not a formal rezoning request that was heard at P&Z.
Howard recommended that consensus be given to the Planning Department and let them get it on the P&Z agenda to start the process and then could save at least two weeks off the schedule. Brooks suggested going ahead without Boyd Drive right now and then can come with that later if needed. Christensen concurred.
Chris Braden, UND Student Senate, stated that the 13,000 strong students, as well as the full University Senate are strongly opposed to any rezoning effort in the University area and have been talking about trying to petition to stop any rezoning effort.
Kim Novak, 2103 9th Avenue North, stated she wanted to explain that the area the petitions were circulated based on discussions with the planning department who advised them to make their circulation area as small as possible to get better chance for relief. She continued that they did have people from east of Valley Middle School and from the Boyd Drive area that were very interested in joining, but they were not included based on the advice that the circulators received. She stated that they had been told to see how the process went with this small area and then come back in with Bord and other side of Valley and would go better.
c) Section 18-0204 relating to the definition of a family.
Gershman stated that the change proposed in this ordinance is to amend the definition of family from the current four unrelated persons to no more than three unrelated persons. The group discussed whether this change would still be necessary or if the same was being accomplished by rezoning in the area.
Hamerlik commented that he was still in favor of approving this change, as it results in a decrease in the number of individuals that can be in future rentals. Gershman commented that he is not in favor of this change, as it will lead to increased rents for the students and may become a problem in the decrease of income to property owners that have a mortgage based on a certain level of income that we are now affecting. Hamerlik commented that this could be taken care of if the change were put in place to not affect those that currently have four, but only for those that want to have new rentals. He continued that he knows of some investors that have paid as much as $20,000 over the asking price for a property with the intent to turn it into rental knowing that he can put a number of students in there and get a large sum for rent. Hamerlik stated that this has led to an increase in valuations in the neighborhood, increased taxes, and has eaten up some properties that otherwise would have been good affordable homes for people.
Glassheim inquired about the grandfathering as he thought at the last meeting it was discussed that this was not possible. Swanson stated that in his review he can find no practical way to implement a grandfathering, as there is currently no database of information that could be relied on, as we do not ask people if they are related, etc. when they complete a lease and it would be staff intensive to try and gather all this information and even more so to maintain it. He stated that the only way this would work was if you could pick a date certain and then had all that information so that you could know who had leases with four persons before and who did not. He also questioned whether there would be any reasonable way to enforce this with any kind of precision. Hamerlik stated that he could agree with these problems, but still would support going to the three persons as it would help reduce the number of individuals in the rentals in the area which leads to less traffic, less parking concern, etc.
Christensen commented that he still has a concern with making rules that affect the whole city based on problems in this one area. He continued that perhaps the rationale for doing this city-wide should be discussed and if there is none then look at a way to apply it only in this area. Kerian commented that the main reason to reduce the number of individuals in a unit is to address problems like parking and parties and she also has some skepticism on if we can’t enforce the current four, whether we would be able to enforce a decrease to 3 or 2. She stated that if there is no way to grandfather in the current rentals with four or more, then perhaps the rezoning will have the same affect over time and is not as strongly supportive of this change now.
Kreun stated that there is increased enforcement that will be in place with the CSO working in the neighborhood and the proposed licensing ordinance that is yet to be discussed. He agreed that it would be extremely difficult to define a grandfathering ordinance and expressed a concern from making changes that would affect those that may have bought a property and have mortgage set up under the current regulations. He continued that there are people that in order to get into a home need to rent out the basement in order to be able to make their monthly mortgage payment and that is there way of getting into an affordable home and does not agree with making changes that will hurt these individuals. Kreun stated that he would like to wait on this and see what effect the CSO can bring in the enforcement area and then work with other options on the Certificate of Occupancy to try and curb some of the problems before making changes that affect the entire city.
Gershman stated for the record that consensus of the group seems to be to not approve the change in this ordinance.
d) Article 6 Chapter XXI relating to residential rental license.
Duquette stated that this ordinance came from the subcommittee meetings that have been held and that he is looking for consensus from the group on if this is something they would like to pursue at this time or if they would like to hold on this.
Kerian commented that some of the items included in this ordinance are needed and if don’t want to go to the licensing then need to make changes so covered in the certificate of occupancy. Some of this information is who owns the property and who the renters are that can be used in the enforcement aspect. She added that the license also needs to be made something of value and have an appropriate budget set up in the enforcement area so that it gets done.
Gershman pointed out that the meeting will need to adjourn within about 5 minutes to allow for the next committee to get set up for their meeting at 7:00p.m. Hamerlik commented that there was a tentative continued discussion time for this item set aside as noon on Thursday, November 3, however that does not appear to be a good time, not only for Council Members, but also for citizens that want to be present for the discussion and suggested that perhaps have this item at a 5:00 or 5:30 p.m. possibly early next week. Gershman stated that this would be on for discussion next Wednesday at 5:00 p.m.
Christensen stated that for discussion he would also propose that to give the ordinances teeth to dissuade violation, we propose that if the Certificate of Occupancy is revoked or suspended, that it be for a time longer than 18 months. He continued that this would then effect a change from a nonconforming use at that property and they would be forced to revert to R1 usage and may help with problem properties. He added that this is for thought by the Council members and discussion can be held at a later date.
2) Other
Glassheim commented that when the parking rules had been discussed there was not a consensus on the part of the ordinance dealing with one parking space per bedroom. The group agreed to discuss this at the next meeting.
3) Adjourn.
Meeting adjourned at 6:50 p.m. There will be a Mayor Council Work Session next week, November 9, at 5:00 p.m. and to accommodate
Respectfully Submitted,
Sherie Lundmark
Admin Specialist Sr.