TOWER— The city council here agreed Monday to have the city’s attorney take a second look at a land use permit issued by the city’s volunteer zoning administrator to Superior Fuel, to see whether it complies with the city’s zoning ordinance. An initial review by the Timberjay suggests that may be a complicated endeavor as a result of the confusing, unclear, and often contradictory nature of the city’s zoning ordinances.
Council member Kevin Norby questioned the permit, which grants Superior Fuel the right to install a 30,000-gallon propane tank in a residential zone at the intersection of Lake Ave. and Hoodoo Point Road. It’s the longtime location of several above-ground oil storage tanks maintained by Wilderness Fuel, but the business was recently sold to Superior Fuel, which hopes to convert the site to a propane storage and loading facility to serve its distribution trucks operating in the area.
Residents along Lake Ave. and Mill Point have long objected to the presence of the oil depot in their neighborhood and they submitted a petition to the city council back in October asking the council to deny Superior Fuel’s request to remove the oil tanks and replace them with the propane storage and distribution facility. At an Oct. 21 planning and zoning commission meeting, Mill Point resident Joan Broten told commission members that they had been promised that the oil storage site would be removed upon the sale of Wilderness Fuel. “It’s been unsightly for years,” said Broten. She said residents of Mill Point pay the city $50,000 in property taxes each year, compared to $400 for the fuel storage facility.
The oil depot has been a non-conforming use for decades, but it’s considered to be “grandfathered in” since it predates the adoption of the city’s zoning ordinance. The question, according to Norby and other residents of the Mill Point development, is whether the proposed use is different enough to qualify as a change, which would require that any new structures built on the site be compliant with the current zoning rules. The site is currently classified as Residential-1, a zone district that does not allow fuel storage facilities.
The city’s planning and zoning commission had been considering an initial permit application submitted by Superior Fuel and was assuming, based on attorney’s advice, that the permit could only be issued as a conditional use, even though the R-1 zoning doesn’t allow fuel storage facilities, even with a CUP. When the commission notified the company that it was exercising a 60-day extension in the CUP timeline to further consider the issues surrounding the request, Superior Fuel objected.
Superior Fuel’s attorney, Mark Pilon, with the Duluth-based Hanft Fride law firm, argued in a Nov. 7 letter to zoning administrator Cliff Koski that the city’s zoning ordinance 82 authorizes Koski to issue a land use permit for the propane storage facility without action by planning and zoning.
“The proposed modification is a decrease in an existing non-conforming use under Article XV , Section 15.02, which requires no Commission review or approval,” wrote Pilon. “Accordingly, this matter is properly subject to administrative determination by the Zoning Administrator.”
Koski issued the permit subsequent to receiving the letter, but Norby questioned whether the proposed use is really the same. (See if the permit is available) and said he’d like the city to make a decision based on the advice of its own attorney, rather than Superior Fuel’s.
Council member Joe Morin argued repeatedly at Monday’s council meeting that the use would remain the same, since both the current and proposed use involved fuel storage and loading and unloading. Yet, the permit application submitted by Superior Fuel did indicate that it was seeking a change in use.
But the use is only one of the questions at issue. Article XV, Section 15.01 of Ordinance 82, addresses structures on non-conforming sites, and that could pose a bigger hurdle for Superior Fuel’s request.
That provision states that “No structure shall be moved to a nonconforming lot should the original structure be destroyed by any means.” Superior Fuel has indicated that it plans to dismantle the existing fuel oil tanks, which could be seen as prohibiting the company from then replacing those tanks with a new propane storage tank.
The scenario is akin to a cabin built decades ago ten feet from the water’s edge. That non-conforming structure may be grandfathered-in but if a new owner decides to remove the structure, any new cabin could no longer be non-conforming.
In the case of Superior Fuel, however, there is no way for their proposed new propane storage tank to be compliant with the existing ordinance because it’s located in a residential district.
What language applies?
The actual situation is even more complicated. After further research, Koski noted that the language in Ordinance 82 (Article XV, Section 15.02 and 15.03) cited by Superior Fuel’s attorney may have been superseded by language approved by the city council back in October 1997. That amendment, known as Ordinance 82C, appears to remove references to non-conforming structures and appears far less clear than the language in the original ordinance. Ordinance 82C also erroneously cites the article in the original ordinance that it purports to replace, claiming it is replacing Article XIV, when the language in the original ordinance pertaining to non-conformities is actually contained in Article XV.
What’s more, the original Ordinance 82, as it appears on the city’s website, indicates it was initially approved in February 1997. If so, an attorney could argue that the language in Ordinance 82C, which was approved several months later, would be the relevant ordinance.
Yet Ordinance 82 has clearly been significantly updated subsequent to 1997, including the addition of the entire Article XIV, which relates to zoning for the city’s harbor district. That language was incorporated into Ordinance 82 in 2007. If the council had approved the updated Ordinance 82 in 2007, and possibly even more recently, that leaves wide open the question of which language on non-conforming uses actually applies in this case.
That could prove to be the biggest challenge as the city’s attorney assesses the situation in hopes of charting a clear path for the city.